The Charter of Fundamental Rights of the European Union and the Employment Relation 9781509922659, 9781509922680, 9781509922673

Table of contents :
Preface
Table of Contents
List of Contributors
Abbreviations
1. Introduction
I. Context
II. Objectives
III. Structure and Contents
IV. Conclusions
Part I: General Part
2. The CFREU and its Specific Role to Protect Fundamental Social Rights
I. Introduction
II. The Genesis of Fundamental Social Rights in the Charter of Fundamental Rights
III. The Impact of the Charter on the Practice of the Institutions
IV. The Constitutionalisation of the Charter
V. Conclusion
3. The Future of the Charter on Fundamental Rights of the European Union
I. Introduction
II. The European Pillar of Social Rights
III. ‘Brexit’
IV. The Relation Between the CJEU and the ECTHR
V. Conclusion
4. In Search of the EU’s Social Constitution: Using the Charter to Recalibrate Social and Economic Rights
I. Introduction
II. The Nature of the Social Constitution
III. The Social Constitution and the Internal Market
IV. The Social Constitution and EMU
V. Levels of Governance: The Role of Transnational Social Rights in Framing National-Level Legislation
VI. Conclusions
5. The Concept of the ‘Employment Relation’
I. Introduction
II. The Worker
III. The Employer
IV. The Business Structure
V. Conclusions
6. Application (Article 51) and Limitations (Article 52(1))
Explanations on Article 51 – Field of Application
Explanations on Article 52 – Scope and Interpretation of Rights and Principles
I. Introduction
II. Article 51 CFREU
III. Article 52(1) Limitations under the CFREU
IV. Conclusion
7. Interpretation and Minimum Level of Protection
Explanations on Article 52 – Scope and Interpretation of Rights and Principles
I. Introduction
II. Interpretation
III. Minimum Level of Protection
IV. Application of the Principles in Practice
V. Conclusions
Annexes
8. Procedure: Litigating before EU Courts in the Light of the Charter
I. Introduction
II. Overview of (Judicial) Procedures
III. Limits to Access to EU Courts
IV. The CJEU’S (Limited) Use of the Charter
V. Conclusions
Part II: Specific Articles
Title I – Dignity
9. Article 1 – Human Dignity
Explanations
I. Introduction
II. Content
III. Conclusions
10. Article 5 – Prohibition of Slavery and Forced Labour
Explanations
I. Introduction
II. Content
III. Conclusions
Title II – Freedoms
11. Article 7 – Protection of Private and Family Life
Explanations
I. Introduction
II. Content
III. Conclusions
12. Article 8 – Protection of Personal Data
Explanations
I. Introduction
II. Content
III. Conclusions
13. Article 10 – Freedom of Thought, Conscience and Religion
Explanations
I. Introduction
II. Content
III. Conclusions
14. Article 11 – Freedom of Expression and Information
Explanations
I. Introduction
II. Content
III. Conclusions
15. Article 12 – Freedom of Assembly and of Association
Explanations
I. Introduction
II. Content
III. Conclusions
16. Article 15 – Freedom to Choose an Occupation and Right to Engage in Work
Explanations
I. Introduction
II. Content
III. Conclusion
17. Article 16 – Freedom to Conduct a Business
Explanations
I. Introduction
II. Content
III. Conclusions
18. Article 17(2) – Right to Intellectual Property
Explanations
I. Introduction
II. Content
III. Conclusions
Title III – Equality
19. Articles 20 and 21 – Equality and Non-discrimination
Explanations on Article 20 – Equality
Explanations on Article 21 – Non-Discrimination
I. Introduction
II. Content
III. Conclusions
20. Article 23 – Equality Between Men and Women
Explanations
I. Introduction
II. Content
III. Conclusions
Title IV – Solidarity
21. Article 27 – Worker’s Right to Information and Consultation within the Undertaking
Explanations
I. Introduction
II. Content
III. Conclusions
22. Article 28 – Right of Collective Bargaining and Action
Explanations
I. Introduction
II. Content
III. Conclusions
23. Article 30 – Protection in the Event of Unjustified Dismissal
Explanations
I. Introduction
II. Content
III. Conclusion
24. Article 31 – Fair and Just Working Conditions
Explanations
I. Introduction
II. Content
III. Conclusions
25. Article 32 – Prohibition of Child Labour and Protection of Young People at Work
Explanations
I. Introduction
II. Content
III. Conclusions
26. Article 33 – Family and Professional Life
Explanations
I. Introduction
II. Content
III. Conclusions
Title VI – Justice
27. Article 47 – Right to an Effective Remedy and to a Fair Trial
Explanations
I. Introduction
II. Content
III. Conclusions
28. Conclusions
I. The Last Part of a Trilogy
II. Great Expectations
III. A Tale of two Cities
IV. Hard Times
V. Always Look on the Bright Side of Life: Towards a Christmas Carol After All?
Bibliography
Index

Citation preview

THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION AND THE EMPLOYMENT RELATION The Charter of Fundamental Rights of the European Union is the most­ developed and comprehensive legally binding human rights instrument in the social field of the European Union. It is becoming increasingly important and is the first instrument that includes both civil and political rights on the one hand and social rights on the other. Despite this, the Court of Justice of the ­European Union has only rarely dealt with fundamental social rights. In this context, employment rights need to be examined in this new rights framework. Following on from previous volumes setting out links between European labour law and fundamental social rights (as enshrined in relevant UN, ILO and Council of Europe instruments), in this book the ETUI Transnational Trade Union Rights (TTUR) Expert Network examines the justiciability of social rights and critically analyses the effectiveness of those rights embodied in the EU Charter. Thus, this book completes the trilogy of ETUI TTUR books on fundamental social rights at European level following the publication, also by Hart Publishing, of The European Convention of Human Rights and the Employment Relation (2013) and The European Social Charter and the Employment Relation (2017).

ii

The Charter of Fundamental Rights of the European Union and the Employment Relation Edited by

Filip Dorssemont Klaus Lörcher Stefan Clauwaert and

Mélanie Schmitt

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2019 Copyright © The editors and contributors severally 2019 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2019. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Dorssemont, Filip, editor.  |  Lörcher, Klaus, editor.  |  Clauwaert, Stefan, editor.  |  Schmitt, Mélanie, editor. Title: The Charter of Fundamental Rights of the European Union and the Employment Relation / edited by Filip Dorssemont, Klaus Lörcher, Stefan Clauwaert and Mélanie Schmitt Description: Oxford, UK ; Portland, Oregon : Hart Publishing, 2019.  |  Includes bibliographical references and index. Identifiers: LCCN 2018052378 (print)  |  LCCN 2018055176 (ebook)  |  ISBN 9781509922666 (Epub)  |  ISBN 9781509922659 (hardback) Subjects: LCSH: Labor laws and legislation—European Union countries.  |  Charter of Fundamental Rights of the European Union (2000 December 7) Classification: LCC KJE2855 (ebook)  |  LCC KJE2855 .C476 2019 (print)  |  DDC 344.2401—dc23 LC record available at https://lccn.loc.gov/2018052378 ISBN: HB: 978-1-50992-265-9 ePDF: 978-1-50992-267-3 ePub: 978-1-50992-266-6 Typeset by Compuscript Ltd, Shannon

To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

This publication is dedicated to the late members of the ETUI Transnational Trade Union Rights Expert Network (TTUR): Prof Dr Brian Bercusson, also founder of the TTUR, Prof Dr Thomas Blanke Prof Dr Yota Kravaritou

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Preface

I

t is almost 20 years ago – in 1999 – that the so-called ‘European Convention’ was called by the Cologne European Council to draft the Charter of Fundamental Rights of the European Union (CFREU). The fruits of the Convention’s work, consolidating and enshrining the civil, political, social and economic rights of EU citizens at EU level was proclaimed politically and formally by the leaders of the institutions of the European Union on 7 December 2000 in Nice. However, it took another 10 years before, with the incorporation/ annexation of the (revised) CFREU in the Treaty of Lisbon in 2009, the EU (finally) had its own legally binding catalogue of fundamental rights. Article 6 paragraph 1 of the Treaty on the European Union (TEU) provides indeed that The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the ­Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

Being convinced, long before its legal entry into force, of the importance the CFREU could have in enhancing and promoting fundamental social rights and (European) labour law in the EU, in 2006 the ETUI Transnational Trade Union Rights Experts Network (TTUR), under the leadership of the late Brian Bercusson, produced one of the first in-depth analyses of the CFREU, with a particular and exclusive focus on (European) labour law.1 Since 2009 there have been several new developments that touch directly and indirectly on the CFREU. They include increased use of the CFREU in both European and national jurisprudence; failed – for the moment – EU accession to the European Convention of Human Rights;2 an economic and financial crisis, which triggered austerity measures that have undermined in particular fundamental social rights in a majority of Member States; and finally the recently

1 B Bercusson, European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006). 2 Despite being prescribed in Art 6 para 2 TEU, ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.’

viii  Preface proclaimed European Pillar of Social Rights, which is largely inspired by and builds on – or at least that is the intent – the CFREU. Against this background and new developments, the TTUR network felt the need to enrich the ongoing academic and political debate and stimulate recourse to the CFREU by providing an in-depth analysis of its role and impact on rights in the employment relation. Whereas this volume, The Charter of Fundamental Rights of the European Union and the Employment Relation, is the result of an ambitious two-year research project of the TTUR network, it also forms the third and last part of a ‘European human rights trilogy’ on the employment relation, thus complementing two previous TTUR publications: The European Convention of Human Rights and the Employment Relation (Oxford, Hart Publishing, 2013) and The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2016).3 As an independent expert research network attached to the European Trade Union Institute (ETUI),4 the TTUR was founded in 1999 by the late Brian Bercusson and brings together leading labour law professors/experts from nine member states with an active interest in the development of EU labour law and ETUI researchers. The TTUR is currently composed of: Niklas Bruun (Universities of Stockholm, Sweden and Helsinki, Finland), Simon Deakin (Cambridge University, UK), Filip Dorssemont (Catholic University of Louvain [UCL], Belgium), Antoine Jacobs (Tilburg University, the Netherlands), Csilla Kollonay-Lehoczky (Central European University, Budapest, Hungary), Aristea Koukiadaki (University of Manchester, UK), Barbara Kresal (University of Ljubljana, Slovenia), Klaus Lörcher (former legal secretary of the E ­ uropean Union Civil Service Tribunal and Legal/Human Rights adviser to ETUC), Mélanie Schmitt (University of Strasbourg, France), Joanna Unterschütz (University of Business and Administration, Gdynia, Poland), Bruno Veneziani (University of Bari, Italy) and, on behalf of ETUI, Zane Rasnača (researcher at ETUI) and Stefan Clauwaert (ETUI senior researcher and TTUR coordinator on behalf of ETUI). For this publication, several leading external experts have joined this project, to which they have made valuable contributions. We would like to thank in particular: Elliot Cobbaut (Catholic University of Louvain (UCL), Belgium), Olivier De Schutter of the Catholic University of Louvain (UCL), Centre for Philosophy of Law (CPDR), Belgium); Frank Hendrickx (Catholic University of Leuven (KUL), Belgium), Fleur Laronze (University of Strasbourg, France) 3 Within the framework of other scientific projects conducted by the TTUR network and aimed at strengthening awareness of and recourse to international and European legal sources of social and labour rights, the TTUR has also produced the following publications: N Bruun, K Lörcher and I Schömann, The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012); N Bruun, K Lörcher and I Schömann, The Economic and Financial Crisis and Collective Labour Law in Europe (Oxford, Hart Publishing, 2014). 4 See: www.etui.org/Networks/The-Transnational-Trade-Union-Rights-Experts-Network-TTUR.

Preface  ix and Marco Rocca (CNSR Researcher, University of Strasbourg, France). By this means, this publication is yet another valuable result of the joint efforts of distinguished and up-and-coming experts in the field of human rights and labour law working in or originating from a variety of EU Member States. As already mentioned, the TTUR delivered one of the first labour law analyses of the then still non-legally binding CFREU in 2006. That analysis also contained contributions by founding TTUR members Brian Bercusson, Thomas Blanke and Yota Kravaritou, who in the meantime have sadly passed away. The TTUR therefore decided to dedicate this publication to these three esteemed late colleagues and friends as a tribute to their enormous work both within the TTUR and in the general academic (labour) law community. The CFREU has been binding for more than a decade now. The ETUI therefore found it timely and appropriate to support an in-depth study of the experiences and potential of this instrument. This book highlights the CFREU’s potential as the main EU legal source of fundamental (social) rights, together with the dynamic case law of the Court of Justice of the European Union (CJEU) but without losing sight of the place of the CFREU in the larger field of existing international and European human rights instruments stemming from the United Nations (UN), the International Labour Organisation (ILO) and the Council of Europe. Throughout this publication the TTUR does, however, also express its general concern that the CJEU – at least for the moment – does not sufficiently recognise the importance and significance of the Solidarity chapter of the CFREU. A different approach would, however, be necessary in order for the European Union to fulfil its social commitments and to uphold the social dimension of the EU project in general and to ensure proper implementation of the recently proclaimed European Pillar of Social Rights in particular. The ETUI would like to express its gratitude to the authors for their in-depth, comprehensive but at the same time prospective analyses, which show how a systematic examination of fundamental social rights can help and encourage academics and legal practitioners, as well policymakers to achieve a – much needed – more social rights-based European Union and Europe in general. Maria Jepsen Director of the Research Department ETUI

x

Table of Contents Preface���������������������������������������������������������������������������������������������������������vii List of Contributors�������������������������������������������������������������������������������������xv Abbreviations��������������������������������������������������������������������������������������������xvii 1. Introduction��������������������������������������������������������������������������������������������1 Klaus Lörcher, Filip Dorssemont, Stefan Clauwaert and Mélanie Schmitt PART I GENERAL PART 2. The CFREU and its Specific Role to Protect Fundamental Social Rights����9 Olivier De Schutter 3. The Future of the Charter on Fundamental Rights of the European Union��������������������������������������������������������������������������39 Antoine Jacobs 4. In Search of the EU’s Social Constitution: Using the Charter to Recalibrate Social and Economic Rights���������������������������������������������53 Simon Deakin 5. The Concept of the ‘Employment Relation’�������������������������������������������81 Joanna Unterschütz 6. Application (Article 51) and Limitations (Article 52(1))������������������������ 101 Aristea Koukiadaki 7. Interpretation and Minimum Level of Protection��������������������������������� 135 Klaus Lörcher 8. Procedure: Litigating before EU Courts in the Light of the Charter������� 163 Zane Rasnača PART II SPECIFIC ARTICLES Title I – Dignity 9. Article 1 – Human Dignity������������������������������������������������������������������� 191 Barbara Kresal

xii  Table of Contents 10. Article 5 – Prohibition of Slavery and Forced Labour��������������������������� 209 Niklas Bruun and Joanna Unterschütz Title II – Freedoms 11. Article 7 – Protection of Private and Family Life����������������������������������� 229 Frank Hendrickx 12. Article 8 – Protection of Personal Data������������������������������������������������� 249 Frank Hendrickx 13. Article 10 – Freedom of Thought, Conscience and Religion������������������ 273 Fleur Laronze 14. Article 11 – Freedom of Expression and Information���������������������������� 295 Elliot Cobbaut 15. Article 12 – Freedom of Assembly and of Association�������������������������� 315 Antoine Jacobs 16. Article 15 – Freedom to Choose an Occupation and Right to Engage in Work����������������������������������������������������������������������������������������������� 331 Simon Deakin 17. Article 16 – Freedom to Conduct a Business����������������������������������������� 351 Bruno Veneziani 18. Article 17(2) – Right to Intellectual Property���������������������������������������� 369 Niklas Bruun Title III – Equality 19. Articles 20 and 21 – Equality and Non-discrimination�������������������������� 383 Niklas Bruun 20. Article 23 – Equality Between Men and Women������������������������������������ 401 Csilla Kollonay Lehoczky Title IV – Solidarity 21. Article 27 – Worker’s Right to Information and Consultation within the Undertaking������������������������������������������������������������������������ 429 Bruno Veneziani 22. Article 28 – Right of Collective Bargaining and Action������������������������� 465 Filip Dorssemont and Marco Rocca 23. Article 30 – Protection in the Event of Unjustified Dismissal����������������� 505 Mélanie Schmitt 24. Article 31 – Fair and Just Working Conditions�������������������������������������� 535 Klaus Lörcher

Table of Contents  xiii 25. Article 32 – Prohibition of Child Labour and Protection of Young People at Work������������������������������������������������������������������������������������� 567 Antoine Jacobs 26. Article 33 – Family and Professional Life���������������������������������������������� 583 Csilla Kollonay Lehoczky and Barbara Kresal Title VI – Justice 27. Article 47 – Right to an Effective Remedy and to a Fair Trial����������������� 609 Klaus Lörcher 28. Conclusions����������������������������������������������������������������������������������������� 633 Filip Dorssemont, Klaus Lörcher, Stefan Clauwaert and Mélanie Schmitt Bibliography���������������������������������������������������������������������������������������������� 647 Index��������������������������������������������������������������������������������������������������������� 667

xiv

List of Contributors Niklas Bruun is Professor of Law at the Hanken School of Economics, Helsinki, Finland. He is also a guest professor (part time) at the Faculty of Law, Stockholm University. He is a former member of the Freedom of Association Committee (ILO) and the CEDAW Committee (UN). Stefan Clauwaert is Senior Researcher at the European Trade Union Institute, (ETUI), Belgium and coordinating the TTUR on behalf of the ETUI. He also represents the European Trade Union Confederation (ETUC) in the Council of Europe Governmental Committee to the European Social Charter/European Code of Social Security and the Steering Committee for Human Rights (CDDH). Elliot Cobbaut is an assistant on Social Law at the Faculty of Law and Criminology. SSH/JURI – Institut pour la recherche interdisciplinaire en sciences juridiques (JURI) of the Université catholique de Louvain (UCL), Belgium. Simon Deakin is Professor of Law at the University of Cambridge, UK. Olivier De Schutter is Professor at the University of Louvain (UCL) (Belgium) and Member of the UN Committee on Economic, Social and Cultural Rights. Filip Dorssemont is Professor of Law at the Catholic University of Louvain (UCL), Belgium and Guest Lecturer at the Vrije Universiteit Brussel (VUB), Belgium. Frank Hendrickx is Professor of Law and Director of the Institute for Labour Law at the Catholic University of Louvain (KUL), Belgium. He also holds a Jean Monnet Chair in European labour law at the Research Institute ReflecT of the University of Tilburg, The Netherlands. Antoine Jacobs is Emeritus Professor of Law at the University of Tilburg, The Netherlands. Csilla Kollonay-Lehoczky is Professor Emerita, Central European University Legal Studies Department, Budapest, Hungary. Aristea Koukiadaki is Senior Lecturer in Employment Law at the University of Manchester, UK. Barbara Kresal is Professor of Labour law and Social Security at the University of Ljubljana (Slovenia) and member of the European Committee of Social Rights (ECSR).

xvi  List of Contributors Fleur Laronze is Maître de conférences in Private Law at the Faculty of Law, UMR DRES équipe Droit social, University of Strasbourg, France. Klaus Lörcher is former Legal/Human Rights Adviser to the European Trade Union Confederation (ETUC) and former Legal Secretary to the Civil Service Tribunal of the European Union, Germany. Zane Rasnača is a researcher at the European Trade Union Institute (ETUI) and an associated research fellow at the Institute for European Law (KU Leuven), Belgium. Marco Rocca is CNRS Researcher (UMR 7354 DRES), University of Strasbourg, France, and Lecturer in European and International Labour Law (Université de Liège, Belgium). Mélanie Schmitt is Maître de conférences HDR at the Faculty of Law and and Deputy Director of UMR DRES, équipe Droit social, of the University of Strasbourg, France. Joanna Unterschütz is Professor of Law at the University and Business and Administration and Director of the Institute of Labour Law and Social Security, Gdynia, Poland. Bruno Veneziani is Professor of Labour Law and Comparative Trade Union Law, University of Bari, Italy.

Abbreviations AG

Advocate General (CJEU)

CCPR

Human Rights Committee on Civil and Political Rights (UN)

CEACR

Committee of Experts on the Application of Conventions and Recommendations (ILO)

CEDAW

Convention on the Elimination of All Forms of Discrimination against Women / Committee on the Elimination of Discrimination against Women (UN)

CESCR

Committee on Economic, Social and Cultural Rights (UN)

CETS

Council of Europe Treaty Series (followed by the respective No.)

CFA

Committee on Freedom of Association (ILO)

CFI

Court of First Instance (EU), now General Court

CFREU

Charter of Fundamental Rights of the European Union

Charter

Charter of Fundamental Rights of the European Union

CoE

Council of Europe

Conclusions

Conclusions of the ECSR (CoE)

Commission

European Commission (EU)

Community Charter

Community Charter on the Fundamental Social Rights for Workers (1989)

CRC

Convention on the Rights of the Child (UN) / Committee on the Rights of the Child

CRPD

International Convention on the Rights of Persons with Disabilities / Committee on the Rights of Persons with Disabilities

CSR

Country Specific Recommendations (EU)

CST

Civil Service Tribunal of the European Union

dec.

((in-)admissibility) decision by the ECtHR

xviii  Abbreviations ECB

European Central Bank (EU)

ECHR

European Convention on Human Rights (Council of Europe)

ECLI

European Case Law Identifier

ECR

European Court Reports

ECSR

European Committee on Social Rights (Council of Europe)

ECtHR

European Court of Human Rights (Council of Europe)

EP

European Parliament (EU)

EPSR

European Pillar of Social Rights (EU)

ESC

European Social Charter (1961) (Council of Europe)

ETUC

European Trade Union Confederation

ETUI

European Trade Union Institute

GB

Governing Body (ILO)

GC

General Court of the European Union / Grand Chamber (either CJEU or ECtHR)

GCEU

General Court of the European Union

GDPR

General Data Protection Regulation (EU)

ICCPR

International Covenant on Civil and Political Rights (UN)

ICESCR

International Covenant on Economic, Social and Cultural Rights (UN)

ICRMW

Convention on migrant workers and their families (UN)

ILC

International Labour Conference (ILO)

ILO

International Labour Organis[z]ation / International Labour Office

MoU

Memorandum of Understanding (EU)

MS

Member States (of the respective international/European organisation)

OJ

Official Journal (L - Legislation; C - Communications) (EU)

para.

Paragraph (of a legal provision or of a document like a judgment)

Pillar

European Pillar of Social Rights (EU)

Abbreviations  xix Prot.

Protocol (to an international instrument)

RESC

Revised European Social Charter (1996) (Council of Europe)

SR

Staff Regulation (EU)

TEU

Treaty on the European Union

TFEU

Treaty on the Functioning of the European Union

TTUR

Transnational Trade Union Rights Expert Group (ETUI)

UN

United Nations

v

versus (defendant of a case)

xx

1 Introduction KLAUS LÖRCHER, FILIP DORSSEMONT, STEFAN CLAUWAERT AND MÉLANIE SCHMITT

‘Labour rights are human rights.’ This principle is expressed in the Charter of Fundamental Rights of the European Union (Charter or CFREU), the most developed and comprehensive legally binding human rights instrument – also in the social field – at EU level. In this respect it is – or at least should be – becoming more and more important. It is well known that this instrument is the first to include both civil and political rights, on one hand, and social rights, on the other, after a very long period of separation between the so-called first- and second-generation human rights. I. CONTEXT

The Court of Justice of the European Union’s (CJEU) jurisprudence on CFREU has been increasing, dealing with a number of articles. However, only rarely has it dealt with fundamental social rights. Given this context, and after nearly a decade since the Charter became legally binding, this makes it all the more relevant to focus now on CFREU employment rights and to explore them in detail. A first assessment of the CFREU by the European Trade Union Institute (ETUI) Transnational Trade Union Rights network (TTUR)1 took place under the leadership of Brian Bercusson, three years before the Charter became legally binding.2 Several new developments have taken place in the meantime. Without being exhaustive, one might refer in particular to the following: –– the CFREU is now legally binding; –– the (CJEU’s) jurisprudence using or referring to the CFREU is increasing;3 1 For more information on the TTUR, its activities and publications, see: https://www.etui.org/ Networks/The-Transnational-Trade-Union-Rights-Experts-Network-TTUR. 2 B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos Verlag, 2006). 3 The CJEU’s Grand Chamber judgments of 6 November 2018 on Article 31(2) of the Charter were published following the delivery of the manuscripts. Accordingly, they are not dealt with in detail but only referred to in the chapters most concerned.

2  Klaus Lörcher, Filip Dorssemont, Stefan Clauwaert and Mélanie Schmitt –– the reports on the CFREU’s implementation (Commission, Parliament, Fundamental Rights Agency (FRA)) are at least sometimes becoming points of reference; –– the still increasing and sometimes already overwhelming quantity of academic literature (commentaries, articles, analyses and so on); –– the problems related to ‘Better Regulation’, REFIT, Economic Governance, Brexit and so on; and finally, –– the impact of the recently proclaimed European Pillar of Social Rights. The wider European legal context has already been analysed by the TTUR Group with two main publications putting the employment relation at the heart of human rights standards coming from the Council of Europe: –– The European Convention on Human Rights and the Employment Relation (hereinafter: the ECHR publication);4 –– The European Social Charter and the Employment Relation (hereinafter: the ESC publication).5

II. OBJECTIVES

It is against this background that this publication will complete the ‘European human rights trilogy’ concerning the ‘employment relation’.6 In putting this publication together, in principle we envisaged applying the same approach as in the two previously mentioned books: –– providing arguments for the justiciability of social rights; –– making the employment rights in the CFREU more widely known in legal circles; –– being part of a development giving those rights more visibility by contributing to the increasing (legal) debate; –– contributing to strengthen the impact of the social rights also in respect of Europe’s fundamental rights architecture, in particular with regard to the Council of Europe’s instruments (ECHR and ESC), but thereby also taking into account in particular the international dimension (UN and ILO);

4 F Dorssemont, K Lörcher, I Schömann (eds), The European Convention on Human Rights and the Employment Relation (Oxford, Hart Publishing, 2013). 5 N Bruun, K Lörcher, I Schömann, S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017). 6 See for the further two books elaborated by the TTUR Group: N Bruun, K Lörcher, I Schömann (eds), The Economic Crisis and Collective Labour Law (Oxford, Hart Publishing, 2014); N Bruun, K Lörcher, I Schömann (eds), Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012).

Introduction  3 –– taking account within the framework of the description of the context (including, if appropriate, real problems in the world of work, such as possible data on non-implementation, austerity measures, digitalisation ­ and so on); –– looking at gaps in the explicit guarantee of fundamental social rights that cannot be solved by (progressive) interpretation; –– providing guidance to trade unions, NGOs and others on how to make use of the Charter in order to defend and promote fundamental social rights in the world of work. In particular, the last four indents could be considered to be the ‘added value’ of this publication. III.  STRUCTURE AND CONTENTS

From an editorial point of view, the general structure of this publication was also envisaged to be in harmony with the ECHR and ESC publications. First, the subject is approached from two angles. Part I (‘General Part’) is aimed at dealing with all relevant transversal questions. This includes the description and analysis of the general framework of the Charter in the following introductory chapters: –– the CFREU and its specific role of protecting fundamental social rights (including Articles 2, 3 and 6 TEU); –– the CFREU in the future of Europe (dealing with problems and challenges coming from, inter alia, ‘Better Regulation’, REFIT, European Pillar of Social Rights and Brexit); –– the EU’s Social Constitution in relation to the ‘Economic Constitution’. Before starting with the comments on the specific rights guaranteed by the Charter, the general concept of the ‘employment relation’, as well as the impact of the ‘horizontal’ provisions in Title VII (Articles 51–53) are also addressed. With regard to the latter, it appeared useful to separate their respective contents by theme, not by the order of the Articles concerned. Accordingly, three chapters address the following: –– the concept of the ‘Employment Relation’ (containing, as transversal substantive issues, in particular the definition of ‘workers’ and ‘employers’); –– the ‘Field of Application and Limitations’ (Articles 51 and 52(1)). This core issue pays specific attention to the addressees of the Charter – on one hand, the EU, and on the other hand, the Member States implementing EU law – and addresses the general framework for assessing the conformity of limitations on the Charter’s rights;

4  Klaus Lörcher, Filip Dorssemont, Stefan Clauwaert and Mélanie Schmitt –– ‘Interpretation and Minimum Level of Protection’ deals in particular with the Preamble, as well as with Articles 52(2) to (7) and 53. Finally, and also in line with the ECHR and ESC publications, a specific chapter on procedure before the EU courts (mainly Articles 263(4) and 267 TFEU) also reflects on possible litigation strategies for trade unions. Part II (‘Specific articles’) provides legal analyses of the individual articles addressing issues of the employment relation. Here, a (difficult) choice had to be made concerning which articles should be commented on. Of course, those Articles that appear to be of particular importance are analysed: Articles 1, 5, 7, 8, 10, 11, 12, 15, 16, 17(2), 20, 21, 23, 27, 28, 30, 31, 32, 33 and 47. Conversely, Articles that have only a certain link to the employment relation, but which are considered to be of minor importance are not commented on separately, but possibly referred to in the comments on other Articles (eg Article 17(1) in the chapter on Article 16, Article 26 in the chapter on Article 21 and Article 29 in the chapter on Article 15). In order to provide readers with a transparent structure of the commentaries in Part II (Specific Articles) it is oriented towards the following guidelines: I. Introduction A. Context and main contents B. Relationship to other provisions of the Charter C. Relationship to other relevant instruments i. EU instruments ii. Council of Europe instruments iii. ILO instruments iv. UN instruments v. Other instruments (if appropriate) II. Contents A. General observations B. Field of application C. Specific rights D. Limitations E. Enforcement III. Conclusions In order to show, as much as possible, the material scope of the provisions, the focus of the commentaries will be on ‘Specific rights’ (II.C). Thus, readers might find more easily what might be most relevant in the context of the ‘employment relation’. However, the material scope has to be distinguished from the ‘Field of application’ (Article 51(1)), which defines the ‘door opener’ for the application of the Charter in relation to Member States, to whom it can be applied ‘only when they are implementing Union law’. According to the provision, the fundamental rights are also addressed to the EU institutions. Therefore, several

Introduction  5 contributions explicitly refer to so-called ‘staff cases’ (ie cases involving persons employed by the EU institutions), in particular when implementing acts (such as Directives) are lacking. IV. CONCLUSIONS

It is hoped that this publication will contribute to increasing and enhancing people’s awareness and the impact of the fundamental social rights in the employment relation, thus encouraging academics and legal practitioners (not least, judges at national and, in particular, EU level) to take up the Charter as a vibrant instrument for protecting and promoting social rights in Europe. Although all the contributions have been extensively discussed in the TTUR network, the individual authors bear sole responsibility for their own contributions, which do not necessarily reflect the views of the other authors of this volume.

6

Part I

General Part

8

2 The CFREU and its Specific Role to Protect Fundamental Social Rights OLIVIER DE SCHUTTER

I. INTRODUCTION

T

he integration of social rights in the constitutional structure of the European Union faces three challenges. First, social rights are generally perceived to be different from civil and political rights, in that they would impose on States positive obligations – obligations to take measures  – and would be particularly costly to realise. The idea was already present in the Universal Declaration of Human Rights (UDHR), which the United Nations General Assembly adopted in 1948, putting the promotion and protection of human rights at the heart of post-Second World War reconstruction: the UDHR anticipated that the realisation of economic and social rights was to be achieved ‘through national effort and international cooperation and in accordance with the organisation and resources of each State’, suggesting therefore that, in contrast to other human rights, social rights did not impose ‘immediate’ obligations, and thus could not be enforced through normal judicial means.1 This approach was further confirmed when, in 1966, the International Covenant on Economic, Social and Cultural Rights was adopted to implement the promises of the Declaration in the form of a binding international treaty.2 The Covenant committed the States Parties to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of [their] available resources, with a view to achieving progressively the full realisation of the rights recognised in the … Covenant by all appropriate means, including particularly the adoption of legislative measures.3 1 These carefully crafted terms appear in Art 22 of the Declaration, which defines the right to social security as the first of the social rights it lists. See GA Res 217, UN GAOR, 3d sess, UN Doc A/810 (1948) (Art 22). 2 GA res 2200A (XXI), 21 UNGAOR Supp (No 16) at 49, UN Doc A/6316 (1966), 993 UNTS 3, entered into force 3 January 1976. 3 Art 2(1) of the International Covenant on Economic, Social and Cultural Rights.

10  Olivier De Schutter To many commentators, this simply confirmed the marginalisation of social rights. Brownlie, a leading international law publicist, described the Covenant as ‘programmatic and promotional’ in the third edition of his Principles of Public International Law, published in 1979;4 a law and development scholar writing in 1984 remarked that though the International Covenant on Economic, Social and Cultural Rights ‘speaks in the language of rights, [it] refers to the realities of programs’;5 and jurists such as the Belgian Mark Bossuyt or the Dutch EW Vierdag voiced their scepticism as regards the ability of courts to supervise compliance with economic, social and cultural rights, which they saw as of a fundamentally distinct nature from civil and political rights.6 On the European continent, this downgrading of social rights was expressed by the parallel adoption of the European Convention on Human Rights in 1950 and, 10 years later, of a European Social Charter, subject not to supervision by an international court, but to a weak form of monitoring through independent experts whose views were to be filtered by representatives of governments. Sixty years later, we have still not entirely moved beyond this initial suspicion that social rights are not fully enforceable rights:7 the EU Charter of Fundamental Rights itself, for all its claims to be a ‘modern’ instrument in the vanguard of human rights instruments, still embodies the view that, to the extent that social rights require of States that they do certain things – such as guarantee access to certain goods or provide certain services in the areas of education, housing, health care or social protection – they cannot be treated as rights that merely impose on States that they abstain from certain kinds of interference. The two other challenges are specific to the construction of the European Union. First, if we see social rights as imposing on States certain positive duties, does it not follow that, by committing the EU to comply with such rights, we would in fact be transferring further powers to the EU? This fear that the pledge to comply with social rights would lead to an expansion of the competences

4 Ian Brownlie, Principles of Public International Law (Oxford, Clarendon Press, 1979) 572–73. 5 David Trubek, ‘Economic, Social and Cultural Rights in the Third World: Human Rights Law and Human Needs Programs’ in T Meron (ed), Human Rights in International Law: Legal and Policy Issues (Oxford, Clarendon Press, 1984) 205–71, at 231. 6 Mark Bossuyt, ‘La distinction juridique entre les droits civils et politiques et les droits économiques, sociaux et culturels’ (1978) 9 Revue des droits de l’homme 69; EW Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69–105. There were exceptions, of course: GJH van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some Traditional Views’ in P Alston and K Tomaševski (eds), The Right to Food, Netherlands Institute of Human Rights (SIM) (Dordrecht, Martinus Nijhoff, 1984) 97–110. 7 See the Report of the Special Rapporteur on extreme poverty and human rights, Mr Philip Alston, to the 32nd session of the Human Rights Council (A/HRC/32/31) (28 April 2016) (highlighting how, in practice, economic, social and cultural rights have been marginalised in comparison with civil and political rights, and proposing a recognition, institutionalisation and accountability (RIA) framework – focusing primary attention on ensuring recognition of the rights, institutional support for their promotion and accountability mechanisms for their implementation – as a means to overcome the neglect of economic, social and cultural rights as human rights).

CFREU and Fundamental Social Rights  11 of the EU ‘through the back door’ played a major role in the negotiations that led to the adoption of the Charter of Fundamental Rights. Second, the original understanding of European integration in the 1957 Treaty of Rome establishing the European Economic Community was premised on the decoupling of the economic and the social spheres in the European project. The European Union was tasked with establishing an internal market, characterised by the protection of economic freedoms and the prohibition of distortions of competition: these areas were thus removed from politics, to be made supranational. The ­protection of social rights, on the other hand (the welfare state), remained in the hands of the Member States and thus subject to political contestation at the national level: Europe was conceived according to principles of a dual polity. Its ‘economic constitution’ was non-political in the sense that it was not subject to political interventions. This was its constitutional-supranational raison d’être. Social policy was treated as a categorically distinct subject. It belonged to the domain of political legislation, and, as such, had to remain national.8

For all these reasons, social rights could penetrate the legal order of the EU only late in the day, once it became clear that the project of establishing the internal market would lose its legitimacy unless it comprised a ‘social dimension’; and they did so only under strict conditions, to ensure they would not disrupt the project of European integration. The aim of this chapter is to show how the Charter of Fundamental Rights both recognises social rights as part of the fundamental rights acquis of the Union and betrays the fears that have always imposed limitations on such recognition. It places the social provisions of the Charter within the broader context of social provisions in the constitutional architecture of the EU in order to assess the Charter’s added value. It first recalls the conditions under which the Charter of Fundamental Rights was drafted and how its social provisions were inspired by the existing acquis of social rights, both in EU law and in regional or international human rights instruments (section II). Next, it assesses the impact of the Charter on the working methods of the European Commission and the Council of the EU (section III). It then turns to the implications of the constitutionalisation of the Charter by the Treaty of Lisbon (section IV). It examines in this regard a number of questions that are crucial to assessing the contribution of the Charter to Social Europe: they include the distinction between ‘rights’ and ‘principles’ presupposed in the amended version of the Charter; the positive duties that may be imposed on the basis of the Charter; and the role of the Charter in influencing the exercise by the institutions of the EU of the competences they have been attributed. A brief conclusion is also offered (section V). 8 Christian Joerges and Florian Rödl, ‘Informal Politics, Formalised Law and the “Social Deficit” of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval’ (2009) 15 European Law Journal 1, 1–19, at 5.

12  Olivier De Schutter II.  THE GENESIS OF FUNDAMENTAL SOCIAL RIGHTS IN THE CHARTER OF FUNDAMENTAL RIGHTS

A.  The Antecedents The adoption of the European Union Charter of Fundamental Rights at the Nice Summit of December 2000 marked the conclusion of a process that was at least 10 years in the making. A first significant step towards a Bill of Rights for the EU was taken by the European Parliament in 1989. Building on the new legitimacy it had acquired after it was first elected through universal suffrage in 1979 – something that had already emboldened it to adopt the proposal for a Draft Treaty establishing the European Union in 1984, at the initiative in particular of the European federalist Altiero Spinelli – the European Parliament adopted on 12 April 1989 a non-binding Declaration of Fundamental Rights and Freedoms which, pending the adoption of a binding instrument, it presented as a restatement of ‘the legal principles already accepted by the Community’.9 The document was seen as supplementing the Draft Treaty establishing the European Union. But it was also, more importantly, a message about the need to strengthen the legitimacy of further steps towards European integration, at a time when (following the adoption of the Single European Act in 1986) a significant effort was being made to ‘complete’ the single market by the deadline of 31 December 1992. The Declaration it adopted in 1989 contained a full list of fundamental rights, including not only the classic civil and political rights listed in the European Convention on Human Rights, but also economic and social rights such as the freedom to choose an occupation (Article 12), the right to just working conditions and to health and safety in the workplace, as well as ‘a level of remuneration which makes it possible to lead a decent life’ (Article 13), the right to collective action and to collective bargaining (Article 14), and the right to education (Article 16). It included a provision on ‘social welfare’ recognising the right of everyone to ‘benefit from all measures enabling them to enjoy the best possible state of health’, the right to social security, the right to social and medical assistance and, for ‘those who, through no fault of their own, are unable to house themselves adequately’, ‘the right to assistance in this respect from the appropriate public authorities’ (Article 15). It also made reference to the need for Community policy to take into account ‘the preservation, protection and improvement of the quality of the environment’ and ‘the protection of consumers and users against the risks of damage to their health and safety and against unfair commercial transactions’, two objectives for the attainment of which the Community institutions were required to adopt all the necessary measures (Article 24). A provision on the field of application of the Declaration stated



9 OJ

C 120 of 16.5.1989, 51.

CFREU and Fundamental Social Rights  13 that the rights and freedoms it listed were to ‘afford protection for every citizen in the field of application of Community law’ (Article 25). Altogether, the Declaration of Fundamental Rights and Freedoms was a solid document, written in clear and precise language, and providing a generally sound summary of the acquis of the European Community in the field of fundamental rights. The European Parliament failed, however, to convince the Council of Ministers and the European Commission to join in adopting the Declaration or pledging to abide by the rights it listed. The European Commission’s lack of enthusiasm may be attributable to the fact that the Declaration was adopted by the European Parliament at the time the Commission was preparing a text that would be presented to the Strasbourg European Council of December 1989, under the name of the ‘Community Charter of Fundamental Social Rights for Workers’: a first draft of this ‘Charter of Fundamental Social Rights’, as it was initially called, was presented on 30 May 1989, only weeks after the Parliament’s vote on its Declaration of Fundamental Rights and Freedoms.10 The European Commission presented this document as a follow-up to the June 1988 Hanover Summit, where the European Council had affirmed the importance of the social aspects of the single market. It is likely that, at a time when the Commission was pressing for the adoption of a large number of measures to be adopted in order to achieve the single European market by the deadline of 31 December 1992, it considered that securing agreement on the Charter on Fundamental Social Rights should be the priority, and that the proposal of the European Parliament for a broader Declaration on Fundamental Rights and Freedoms was an unnecessary distraction from that objective. It may also be assumed that (even apart from the resistance of the United Kingdom, at the time, to any initiative that might strengthen the federal nature of the European Community) the governments of the Member States were not particularly keen to endorse a text that they had neither requested nor called for, because this would have created the impression that the European Parliament was now supposed to define the speed and direction of integration. None of these reactions were based on the content of the Declaration of Fundamental Rights and Freedoms itself, or on an assessment of its quality as a legal document. But they were sufficient to delay, by 10 years, the adoption of a Bill of Rights specific to the European Union. The issue of a catalogue of fundamental rights was again put on the European agenda in the late 1990s, this time primarily at the initiative of the European Commission, although the European Council played a major role to give the process of preparation of the document, at an early stage, the political legitimacy it required. In early 1995, immediately after the end of Jacques Delors’ presidency of the European Commission, the Directorate-General for Employment, Industrial Relations and Social Affairs of the European Commission

10 Community Charter of Fundamental Social Rights. Preliminary Draft, COM (89) 248 final, 30 May 1989.

14  Olivier De Schutter appointed a Comité des Sages to prepare a report on the future of the protection of fundamental rights in the European Union. The Comité was headed by Maria de Lourdes Pintasilgo, a former Prime Minister of Portugal in 1979–80, the only woman to have held this post, and member of the European Parliament in 1987–89, who had earned a high reputation in the defence of the welfare state and social rights. The rapporteur to the group was Jean-Baptiste de Foucauld, Commissaire au Plan in France until 1995, a long-time collaborator of Jacques Delors and a specialist in questions related to social solidarity and unemployment. The group’s composition reflected the intent behind its appointment: the hope of the Commission was that the Comité des Sages would help to provide a new foundation for the protection of social rights in the EU. The final report, which the Comité des Sages presented in March 1996, concluded that a series of fundamental civil, political and social rights should be proclaimed at EU level, and incorporated into the European Treaties.11 It treated social rights as an integral component of the catalogue of rights to be adopted by the EU, recognising the interdependence and indivisibility of all fundamental rights. Initially, nothing came out of these proposals: indeed, they were studiously ignored in the intergovernmental conference launched on 29 March 1996, which led to the adoption of the Treaty of Amsterdam, signed on 2 October 1997. In February 1999, however, just weeks before the Treaty of Amsterdam entered into force, an Expert Group on Fundamental Rights published a report called ‘Affirming fundamental rights in the European Union – Time to act’. The report had been commissioned by the European Commission’s General Directorate on Employment, Industrial Relations and Social Affairs as a follow-up to the 1996 report of the Comité des Sages. It was the result of the work of a group of academic experts chaired by professor Spiros Simitis, a Greek professor of law teaching at Frankfurt University and a specialist in employment law. The group’s mandate was to review the status of fundamental social rights in the treaties, following the adoption of the Treaty of Amsterdam, and to identify possible lacunae, giving special consideration to the possible inclusion of a Bill of Rights in the next revision of the Treaties. The German presidency of the Union seized the opportunity. After all, it was the German Federal Constitutional Court (Bundesverfassungsgericht) that had been insisting on the need for the EU to adopt a catalogue of rights in order to confirm the case law of the Court of Justice in the area of fundamental rights and thus ensure there would be no retreat from it; and the Greens, who were then in a coalition with the Social Democrats under Chancellor Schröder, had made this one of their priorities in their electoral programme. The Cologne European Council of 3–4 June 1999 provided the opportunity. There, the Heads of State

11 For a Europe of civic and social rights, report by the Comité des sages chaired by Maria de Lourdes Pintasilgo; rapporteur Jean-Baptiste de Foucauld (Brussels, October 1995–February 1996) (Luxembourg, Office for the Official Publications of the European Union, 1996).

CFREU and Fundamental Social Rights  15 and Governments took the view that, ‘at the present stage of development of the European Union, the fundamental rights applicable at Union level should be consolidated in a Charter and thereby made more evident’.12 Annex IV of the Conclusions presented the modalities according to which the Charter should be drafted. It specified that: In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.

The stage was set for the debate that would take place between December 1999 and September 2000, within the body (soon renamed ‘Convention’) tasked with preparing the Charter. B.  Social Rights in the Charter What were these social rights that ‘do not merely establish objectives for action by the Union’, as specified in the mandate of the European Council? Of all the questions the members of the Convention faced during the preparation of the Charter, that was both the most divisive and, from the technical point of view, the most delicate.13 The employers’ organisations, arguing that social rights required positive action from governments, vehemently opposed the inclusion of such rights in the Charter.14 Lord Goldsmith, the Attorney General of the UK government who was representing the British executive in the Convention, was openly sceptical. For the members of the Convention who were in favour of an ambitious approach to social rights, the challenge was to convince the other members that social rights could be more than purely ‘programmatic’ provisions, even where the objectives they were setting were too vague to be expressed as self-standing ‘rights’ that courts could guarantee in the absence of any implementation measure. It was Guy Braibant, a member of the French Conseil d’Etat who represented the French Executive in the Convention, who formulated the compromise solution that made it possible to overcome the reservations expressed by some members of the Convention concerning the inclusion of social rights in the

12 Cologne European Council, 3–4 June 1999, Conclusions of the Presidency, para 44. 13 For general discussions on the work of the Convention, see G de Burca, ‘The Drafting of the European Union Charter of Fundamental Rights’ (2001) 26 European Law Review 126; G de Kerchove and Cl Ladenburger, ‘Le point de vue d’acteurs de la Convention’ in J-Y Carlier and O De Schutter (eds), La Charte des droits fondamentaux (Bruxelles, Bruylant, 2002); Lord Goldsmith, ‘A Charter of Rights, Freedoms and Principles’ 2001 Common Market Law Review 1201. 14 CBI submission to the Convention on the Charter (12 April 2000), CHARTE 4226/00 CONTRIB 101.

16  Olivier De Schutter document. In a first ‘contribution on social rights’ of 2 May 2000, Braibant had requested that the Charter refer to workers’ right to information, in particular in cases of collective dismissals, to the right of collective bargaining, to the right to a weekly holiday and to paid holidays, to the right to strike, to the right to housing, to rights linked to the protection of the environment and to the protection of consumers, and to the right to services of general economic ­interest.15 He referred to a decision of the French Constitutional Council adopted on 19 January 1995, which, on the basis of the right to human dignity, had recognised ‘the possibility for every person to have decent housing’ as an ‘objective of constitutional nature’, finding that ‘it falls to both the legislator and the government to determine, consistent with their respective competences, the modalities of implementation of this objective’. On 19 May, a second contribution of Guy Braibant reaffirmed the nature of economic and social rights as ‘fundamental rights’, ‘even though the concrete implementation of some of these rights often requires the intervention of an intermediary text’.16 Although a right such as the right to housing or the right to a healthy environment could require implementation measures to be given concrete meaning, he noted, it can ‘be opposed to an action that would directly run counter [to such a right]’; it can be relied on by a court ‘when it must combine different fundamental rights between them’; finally, ‘when concrete implementation measures have been adopted, the right can be opposed to acts that would challenge the core content of such measures’. The significance of social rights thus understood is that, though the full implications can only be defined by further implementing acts, they allow the judge to oppose measures that are clearly inconsistent with the general objective that they set; and that, once certain measures of implementation have been taken, they can be relied upon to oppose retrogressive actions challenging such measures. The approach to social rights in terms of ‘normative justiciability’, as proposed by Guy Braibant, convinced another influential member of the Convention, Jürgen Meyer, a member of the German Bundestag: the text they presented jointly in June 2000 was decisive in shifting the balance of forces within the Convention.17 In September 2000, as the Convention was finalising its work, the European Economic and Social Committee adopted an opinion summarising in the following terms the consensus that had been reached:18 ‘the affirmation of

15 CHARTE 4280/00, CONTRIB 153 (2 May 2000). 16 CHARTE 4322/00, CONTRIB 188 (19 May 2000). 17 The text was referred to informally as the ‘Braibant-Meyer compromise’ – a rather strange expression since, as noted by G Braibant in his short personal account of the drafting of the Charter, the position in fact expressed a complete agreement between Mr Meyer and himself, rather than a ‘compromise’ (G Braibant, La Charte des droits fondamentaux de l’Union européenne (Paris, Seuil, 2001) 45). 18 Opinion of the Economic and Social Committee on ‘Towards an EU Charter of Fundamental Rights’, CES 1005/200, SOC/013 (20 September 2000).

CFREU and Fundamental Social Rights  17 fundamental social rights in the EU Charter of Fundamental Rights’, it stated, ‘does not prejudge the identity of the issuer of the act – whether European Union institution or State authority – against which claims for enjoyment of a right or respect of a principle may be lodged’: The inclusion of social rights and principles in the European Union Charter of Fundamental Rights – in accordance with the Cologne mandate – does not in any way invest the European Community or the European Union with responsibilities which it did not already hold. It simply signifies that acts issued by the EU institutions or State acts adopted within the scope of Community law must: –– respect the social rights set out in the Charter; –– not constitute measures which would lessen the degree to which principles have already been put into effect; –– and in particular respect the requirement for non-discrimination, particularly with regard to the implementation of social rights.19

When, during the Convention on the Future of Europe chaired by the former French President V Giscard d’Estaing, various ‘adaptations’ were introduced in the Charter in order to allow for its inclusion in the Treaties, Article 52 of the Charter was completed to include a paragraph 5 to clarify that: The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.

This paragraph correctly confirms the consensus that was arrived at when the Charter was drafted, during the summer of 2000. Therefore, it may be going too far to state that the insertion of Article 52(5) in the Charter ‘represents an attempt to re-open the substance of the Charter as agreed by the previous Convention by consensus’,20 except of course insofar as the ‘consensus’ in question included an agreement to remain vague about the exact implications of certain social rights and, in particular, about the conditions according to which such rights could be invoked before courts. Before examining under what conditions the Charter was constitutionalised, however, and how such constitutionalisation may affect the position of social rights in the European Union’s legal order, we must turn our attention to the immediate consequences of the initial proclamation of the Charter in December 2000.

19 ibid, para 3.1.3. 20 G de Burca, ‘Fundamental Rights and Citizenship’ in B de Witte (ed), Ten Reflections on the Constitutional Treaty for Europe (Florence, European University Institute, Robert Schuman Centre for Advanced Studies and Academy of European Law, 2003) 11–44, at 24.

18  Olivier De Schutter III.  THE IMPACT OF THE CHARTER ON THE PRACTICE OF THE INSTITUTIONS

A.  The European Commission Two immediate consequences followed the proclamation of the Charter in the practice of the European Commission. First, shortly after the Charter of Fundamental Rights was proclaimed, the Commission pledged to systematically verify the compatibility of its legislative proposals with the Charter at an early stage.21 Later, in 2005, it clarified the methodology it would use in order to assess the compatibility with the Charter of Fundamental Rights of its ­legislative ­proposals.22 In 2009, it published a Report containing an appraisal of this methodology and announcing a range of improvements.23 Although the approach of the Commission could be further strengthened,24 it may already serve to reassure the Court of Justice that all precautions have been taken to ensure an adequate assessment of the compatibility of legislative proposals with the requirements of the Charter of Fundamental Rights, so that the Court may content itself with a relatively low level of scrutiny.25 A second consequence of the proclamation of the Charter was to influence the practice of impact assessments accompanying the legislative proposals of the Commission. In the area of social rights, such impact assessments on the basis of the rights of the Charter may be an even more important tool than compatibility reviews. Indeed, if properly implemented, impact assessments should make it possible to assess whether a particular initiative is likely to support the fulfilment or full realisation of the fundamental rights affected or instead create obstacles to such fulfilment. Such an assessment, however, should not necessarily lead to the conclusion that, in the latter situation, the right is violated: not just any measure that may be seen as retrogressive is a violation of EU law. Rather, impact assessments serve to guide decision-makers (in the ordinary legislative 21 SEC(2001) 380/3. 22 Communication from the Commission, Compliance with the Charter of Fundamental Rights in Commission legislative proposals. Methodology for systematic and rigorous monitoring, COM(2005) 172 final of 27.4.2005. 23 See Communication from the Commission, Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the charter of fundamental rights, COM(2009) 205 final of 29.4.2009. 24 See Israel de Jesus Butler, ‘Ensuring Compliance with the Charter of Fundamental Rights in Legislative Drafting: The Practice of the European Commission’ (2012) 37(4) European Law Review 397–418. 25 See, for instance, judgment of the Court (Grand Chamber) of 9 November 2010, Volker und Markus Schecke GbR (C-92/09) and Hartmut Eifert (C-93/09) v Land Hessen, EU:C:2010:662, C-92/09 and C-93/09, esp para 81 (in which the Court concludes that the interference with private life was disproportionate, primarily on the basis that in adopting the challenged regulation, it did not appear that ‘the Council and the Commission took into consideration methods of publishing information on the beneficiaries concerned which would be consistent with the objective of such publication while at the same time causing less interference with those beneficiaries’ right to respect for their private life in general and to protection of their personal data in particular’).

CFREU and Fundamental Social Rights  19 procedure, the Parliament and the Council) as to the full range of impacts the legislative proposal submitted may entail. They are distinct from the strictly legal examination of whether or not a legislative proposal complies with the Charter. They do, however, serve to improve accountability and to ensure that social impacts are systematically taken into account in law- and policy-making. Impact assessments have been standard practice since 2002.26 They have been improved in recent years in order to better take into account the requirements of fundamental rights. The guidelines for the preparation of impact assessments presented in 2005 already paid more attention to the potential effects of different policy options on the guarantees listed in the Charter.27 The inclusion of fundamental rights in impact assessments, however, did not lead to modifications of the basic structure of such assessments, which still rely on a division between economic, social and environmental impacts. Despite requests expressed in this regard by the Parliament,28 the Commission has repeatedly stated that it is unwilling to perform separate human rights impact assessments, distinct from the assessment of economic, social and environmental impacts. This so-called ‘integrated’ approach allows fundamental rights impacts to be factored into a broader set of considerations, making it possible to compensate certain negative impacts (such as a narrowing down of civil liberties or of the provision of certain public services) by positive impacts at other levels (including, eg, on economic growth and social cohesion), in the overall assessment presented to decision-makers. This is a defensible position, but it also is a strong argument for not allowing impact assessments, thus understood, to become a substitute for rigorous compatibility checks based on legal analysis. The Commission notes in this regard, correctly in the view of this author, that Impact Assessment does not, and cannot, operate as the fundamental rights check. It cannot be a substitute for legal control. In the end result, fundamental rights proofing can only be performed via a legal assessment based on a crystallised draft legislative text. However, while not being, in itself, the legal control for fundamental rights compliance, the Commission recognises that the Impact Assessment can do some of the groundwork to prepare for the fundamental rights proofing of legislative ­proposals.29

The role of fundamental rights in impact assessments as practised by the Commission has been gradually enhanced. In 2009 and 2011, successive Staff 26 Communication of 5 June 2002 on Impact Assessment, COM(2002)276. 27 See SEC(2005)791, 15.6.2005. 28 European Parliament resolution of 15 March 2007 on compliance with the Charter of Fundamental Rights in the Commission’s legislative proposals: methodology for systematic and rigorous monitoring (2005/2169(INI)), OP 11 (where the Parliament ‘Calls on the Commission to think over its decision to divide its considerations on fundamental rights into the current three categories in its impact assessment – economic, social and environmental effects – and to create a specific ­category entitled ‘Effects on fundamental rights’, to ensure that all aspects of fundamental rights are ­considered’). 29 Communication from the Commission (n 23) 6.

20  Olivier De Schutter Working Papers of the Commission made the role of fundamental rights in impact assessments increasingly more explicit.30 The guidance provided to the Commission services by these documents applies only to the legislative proposals submitted by the Commission. In contrast, the tools developed as part of the ‘Better Regulation’ agenda apply to all initiatives, whether legislative or regulatory or whether they consist of the introduction of new policies or amendments to existing policies. Fundamental rights are now better integrated in these tools. They are explicitly taken into account in the Better Regulation ‘Toolbox’,31 in which they constitute tool # 28,32 which itself complements the abovementioned operational guidance on taking account of Fundamental Rights in Commission Impact Assessments.33 The methodology described in the Toolbox is supposed to ensure that a series of questions are asked concerning the nature of the rights at stake (whether they are absolute rights or rights subject to limitations), the acceptability of certain restrictions (whether they pursue a legitimate aim by means that are both necessary and proportionate) and the need to reconcile conflicting fundamental rights. Moreover, because not all services of the Commission can be expected to be fully knowledgeable about fundamental rights issues and thus to be equipped to answer these questions in the more complex cases, the guidelines explicitly suggest seeking advice from the Legal Service of the Commission (SJ) or from DG Justice and Consumers (JUST) (or DG Employment, Social Affairs and Inclusion (EMPL) as regards the rights of persons with disabilities). The specific position of the Legal Service of the Commission may be underlined in this regard. When Mr Clemens Ladenburger – then, as now, a member of the Legal Service – was called to answer questions from the United Kingdom’s House of Lords European Union Committee concerning the ‘human rights proofing’ of EU legislation, he went at great lengths to reassure the Lords that the Legal Service of the Commission, the main administration in charge of such ‘proofing’, does possess a certain degree of independence: [W]hile it is, of course, an internal service placed under the authority of the President, [the Legal Service] does perform a special role within the Commission. It is not a political service, it is an independent service and it is its task, though in purely internal dealings and, of course, not through its advice given in public to function as an independent reviser of fundamental rights questions.34 30 See, respectively, SEC(2009) 92 of 15.1.2009 and SEC(2011) 567 final of 6.5.2011. The latter document is a Commission Staff Working Paper providing Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments. 31 See https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how/better-regulation-guidelines-and-toolbox_en. 32 See https://ec.europa.eu/info/sites/info/files/file_import/better-regulation-toolbox-28_en_0.pdf. 33 See the 2011 Commission Staff Working Paper providing Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments (n 29). 34 Human Rights Proofing EU Legislation, Report with Evidence (HL Paper 67), House of Lords, European Union Committee, 16th Report of Session 2005–2006 (House of Lords, The Stationary Office Ltd., 2005) 16.

CFREU and Fundamental Social Rights  21 Thus, while the College of Commissioners still takes final political responsibility for the text of legislative proposals, the Commission’s Legal Service is requested to furnish a legal assessment untainted by considerations of political expediency, providing an important safeguard against the risk that fundamental rights will be ignored or their requirements downplayed where competing considerations are seen to have a greater weight. The same could be said of the Legal Services of the Council, the institution to which we now turn. B.  The Council of the EU The Council was slower to draw the full implications from the proclamation of the Charter in December 2000. Only after the Charter formally acquired constitutional rank did the Council adopt guidelines on methodological steps to be taken to check fundamental rights compatibility at the Council’s preparatory bodies: the original guidelines were approved by the Committee of Permanent Representatives in May 201135 following a request of the Justice and Home Affairs Council that ‘short but pragmatic and methodological guidelines’ be prepared to guide the Council bodies in the negotiation of legislative proposals.36 The guidelines were updated in 2014 under the responsibility of the Council’s Working Party on Fundamental Rights, Citizens Rights and Free Movement of Persons.37 The new version of the guidelines appropriately warn that, in order to take into account the case law of the Court of Justice, the Council and its preparatory bodies (working groups) ‘shall carefully consider any possible interference with fundamental rights and freedoms and shall be able to demonstrate that they have explored alternative ways to attain the pursued objective which would be less restrictive of the right or freedom in question'.38 They include a ‘fundamental rights check-list’ almost indistinguishable from the checklist relied on by the Commission. It is also perhaps noteworthy that, recognising that it may be difficult in some cases to assess whether a particular amendment to a legislative proposal is compatible with the requirements of the Charter, the guidelines recall the need to use the expertise of the Fundamental Rights Agency, which is a­ uthorised under its Founding Regulation to formulate and publish conclusions and opinions on specific thematic topics, inter alia at the request of the Council.39 35 Council of the EU Doc 10140/11. 36 Justice and Home Affairs Council, Conclusions on the role of the Council of the European Union in ensuring the effective implementation of the Charter of Fundamental Rights of the European Union adopted at the meeting of 24–25 February 2011. 37 For the revised guidelines, see Council of the EU doc 16957/14 (16 Dec 2014) (FREMP 228, JAI 1018, COHOM 182, JURINFO 58, JUSTCIV 327), reissued as doc 5377/15. 38 ibid, 4. 39 See Art 4(1)(d) of Council Regulation (EC) No 168/2007 establishing a European Union Agency for Fundamental Rights, OJ L 53 of 22.2.2007, p 1.

22  Olivier De Schutter This is in line with the Conclusions adopted by the European Council at its meeting of 26 and 27 June 2014, where it noted that, among other measures, greater reliance on Eurojust and on the Agency for Fundamental Rights could support ‘the smooth functioning of a true European area of justice with respect for the different legal systems and traditions of the Member States’, by further enhancing ‘mutual trust in one another’s justice systems’.40 It is odd, however, that whereas the suggestion that the Fundamental Rights Agency’s expertise could be relied on more systematically is referred to in the methodology to assess whether a particular proposal or amendment is compatible with the Charter of Fundamental Rights (in part III of the methodology), the Agency is not referred to where steps are suggested ‘in case of doubt’ (in part IV): there, reference is made only to the Legal Service of the Council, to the experts at national level or to the FREMP Working Party of the Council or other preparatory bodies of the Council specialising in certain fundamental rights. IV.  THE CONSTITUTIONALISATION OF THE CHARTER

A.  The Hesitations of the Court of Justice Despite the strong legitimacy of the Charter of Fundamental Rights and its subsequent constitutionalisation by the Treaty of Lisbon, the Court of Justice has been hesitant to give full effect to the provisions included in the ‘Solidarity’ title of the Charter. Its uneasiness was illustrated early on by its attempt to craft an intermediate category to overcome an excessively rigid distinction between social ‘rights’ and ‘principles’. A first indicator of this approach was provided in the case of Dominguez, on which the Court delivered a judgment on 24 January 2012. The Court was asked by the French Court of Cassation whether A ­ rticle 7(1) of the Working Time Directive (Directive 2003/88, codifying what was initially Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time)41 precluded national provisions or practices, such as those of the French Labour Code, which make entitlement to paid annual leave conditional on a minimum period of 10 days’ or one month’s actual work during the reference period. The Court of Justice answered in the affirmative, noting that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by [the Working Time Directive].42 40 EUCO 79/14, para 11 of the Conclusions. 41 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p 9), codifying Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p 18). 42 Judgment of 24 January 2012, Dominguez, C-282/10 (EU:C:2011:559), para 16. Emphasis added.

CFREU and Fundamental Social Rights  23 It is striking that, although the Charter of Fundamental Rights contains an explicit provision on paid leave (Article 31(2) of the Charter provides that ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’), which A ­ dvocate General Verica Trstenjak discussed at some length in her opinion (though excluding that this right could apply directly in inter-individual relationships),43 the Court prefers simply to reiterate the formula which appeared in 2001 in the case of BECTU44 – referring to the right to paid leave as a ‘particularly important principle of European Union social law’45 rather than as a fundamental right – without even citing the Charter. The facts of the case, of course, which took place in 2003–05, predated the entry into force of the Treaty of Lisbon, but this should not have been a decisive argument against using the Charter as an aid in the interpretation of the requirements of the Working Time Directive: as AG Trstenjak noted, and as has been the practice of the Court of Justice since 2007,46 the Charter could have been used at least as an aid to interpretation, especially as it reinforces those rights that are enshrined in many legal instruments and derive from constitutional traditions common to the Member States, so that they can ultimately be considered an expression of the European scale of values.47

This, the Court of Justice was obviously reluctant to do. The case of European Commission v Guido Strack provides another ­illustration. This case concerned a former official of the Commission who complained that he had been unable to carry over to 2005 38.5 days of leave not taken in 2004 when he was on sick leave. The Court took the view that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law, affirmed by Article 31(2) of the Charter, which the first subparagraph of Article 6(1) TEU recognises as having the same legal value as the Treaties.

It found that the General Court had erred by failing to interpret the Staff ­Regulations so as to ensure they would be consistent with ‘the right to paid 43 See paras 71–83 of the opinion delivered on 8 September 2011. 44 See Case C‑173/99 BECTU [2001] ECR I‑4881, para 43. 45 Dominguez, C-282/10, cited above, para 16. 46 The Court of Justice referred to the Charter of Fundamental Rights for the first time in a judgment of 27 June 2006, concerning an action for annulment filed by the European Parliament against the 2003 Directive on the right to family reunification (Directive 2003/86/EC): see Case C-540/03 Parliament v Council [2006] I-5769, para 38. However, the reference to the Charter in that case still has a rather ambiguous status, since the Charter was referred to by the Preamble of the instrument (the Family Reunification Directive), against which the application was filed. It is only in 2007 that the Court referred to the Charter of Fundamental Rights in other situations, ie, even in the absence of any explicit reference to the Charter in secondary legislation: see Case C-432/03 Ubinet [2007] ECR I-2271 [37]; Case C-438/05, International Transport Workers’ Federation and Finnish Seamen’s Union [2007] ECR I-10779 [43]–[44]; Case C-341/05, Laval un Partneri [2007] ECR  I-11767, paras 90–91; Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v Council [2008] ECR I-6351, para 335. 47 Para 73 of the Opinion.

24  Olivier De Schutter annual leave as a principle of the social law of the European Union now affirmed by Article 31(2) of the Charter’.48 The precise implications of the right to paid annual leave, of course, cannot be identified on the basis of Article 31(2) of the Charter alone. The Court therefore notes that, in accordance with the Explanations to the Charter, this provision should be read in accordance with the Working Time Directive which in part inspired the formulation of that right in the Charter,49 and that the ‘principle of European Union social law’ embodied in that provision of the Charter may therefore serve to interpret the Staff Regulations at issue. The reluctance of the Court to discuss the implications of the right to an annual paid leave as a fundamental right is perhaps even more striking here because, in contrast to Dominguez, the Charter of Fundamental Rights is referred to explicitly. B.  Social Rights and ‘Principles’: The ‘Solidarity Rights’ Title These hesitations are understandable: they reflect the conflicting messages that were sent when the Charter of Fundamental Rights was initially drafted and subsequently ‘adapted’ in order to be integrated as part of the European treaties. It has already been mentioned that, as part of the compromise allowing the integration of the Charter of Fundamental Rights in the EU Treaty – a compromise struck at the constitutional convention of 2002–03 and confirmed in the intergovernmental conference that led to the adoption of the Treaty of Lisbon – Article 52 of the Charter was amended in order to explicitly describe the specific form of justiciability attached to the ‘principles’ contained in the Charter. The compromise, it was recalled, merely made explicit what had hitherto remained implicit, confirming the approach proposed by Guy Braibant during the drafting of the Charter. For the future life of social rights included in the Charter, a more serious challenge has its source in the Protocol (No 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom, appended to the Treaty of Lisbon.50 This so-called ‘opt-out’ protocol (branded as such when it was sold to public opinion both in the United Kingdom and in Poland), is of course not an ‘opt-out’ in any meaningful sense of the expression: no EU Member State can be considered to be exempt from

48 Case C‑579/12 RX-II, European Commission v Strack, judgment of 19 September 2013 (EU:C:2013:570), paras 26 and 46. 49 See Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p 9). Although the explanations to the Charter mention that Art 31(2) of the Charter is based on Directive 93/104/ EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p 18), Directive 2003/88/EC in effect codifies Directive 93/104/EC: the Court notes that ‘­Article  7 of Directive 2003/88 concerning the right to paid annual leave reproduces the terms of Article 7 of Directive 93/104 exactly’ (para 28). 50 OJ 2010 C 83, p 313.

CFREU and Fundamental Social Rights  25 applying the Charter.51 Indeed, Article 1(1) of the protocol, its key operative provision, states: The Charter does not extend the ability of the Court of Justice, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

Contrary to what an ‘opt-out’ protocol would entail, the said protocol in fact does not exempt British or Polish courts from applying fundamental rights, as recognised in the EU legal order – including the rights, freedoms and principles listed in the Charter – to the cases presented before them that fall under the scope of application of EU law. The protocol simply restates that the Charter extends neither the scope of application of Union law (and therefore that of the Charter), nor (therefore) the jurisdiction of the Court of Justice or the competence of domestic courts to apply the Charter, beyond the existing scope of application of Union law. In other terms, the Charter is without effect on the reach of Union law: it shall apply only to the extent that Union law already applies to any particular situation. However, far from establishing a derogation in favour of Poland and the United Kingdom, this is already what the Charter itself says: the protocol is, in that measure at least, redundant and crafted for domestic political purposes only.52 Article 1(2) of Protocol No 30 is more troubling, however. It states that ‘for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable

51 For a good overview, see Steve Peers, ‘The “Opt-out” that Fell to Earth: The British and Polish Protocol Concerning the EU Charter of Fundamental Rights’ (2012) 12(2) Human Rights Law Review 375–89. 52 Indeed, the Preamble of the Protocol refers to ‘the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter’ (emphasis added), thus clearly recognising that the Protocol does not bring about any change to the situations of Poland or the United ­Kingdom. When requested to explain their position before the House of Lords’ EU Select Committee, the British government confirmed the view that the Protocol should be seen ‘as an interpretation guide rather than an opt-out’, stating that: ‘The UK Protocol does not constitute an “opt-out”. It puts beyond doubt the legal position that nothing in the Charter creates any new rights, or extends the ability of any court to strike down UK law’ (Conclusions of House of Lords EU Select Committee, The Treaty of Lisbon: An Impact Assessment, 10th Report, 2007–8, HL Paper 62, para 5.86). This point was further emphasised by Mr Jack Straw, Secretary of State for Justice under the Blair government at the time the Lisbon Treaty was negotiated (ibid, para 5.96), and by Lord Goldsmith (Speech by the Rt Hon Lord Goldsmith QC to the British Institute for International and Comparative Law, 15 January 2008: ‘The Charter of Fundamental Rights’, quoted ibid, para 5.98). These statements confirm the view that the Protocol simply confirms the scope of application of the Charter as agreed by all Member States; any suggestion that Poland of the UK would be placed in a specific position vis-à-vis the Charter as a result of the Protocol is based on a mistaken reading of the instrument – both in its letter and in its intention. This debate is, is any case, largely moot since the Court of Justice delivered its judgment in the Joined Cases C‑411/10 and C‑493/10, in which the Court confirmed beyond any doubt that ‘Protocol (No 30) does not call into question the applicability of the Charter in the United Kingdom or in Poland’ (Judgment of 21 December 2011, NS and ME and Others, C-411/10 and C-493/10 (EU:C:2011:865), para 119).

26  Olivier De Schutter rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law’. This clause was inserted at the request of the United Kingdom; Poland was less interested in inserting this formulation.53 It is however a deeply problematic provision because it suggests, wrongly, that there is a perfect overlap between the ‘principles’ and the social rights listed in Title IV (‘Solidarity’) of the Charter, creating the impression that none of the provisions of this title include justiciable rights. The clause presents itself as a mere restatement of what the Charter requires. But this is an entirely implausible reading of the Charter: the Explanations to the Charter note, for instance, that some provisions of the Charter ‘may contain both elements of a right and of a principle, eg Articles 23, 33 and 34’, although Articles 33 and 34, which refer to ‘Family and professional life’ and to ‘Social security and social assistance’ respectively, are both located in Title IV of the Charter of Fundamental Rights. However, if the mere fact that a certain provision is listed under title IV (‘Solidarity’) of the Charter of Fundamental Rights does not, in itself, suffice to dismiss it as a mere ‘principle’, and thus to limit the conditions in which it may be invoked, then what criterion should be chosen? Advocate General Trstenjak proposes an approach based on the wording that appears in the Charter: where the Charter refers to a ‘right’, rather than to a mere objective to be pursued, it should be treated as such, rather than as a mere ‘principle’. Thus, for instance, the Charter clearly refers in Article 31(2) to a right to a paid annual leave: 76  In fact, the very wording of this provision immediately suggests the conclusion that entitlement to paid annual leave was designed to be a ‘fundamental right’, whereupon inclusion in the ‘principles’ referred to in Article 51(1) of the Charter, which do not create any direct subjective rights and indeed need to be given expression by the entities to which it is addressed, can instantly be ruled out. Article 31(2) of the Charter declares that: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave’. The human rights concept of a guarantee is clearly expressed here, especially as prominence is given in this article to human dignity in working life. It therefore clearly differs from other provisions in Title IV of the Charter (‘Solidarity’), which are worded more like a guarantee of objective law in that the rights granted there are ‘recognised’ or ‘respected’. These differences in wording are evidence of a graduated intensity of protection according to the legal right concerned.

53 Compare with Declaration (No 62) by Poland concerning the Protocol, in which the Polish government ‘declares that, having regard to the tradition of social movement of “Solidarity” and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter …’ This provides an indication as to the intention of the Polish government, which was primarily concerned about the potential impacts on family law issues of a broad reading of the Charter, that might influence areas which, hitherto, remain the sole competence of the EU Member States.

CFREU and Fundamental Social Rights  27 77  In line with this graduated system of protection, those provisions that merely contain ‘principles’ and under the first sentence of Article 52(5) of the Charter are primarily binding on the legislature in the course of implementation also often state that protection is granted only ‘in accordance with EU law or national law and ­practice’. One significant feature of principles is that their application often requires implementing measures to be adopted, which can also only happen in accordance with the division of competence stipulated in the Treaties and in harmony with the principle of subsidiarity. The fact that, in order to take effect, principles require legislative, organisational and practical measures on the part of the European Union and its Member States is also given expression by the phrase ‘promote the application thereof’ in the second sentence of Article 51(1) of the Charter, which also applies to them. 78  However, this is not the case with Article 31(2) of the Charter, which is conceived in this respect as an individual requirement. The fact that Article 31(1) of the Charter, in which reference is made to ‘the right to working conditions which respect his or her health, safety and dignity’, is couched in fairly abstract terms and is not expressed in a more concrete manner until subparagraph 2 cannot be invoked as an argument for classifying this entire provision as a ‘principle’ within the meaning of Article 51(1) of the Charter, particularly as rules on fundamental rights can basically be worded in a legally abstract fashion, particularly in order to take account of political and social changes. This certainly applies to social rights, which are often designed to be fleshed out, not least of all because of the associated costs that can ultimately make realisation of such rights contingent upon the de facto economic possibilities of the State.54

This view is not shared unanimously, however. In the case of IPSO v ECB, the General Court took the view that Article 27 of the Charter could not be directly invoked by employees of the ECB. Although that provision of the Charter refers in its heading to ‘Workers’ right to information and consultation within the undertaking’, its content (‘Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices’ (emphasis added)) would exclude the possibility of its invocation in the absence of further implementing measures: 85  … according to the actual wording of Article 27 of the Charter of Fundamental Rights, the exercise of the rights laid down in that article is confined to the cases and conditions provided for by European Union law and national laws and practices (judgment of 15 January 2014, Association de médiation sociale, C 176/12, EU:C:2014:2, para 45, and order of 11 November 2014, Bergallou v Parliament and Council, T 22/14, not published, EU:T:2014:954, para 33). 86  It follows that Article 27 of the Charter of Fundamental Rights, which does not lay down any directly applicable rule of law, is not in itself sufficient to confer on 54 See paras 76–78 of the opinion delivered on 8 September 2011 in the case of Dominguez, cited above. See also AG Trstenjak’s opinion of 24 January 2008 in the Joined Cases of Schultz-Hoff and Others (C‑350/06 and C‑520/06 [2009] ECR I‑179), para 38.

28  Olivier De Schutter i­ndividuals an individual right to consultation and information which they may invoke as such (see, to that effect, judgment of 15 January 2014, Association de médiation sociale, C 176/12, EU:C:2014:2, para 47).55

The stakes of this discussion should not be underestimated. Its importance shall appear immediately once we relate the debate concerning the distinction between ‘rights’ and ‘principles’ to the question of positive duties implied by the Charter of Fundamental Rights. C.  Social Rights and Positive Duties In general human rights law, human rights impose not only duties of abstention (negative duties not to adopt measures that could infringe human rights, unless certain conditions are complied with), but also duties of action (positive duties to take measures that protect and fulfil human rights). In other words, a commitment to human rights goes beyond accepting a prohibition: it also involves a duty to contribute to the realisation of human rights by exercising certain powers so as to maximise the enjoyment of human rights by the rightsholders. Contrary to a widely held view, this dual function of human rights is fully compatible with the principle of conferral, according to which the EU institutions are attributed certain limited powers by the EU Member States, the ‘masters’ of the treaties (Article 5(1) and (2) TEU); and it is fully compatible with the principle of subsidiarity, according to which, in areas of shared competences, the EU should take action only if and insofar as the action envisaged ‘cannot be sufficiently achieved by the Member States, either at central or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level’ (Article 5(3) TEU). The Charter of Fundamental Rights is not merely a set of prohibitions. It should also serve as a tool to guide action, ensuring that the institutions of the Union exercise their competences with a view to fulfilling the provisions of the Charter. Article 51(1) of the Charter states that the institutions of the Union shall ‘respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties’ (emphasis added). Of course, paragraph 2 of Article 51 adds that ‘The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties’. That does not imply, however, that no positive obligations (duties to take action) can follow from the Charter. The Explanations a­ ccompanying

55 General Court, International and European Public Services Organisation in the Federal Republic of Germany (IPSO) v European Central Bank (ECB), T‑713/14, judgment of 13 December 2016 (EU:T:2016:727), paras 85–86.

CFREU and Fundamental Social Rights  29 the Charter clarify that ‘an obligation, pursuant to the second sentence of ­paragraph 1, for the Union’s institutions to promote principles laid down in the Charter may arise only within the limits of these same powers’. But that is not to say that no such obligation exists; it is simply to recall that any such obligation as might arise would be limited to the exercise of the powers that the institutions have been attributed. Despite some nudges from its advocate generals,56 however, the Court of Justice has hitherto refrained from imposing positive obligations on the EU institutions on the basis of the Charter of Fundamental Rights. When, invoking in particular the Convention on the Rights of Child, the European Parliament sought to have the 2003 Family Reunification Directive57 annulled, the Court rejected the action of the Parliament, essentially on the ground that the legislator cannot be considered to act in violation of fundamental rights simply because it leaves a broad margin of appreciation to the EU Member States in the implementation of European legislation; though it acknowledged that ‘a provision of a Community act could, in itself, not respect fundamental rights if it required, or expressly or impliedly authorised, the Member States to adopt or retain national legislation not respecting those rights’,58 the Court stated that ‘while the Directive leaves the Member States a margin of appreciation, it is sufficiently wide to enable them to apply the Directive’s rules in a manner consistent with the requirements flowing from the protection of fundamental rights’.59 In other words, it is not required that the EU legislation itself protect fundamental rights; it is sufficient that it does not impose on the EU Member States that they adopt measures, or refrain from adopting certain measures, in violation of such requirements.60

56 See in particular Adovate General P Cruz Villalón in the case of Association de médiation sociale: ‘The European Union and the Member States are under an obligation to “promote” the “principles” set out in the Charter (Article 51(1)), and for that purpose are to adopt those “implementing” measures which are necessary to ensure that such promotion is effective. In spite of the use of the word “may”, it is clear that this is not an absolute discretionary power, but a possibility subject, as has just been noted, to a clear obligation in Article 51(1) of the Charter, requiring the European Union and the Member States to “promote” the “principles”. It is clear that such promotion will be possible only through the “implementing” acts to which Article 52 subsequently refers.’ (conclusion of 18 July 2013, in Case C-176/12, Association de médiation sociale v Union locale des syndicats CGT, et al, para 60). 57 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p 12). 58 Judgment of 27 June 2006, European Parliament v Council of the European Union, C‑540/03, EU:C:2006:429, para 23. 59 ibid, para 104. 60 The Opinion of Advocate-General Kokott delivered on 8 September 2005 went further. Rejecting the view of the Council that the action for annulment of the European Parliament should be considered inadmissible because, in essence, it sought the challenge the compatibility with fundamental rights of the measures adopted by the national authorities implementing the Family Reunification Directive rather than the Directive itself, she stated that by putting forward this argument: ‘the Council has failed to recognise that endorsement by Community law of specific options for maintaining in force or introducing provisions of national law constitutes a measure which may itself, in certain

30  Olivier De Schutter More recently, in Glatzel, the Court of Justice was asked by a German administrative court (the Administrative Court of Appeals [Verwaltungsgerichtshof] of the state of Bayern) whether Mr Glatzel could be refused a driving licence for adapted vans and trucks (vehicles in categories C1 and C1E, as defined by Directive 2006/126),61 on the ground that the visual acuity in his worse eye did not reach the minimum level required by that directive.62 Mr Glatzel complained that the refusal to grant him a driver’s licence violated Articles 20, 21(1) and 26 of the Charter of Fundamental Rights. Articles 20 and 21(1) relate to the requirements of equal treatment before the law and of non-discrimination, inter alia, on grounds of disability. Article 26 of the Charter, titled ‘Integration of persons with disabilities’, is the last article of title III of the Charter (‘­Equality’). It provides that: ‘The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community’. Might this provision impose on the European legislator certain duties to draft legislation taking into account the need to ensure the integration of persons with disabilities? The Court believes not. In its judgment of 22 May 2014, it first recalls that as is clear from Article 52(5) and (7) of the Charter and the Explanations relating to the Charter of Fundamental Rights concerning Articles 26 and 52(5) of the Charter, … reliance on Article 26 thereof before the court is allowed for the interpretation and review of the legality of legislative acts of the European Union which implement the principle laid down in that article, namely the integration of persons with ­disabilities.63

In other words, it treats Article 26 of the Charter as expressing a ‘principle’, rather than a ‘right’, so that its invocability is limited to situations in which

circumstances, infringe Community law. First, the options potentially restrict the scope of the entitlement to family reunification conferred by the Directive. Secondly, they formally establish that the provisions in question are compatible with Community law. If provisions establishing such a fact are not challenged in time by means of an action for annulment, the Community will be precluded from taking action itself against national measures which simply take full advantage of the various options contemplated’ (ibid, para 45). This is unconvincing. Even a measure adopted by national authorities that complies fully with the terms of the Directive could be in violation of EU law if it were adopted in violation of fundamental rights, as general principles of EU law that are binding on the member States whenever they act in the field of application of EU law. The fact that the Family Reunification Directive would not have explicitly prohibited the adoption of such national measures by no means would have precluded the filing of infringement proceedings against the Member State concerned. 61 Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (OJ 2006 L 403, p 18 and corrigendum OJ 2009 L 19, p 67), as amended by Commission Directive 2009/113/EC of 25 August 2009 (OJ 2009 L 223). 62 More precisely, the visual acuity of Mr Glatzel did not meet the requirements stipulated in point 6.4 of Annex III to Directive 2006/126/EC. 63 Judgment of 22 May 2014, Wolfgang Glatzel v Freistaat Bayern, C-356/12 (EU:C:2014:350), para 74.

CFREU and Fundamental Social Rights  31 it is combined with another instrument implementing (or violating) the said principle. It then continues: 75  As regards the implementation of that principle by Directive 2006/126, it is clear in particular from the wording of recital 14 in the preamble thereto that ‘[s]pecific provisions should be adopted to make it easier for physically disabled persons to drive vehicles’. Likewise, Article 5(2) of that directive refers to the conditions for the issue of driving licences to drivers with disabilities, in particular as regards the authorisation to drive adapted vehicles. 76  Thus, in so far as Directive 2006/126 is a legislative act of the European Union implementing the principle contained in Article 26 of the Charter, the latter provision is intended to be applied to the case in the main proceedings. 77  Furthermore, by virtue of the second sentence of Article 51(1) of the Charter, the EU legislature is to observe and promote the application of the principles laid down in it. As regards the principle of the integration of persons with disabilities, Article 26 of the Charter states that the Union is to recognise and respect the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. 78  Therefore, although Article 26 of the Charter requires the European Union to respect and recognise the right of persons with disabilities to benefit from integration measures, the principle enshrined by that article does not require the EU legislature to adopt any specific measure. In order for that article to be fully effective, it must be given more specific expression in European Union or national law. Accordingly, that article cannot by itself confer on individuals a subjective right which they may invoke as such (see, to that effect, as regards Article 27 of the Charter, Case C 176/12 Association de mediation sociale EU:C:2014:2, paragraphs 45 and 47). 79  Having regard to all of the foregoing considerations, it must be held that the consideration of the question has not revealed any information capable of affecting the validity of Annex III, paragraph 6.4 of Directive 2006/126 [defining the conditions according to which a driver’s license may be granted, taking into account the visual acuity of the claimant] in the light of Article 26 of the Charter.

In other words, because the integration of persons with disabilities stipulated in Article 26 of the Charter is a mere ‘principle’, it does not require any specific measure to be adopted by the legislator of the Union; and this in turn would justify a particularly lenient assessment of whatever measure is adopted, recognising the broad margin of appreciation of the legislature in this regard. The Court thus not only considers that ‘principles’ cannot be invoked in the absence of implementation measures, but also that such implementation measures can hardly be assessed against the requirements of such principles because the latter are not self-executing. This comes dangerously close to denying any effective role for principles, beyond their political importance as guides to legislative action.64 64 See also the critiques expressed by A Bailleux and I Hachez towards Glatzel: A Bailleux and I Hachez, ‘Another look at Glatzel’ in E Brems and E Desmet (eds), Integrated Human Rights in Practice. Rewriting Human Rights (Cheltenham, Edward Elgar Publishing, 2017) 351–77; and

32  Olivier De Schutter This is especially unfortunate because as regards the provisions of the Charter that have been recognised as having the status of ‘rights’, the Court has recently come to accept that certain positive obligations could be imposed on the EU legislator, for instance in the preparation of directives (which should be sufficiently detailed to ensure that fundamental rights shall not be violated by the Member States in the adoption of implementation measures).65 The same logic has led the Court to find that the requirement to ‘promote the application’ of the Charter66 may imply a duty on the Commission to proactively take into account fundamental rights in the design of memoranda of understanding with States being provided with financial assistance.67 If, however, the logic of Glatzel remains unchallenged, this promising jurisprudence might not extend to the ‘principles’ embodied in the Charter, which therefore might be degraded to purely programmatic objectives, of purely political (rather than legal) significance. D.  Setting the Legislative and Policy Agenda of the Union Are the ‘principles’ stipulated in the Charter, at least, effective guides to lawand policy-making? If they cannot be invoked before the courts under the same conditions as ‘rights’ might, can they at least serve to influence the legislative and political agenda of the EU institutions, and the Commission’s exercise of its power to initiate legislation in particular? There are situations in which the effective protection of fundamental rights in the legal order of the Union, and of social rights in particular, may require that certain legislative or policy initiatives be proposed at EU level. This may be the case, for instance, in order to avoid a situation in which economic freedoms, such as the free movement of goods, freedom of establishment or the freedom to provide services across borders, would

A Bailleux, ‘Droits de l’homme à l’est de Vosges, valeurs à l’ouest? Les récits judiciaires de l’Europe au prisme de l’article 52 de la Charte’ (2018) 115 Revue trimestrielle des droits de l’homme 583–92, esp 591–92. 65 See Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others, Joined Cases C‑293/12 and C‑594/12, judgment of 8 April 2014, EU:C:2014:238, para 65 (where the Court concludes that ‘Directive 2006/24 [providing for the retention of data in electronic communications] does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in ­Articles 7 and 8 of the Charter. It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary’). 66 Art 51(1) of the Charter of Fundamental Rights. 67 Ledra Advertising Ltd, et al, Joined Cases C‑8/15 P to C‑10/15 P, judgment of 21 September 2016, EU:C:2016:701, paras 59 and 67.

CFREU and Fundamental Social Rights  33 lead national lawmakers, in the absence of harmonisation measures at Union level, to reduce the level of protection of certain rights, such as the right to health or the right to education.68 The system of protection of fundamental rights in the Union, however, still lacks a mechanism that would allow systematic screening of developments in the Union in order to identify a need to take action at EU level in order to protect and fulfil the rights, freedoms and principles of the Charter, where an initiative of the Union institutions may be required to avoid the Charter’s values being threatened by the decentralised and uncoordinated action of EU Member States. Such a mechanism, it may be recalled, was proposed by the European Commission when it adopted its 2003 Communication on the values on which the Union is founded,69 values that are now listed in Article 2 TEU: democracy, the rule of law and fundamental rights.70 The Commission referred in that Communication to the work of the EU Network of Independent Experts on Fundamental Rights, a group of experts established in September 2002 at the request of the European Parliament’s LIBE Committee in order to support its task of monitoring fundamental rights in the EU.71 Using the Charter of Fundamental Rights as its benchmark, the network proceeded through comparisons across the EU Member States, systematically comparing how the Member States addressed certain challenges facing the implementation of fundamental rights. The Commission took the view that, apart from supporting the institutions’ roles under Article 7 EU (which sets up a political mechanism that may be triggered where a Member State adopts measures that may be inconsistent with the

68 See for an elaboration on this theme, Olivier De Schutter, ‘Fundamental Rights and the Transformation of Governance in the European Union’ (2007) Cambridge Yearbook on European Legal Studies 133–75; or Olivier De Schutter, ‘The Implementation of Fundamental Rights through the Open Method of Coordination’ in O De Schutter and S Deakin (eds), Social Rights and Market Forces. Is the Open Coordination of Employment and Social Policies the Future of Social Europe? (Bruxelles, Bruylant, 2005) 279–343. 69 Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based, COM(2003) 606 final of 15.10.2003. 70 More precisely, Art 2 of the Treaty on the European Union lists the values on which the Union is founded as ‘respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. 71 Resolution of 5 July 2001 on the situation of fundamental rights in the European Union (2000) (rapp Thierry Cornillet) (2000/2231(INI)) (OJ C 65 E, 14.3.2002, pp 177–350) para 9. The EU Network of Independent Experts on Fundamental Rights worked for a period of four years, delivering its final opinions and reports in September 2006. It presented reports on an annual basis on the situation of fundamental rights in the EU and in the EU Member States; it adopted in-depth studies on certain emerging issues related to the protection of fundamental rights in the EU, in the form of so-called ‘Thematic Comments’, focusing for instance on the rights of minorities in the EU or on the balance to be achieved between security and civil liberties in the fight against terrorism; and it adopted ‘opinions’, at the request of the European Parliament’s LIBE Committee or of the European Commission.

34  Olivier De Schutter values on which the Union is founded), the monitoring-by-comparison function assumed by the network has an essential preventive role in that it can provide ideas for achieving the area of freedom, security and justice or alerting the institutions to divergent trends in standards of protection between Member States which could imperil the mutual trust on which Union policies are founded.72

The comparative analyses of the network, in other words, were seen as favouring the emergence of a proactive fundamental rights policy, one that would allow the Union institutions to be alerted to the need to take initiatives in areas in which divergences appeared between the Member States that could tend to undermine the integration project, resulting in new barriers within the internal market, creating obstacles to cooperation between national authorities in the area of freedom, security and justice, or to undermine the ability of the EU Member States to improve the protection of fundamental rights within their jurisdiction. Such monitoring might be particularly important in the area of fundamental social rights because regulatory competition between the EU Member States (and the fear they may have to impose excessive burdens on the companies operating under their jurisdiction) is a major disincentive to increasing the level of protection of workers’ rights as well as to improve social protection or to raise taxes on corporate profits. When it was put forward in late 2003, however, the proposal of the European Commission to establish such a monitoring mechanism as a permanent part of the institutional landscape of the European Union was ill-timed. Because it was presented a few months before the enlargement of the EU to 10 new Member States, including eight states of Central and Eastern Europe that had been democratised only recently, the signal the establishment of such a mechanism would have sent might have been misinterpreted. While deploring, in other respects, the timidity of the reading proposed by the European Commission of Article 7 TEU, the Parliament insisted in a resolution of 20 April 2004 that the use of Article 7 TEU should be based on four principles, including the principle of confidence, which it explained thus: The Union looks to its Member States to take active steps to safeguard the Union’s shared values and states, on this basis, that as a matter of principle it has confidence in: –– the democratic and constitutional order of all Member States and in the ability and determination of their institutions to avert risks to fundamental freedoms and common principles, –– the authority of the European Court of Justice and of the European Court of Human Rights. Union intervention pursuant to Article 7 of the EU Treaty must therefore be confined to instances of clear risks and persistent breaches and may not be invoked in support

72 Communication

from the Commission (n 69) para 2.1, p 10.

CFREU and Fundamental Social Rights  35 of any right to, or policy of, permanent monitoring of the Member States by the Union. Nevertheless, the Member States, accession countries and candidate countries must continue to develop democracy, the rule of law and respect for fundamental rights further and, where necessary, implement or continue to implement corresponding reforms.73

In effect, the insistence of the European Parliament on the ‘principle of confidence’ excluded the establishment of a mechanism for the permanent monitoring of fundamental rights within the EU Member States, which by its very nature might instead be interpreted as a sign of distrust. Only at the very end of the 2004–09 legislature did the Parliament revert to its practice of adopting r­ egular reports on the situation of fundamental rights in the Union,74 requesting in a resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004–08 that the EU institutions ‘establish a monitoring mechanism and a set of objective criteria for the implementation of Article 7 of the EU Treaty’.75 In effect, the European Parliament was reviving the very monitoring mechanism it had seen as undesirable on the eve on the ‘big bang’ of enlargement. In order for the social provisions of the Charter of Fundamental Rights to effectively guide the EU’s legislative and policy agenda, it appears indeed essential that the progress achieved by the EU Member States in the area of fundamental social rights (or the lack of progress) be adequately monitored, to allow the EU institutions (the Commission in particular) to react to widening gaps between the EU Member States, as such gaps may result in distorting competition between the Member States and to a downwards spiral detrimental to social progress. Such a monitoring system would make it possible to identify trends that might justify the introduction of new policy or legislative initiatives to strengthen the protection of fundamental rights in the EU. As such, it should contribute to a fundamental rights policy of the Union that sees such rights not only as an external constraint, restricting how the institutions of the EU may act or which measures the EU Member States may take in the scope of ­application of Union law, but also as a guide for the exercise of the ­competences that have been attributed to the institutions. Indeed, although the Union does not have a general competence to promote and protect fundamental rights and though it is not, in that sense, a ‘human rights organisation’, it has been ­attributed competences in a number of areas, including areas directly linked to

73 European Parliament legislative resolution on the Commission communication on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based (COM(2003) 606 – C5-0594/2003 – 2003/2249(INI)), adopted on 20 April 2004, para 12 (emphasis added). 74 See the report on the situation of fundamental rights in the Union 2004–2008 (rapp G Catania) (doc PE A6-9999/08, of 5.12.2008). 75 Resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004–2008 (2007/2145 (INI)), operational paras 3 and 5.

36  Olivier De Schutter the ­implementation of social rights, that it could use more proactively in order to improve the protection of fundamental rights in the Member States.76 It is on this premise, for instance, that, in the name of promoting the right to health, the adoption of directives relating to the advertising, sponsorship, manufacture, presentation and sale of tobacco products was justified:77 when asked to confirm whether Article 95 EC (now Article 114 TFEU) could constitute an adequate legislative basis for the adoption of such instruments, the European Court of Justice agreed with the argument that a failure to act on the part of the Union could result either in obstacles in the internal market, or in the absence of adequate protection of the right to health through State regulation: [H]aving regard to the fact that the public is increasingly conscious of the dangers to health posed by consuming tobacco products, it is likely that obstacles to the free movement of those products would arise by reason of the adoption by the Member States of new rules reflecting that development and intended more effectively to discourage consumption of those products by means of warnings and information appearing on their packaging or to reduce the harmful effects of tobacco products by introducing new rules governing their composition.78

On the surface, the Tobacco Manufacture and Advertising Directives aimed at product standardisation in the internal market; in reality, their objective was to contribute to the protection of health, an objective that could not be achieved by the Member States acting individually. The need to adopt these directives was made clear by comparing trends across EU Member States, and the growing divergences between States that were more protective of consumers’ health and States that provided a lower level of protection. As noted above, this – the identification of such emerging divergences, which may call for initiatives to approximate legislation or to harmonise – was already described by the Commission as one of the main contributions a permanent fundamental rights 76 For developments on this idea, see Olivier De Schutter, ‘The Implementation of Fundamental Rights’ (n 68); Olivier De Schutter, ‘The New Architecture of Fundamental Rights Policy in the EU’ (2011) European Yearbook of Human Rights 107–43. 77 Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ L 194, 18.7.2001, p 26); Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ L 152, 20.6.2003, p 16). 78 Case C-491/01, The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd, [2002] ECR I-11453, at para 67. This position was confirmed in two judgments of 14 December 2004: Case C-434/02, Arnold André GmbH & Co KG v Landrat des Kreises Herford, [2004] ECR I-11825; Case C-210/03, Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893. Compare with Case C-376/98, Germany v Parliament and Council [2000] ECR I-2247 (where the Court annulled Directive 98/43/ EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 1992 L 213, p 9) since that Directive did not ensure free movement of products which are in conformity with its provisions, and therefore could not be said to contribute to the establishment of the internal market as required for Art 95 EC (then Art 100a of the EC Treaty) to be relied upon as a legal basis).

CFREU and Fundamental Social Rights  37 monitoring mechanism (for which the EU Network of Independent Experts on Fundamental Rights provided a model) might make in the future.79 V. CONCLUSION

The Charter of Fundamental Rights has hitherto been thought of as a shield: a set of guarantees that neither the Union nor the EU Member States, when they act within the scope of application of Union law, may ignore. It is this role of the Charter that has guided the inclusion of fundamental rights in the legislative process and in impact assessments, and it is this role that the Court of Justice has hitherto been most attentive to. In the area of social rights, however, the Charter can and should achieve more. It can become a sword, a tool to dynamise the exercise by the European Commission, and by the EU institutions more generally, of their competences in the social field, so as to ensure that neither the establishment of the internal market nor cross-border competition – and the regulatory competition this may lead to between the Member States – operate at the expense of social progress. The European Pillar of Social Rights (EPSR) may be seen as an opportunity in this regard. The initiative to establish a European Pillar of Social Rights was first announced on 9 September 2015, in the State of the Union address of the President of the European Commission. It was then presented as a means to encourage a move towards a ‘deeper and fairer Economic and Monetary Union’,80 and to complement macroeconomic convergence with greater convergence in three broad areas – equal opportunities and labour market participation, fair working conditions, adequate and sustainable social protection and access to high quality essential services – covering 20 policy domains in all. The EPSR was later endorsed by the European Parliament, the Council and the Commission on 17 November 2017, at the Social Summit for Fair Jobs and Growth held in Gothenburg. The EPSR is now entering the implementation phase. On 13 March 2018, a Communication from the Commission described how implementation of the EPSR would be monitored. This monitoring includes a regular assessment of the employment and social performance of the EU Member States on the basis of a Social Scoreboard, comprising 35 social, educational and employment indicators, broken down by age, gender and education, grouped into three dimensions corresponding to the broad areas covered by the EPSR (equal opportunities and access to the labour market; dynamic labour markets and fair working conditions; and public support, social protection and inclusion). 79 Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based, COM(2003) 606 final of 15.10.2003. 80 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Launching a Consultation on a European Pillar of Social Rights, COM(2016) 127final of 8.3.2016, para 2.1.

38  Olivier De Schutter Two aspects of this new Social Scoreboard are particularly interesting. First, these indicators go beyond measuring outcomes, or symptoms, as do classic socio-economic indicators; indeed, the indicators by which the Scoreboard is intended to assess the ‘impact of public policies on reducing poverty’ focus on the efforts made by States; they are, in the structural-process-outcomes tripartite typology of human rights indicators well known to human rights activists, ‘process’ indicators.81 This is a source of accountability because poor outcomes can more directly be traced to a failure by the State to improve social support or to match macroeconomic choices with its commitment to poverty reduction. Second, and relatedly, the Social Scoreboard is supposed to gradually influence the orientation of the macroeconomic policies in EU Member States: it is aimed at ‘supporting the broader process of upward convergence’.82 The Scoreboard should, in particular, influence the annual Joint Employment Report and the Country Reports presented as part of the European Semester, which seeks to promote macroeconomic convergence in the EU.83 It is the adoption of the European Pillar of Social Rights and its associated Social Scoreboard, perhaps, that will allow the social provisions of the Charter to deploy their full effects on the establishment of Social Europe: political commitment, once again, proves essential if the law’s promises are to be kept.

81 Human rights-based indicators are indeed distinct from macro-economic indicators or development indicators that simply register socio-economic facts. Human rights-based indicators include indicators referring to the commitments made by the State, or to the legal, institutional and policy frameworks that the State establishes (structural indicators); indicators referring to the efforts made by the State to ensure that the commitments are effectively implemented, ie, translated into the adoption of concrete measures and policies (process indicators); and finally, indicators relating to the results achieved (outcome indicators) (see in particular, introducing this framework, the Report by the Office of the United Nations High Commissioner for Human Rights on Indicators for Promoting and Monitoring the Implementation of Human Rights (HRI/MC/2008/3 (6 June 2008)) (explaining in para 8 that the human rights indicators framework proposed in the report ‘opted for using a configuration of structural-process-outcome indicators, reflecting the need to capture a duty-bearer’s commitment, efforts and results, respectively. In other words, by identifying structuralprocess-outcome indicators for each attribute of a human right, it becomes possible to bring to the fore an assessment of steps taken by the States parties in meeting their human rights obligations’). These three categories of indicators are interdependent and mutually supportive: the structural indicators ensure that the beneficiaries of measures adopted by the State shall have access to remedies (both judicial and non-judicial), and that the States’ performances shall be adequately monitored, in particular, by independent bodies (including national human rights institutions); the process indicators ensure that States shall effectively deliver on their promises, in particular by making the required budgetary investments; and the outcome indicators, which present the closest resemblance to development indicators, serve to ensure the policies actually make a difference – that they are having an impact – so that misguided or ineffective policies can be revised and improved. 82 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Monitoring the implementation of the European Pillar of Social Rights, COM(2018) 130 final of 13.3.2018. 83 See Proposal for a Council Decision on guidelines for the employment policies of the Member States, COM(2017) 677 final of 22.11.2017.

3 The Future of the Charter on Fundamental Rights of the European Union ANTOINE JACOBS

I. INTRODUCTION

I

n 2000 the EU produced a Charter of Fundamental Rights (CFREU), which was adopted in December 2000 by the European Council at Nice. At that time it was not made legally binding; this happened only in 2009 in the Lisbon Treaty. In contrast to its full integration in the text of the still-born Constitutional Treaty, the full text of the Charter1 was not incorporated in the European treaties. There is a reference to the Charter only in the Treaty on European Union (Article 6(1) TEU), in which the Union recognises the rights, freedoms and principles set out in the Charter and attaches to the Charter the same legal value as the TEU and the Treaty on the Functioning of the European Union (TFEU). It is now eight years since the Charter acquired binding force by way of the Treaty of Lisbon. What has been done with it as far as the employment ­relation is concerned? This is the question the authors of this volume have tried to answer. In this chapter I shall summarise the most striking points. It has become clear that the Court of Justice of the EU (CJEU) has to date adhered to Article 51, which states that the provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard to the principle of subsidiarity and to the Member States only when they

1 The version of the Charter, as established by the IGC in 2003–04, was agreed by the IGC in 2007 with another small modification and then endorsed by the EU institutions in Strasbourg, 12 ­December 2007 and published in the EU Official Journal, OJ EC C 303/1 of 14 December 2007.

40  Antoine Jacobs are implementing Union law.2 This has been interpreted by the Court as meaning ‘action in the field of application of EU law’ (see chapter six). At the same time, the case law of the CJEU has confirmed the paramount function of the Charter as regards these addressees: EU legislation itself, the employment relations of the civil servants of the EU institutions and the Member States in implementing and applying EU law. –– In the field of labour law there have been two cases in which the CJEU tested an EU rule in relation to the CFREU: the age limit for pilots in the civil ­aviation industry3 was found compatible with the prohibition of discrimination in Article 21 and with the right to work in Article 15.4 And the criminal law sanctions on the working time of lorry drivers5 were considered compatible with the principle of legality in criminal proceedings (Article 49(2)).6 –– There are also now the first judgments in which the CJEU confirmed that the CFREU does have effect on the European labour law covering the civil ­servants of the EU institutions.7 –– The CJEU, in a number of cases in which Member State legislation implementing EU law was tested in relation to the Charter, has already given its first interpretations of the text of the CFREU8 and used this Charter as an extra foundation for its decisions, which are also based on other arguments. The CJEU also uses Article 47 CFREU (the right to an effective remedy) to check whether Member States have indeed implemented EU labour law directives by providing for effective remedies.9 One of the more disputable points is that the CJEU has already on a few occasions invoked Article 16 – the freedom to conduct a business10 – to balance fundamental workers’ rights against business interests. Sometimes labour law provisions must be ‘read together with Article 16 of the Charter’.11 However, as the Court further explained in a subsequent case,12 the freedom to conduct a business is not absolute, and a fair balance may be required between this right

2 CJEU, 26 February 2013, C-617/10, Akkerberg Fransson; CJEU, 5 February 2015, C-117/14, Grima; CJEU, 27 March 2014, C-265/13, Torralbo Marcos; CJEU, order of 25 February 2016, C-520/15, Aiudapds, published in EU:C:2016:124; CJEU, 1 December 2016, C-395/15, Daouidi. 3 Regulation EU 1178/2011. 4 CJEU, 5 July 2017, C-190/16, Fries. 5 Regulation EC 561/2006. 6 CJEU, 20 December 2017, C-102/16, Vaditrans. 7 CJEU, 19 September 2013, C-579/12, Strack; see also a recent (although non-committal) example in GC, 16 November 2017, T-75/14, USFSPEI, ECLI:EU:T:2017:813. 8 CJEU, 6 March 2015, C-316/13, Fenoll. 9 See recently CJEU, 29 November 2017, C-214/16, King on 31 CFREU (the right on paid annual leave) and CJEU, 17 April 2018, C-414/16, Egenberger on labour in service of religion. 10 CJEU, 18 July 2013 C-426/11, Alemo-Herron. 11 CJEU, 27 April 2017, C-680/15, Asklepios. 12 CJEU, 21 December 2016, C-201/15, AGET Iraklis.

The Future of the CFREU  41 and fundamental labour rights on the basis of the principle of proportionality (see chapter 17). The most disputable aspect of CJEU case law is certainly that it initially refused to test the measures of the so-called Troika (European Commission, European Central Bank and International Monetary Fund) against the CFREU (see chapter four in this volume). Often by way of Memoranda of Understanding the Troika has exerted pressure on EU Member States hit by the financial crisis to make changes in individual or collective dismissal rules, working time regulations and rules on atypical contracts, as well as to implement pay freeze or cuts in the civil service, reductions in social welfare benefits and allowances, pension reform and reform of industrial relations and collective bargaining systems (decentralisation of collective bargaining, right to strike). The CJEU was initially not prepared to critically scrutinise these pressures on its ­compatibility with the CFREU.13 Its case law revealed a rather restrictive stance in that regard.14 It is only very recently that the CJEU has opened the door to testing so-called ‘austerity’ measures implemented under pressure from the Troika against the CFREU. It ruled that the ‘Memorandum of Understanding between the European Community and Romania, concluded in Bucharest and Brussels on 23 June 2009, must be regarded as an act of an EU institution, within the meaning of Article 267 TFEU, which may be subject to interpretation by the Court of Justice of the European Union’.15 It’s a day after the fair but better late than never! Thus one might infer that the Charter has now passed its childhood and now we have to face the future. Of course, we cannot prophesy but we can at least identify some clouds on the horizon and ask ourselves, as any good farmer would do, whether these clouds will bring the long-awaited rain that helps the crops to flourish or, by contrast, storms and floods that may ruin them. II.  THE EUROPEAN PILLAR OF SOCIAL RIGHTS

First of all, I would like to discuss the future of the CFREU in relation to the new European Pillar of Social Rights (the ‘EPSR’). The idea of an EPSR was launched by the European Commission in 2016.16 It had designed it as a compass for a renewed process of upward convergence towards better working and living conditions in Europe. It is conceived ­primarily

13 See for instance CJEU, 7 March 2013, C-128/12, Sindicato dos Bancarios and CJEU, 5 February 2015, C-2017/14, Nisttahuz Poclava. 14 L Jimena Quesada, ‘Social rights in the case-law of the CJEU, paper to the Conference on Social Rights in today’s Europe’, Nicosia, 24 February 2017, https://rm.coe.int/­CoERMPublicCommon SearchServices/DisplayDCTMContent?documentId=090000168070391d. 15 CJEU, 13 June 2017, C-258/14, Florescu. 16 COM (2016) 127 final.

42  Antoine Jacobs for the euro area but is applicable to all EU Member States wishing to be part of it. The EPSR sets out 20 key principles and rights to support fair and wellfunctioning labour markets and welfare systems, structured around three ­categories: (i) equal opportunities and access to the labour market; (ii) fair working conditions; and (iii) social protection and inclusion. The EPSR is not a legally binding document but a ‘political commitment’. Much of its contents have already been laid down in the European Social ­Charter (ESC), the EU Treaties and secondary legislation and indeed also in the CFREU. The EPSR is intended to fine-tune these rights to the economic realities of globalisation, flex-work and digitalisation. A number of principles and rights included in the Pillar will require further legislative initiatives to become ­effective. Where needed, existing EU law will be updated, complemented and better enforced. The EPSR should serve to re-start the process of convergence within the Economic and Monetary Union and some of the principles and rights could serve as guidance towards more binding standards for the euro area. Further EU legislative or non-legislative initiatives may follow in the future as part of the annual Commission Work Programmes. The European funds – in particularly the European Social Fund – will also provide financial support to implement many key aspects of the Pillar. After a year of consultations the Commission presented its final proposals on this idea. The Commission presented the EPSR in two legal forms with ­identical content: (i) as a Commission Recommendation,17 effective immediately, and (ii) as a proposal for a joint proclamation by the Parliament, the Council and the Commission. With certain amendments in the recitals of the Preamble this joint proclamation was effectively made at the Social Summit at Gothenburg, 17 November 2017.18 On that basis the Commission was to enter into further discussions with the European Parliament, the Council and the Social Partners to work towards achieving broad political support and high-level endorsement of the EPSR. Examining this new action on the Social Pillar the approach based on the notion of a ‘socle social’ (‘social floor’) encountered in the late 1980s comes to mind. In the course of the debate on the creation of a single European market in 1992, the Belgian Minister for Labour and Social Affairs proposed an EU core of guaranteed minimum social rights. A range of ‘basic social guarantees’ would secure recognition of citizens’ rights and avoid distortions of competition. 17 European Commission, Brussels, 26 April 2017 C(2017) 2600 final Commission Recommendation of 26 April 2017 on the European Pillar of Social Rights; this Recommendation shall be amended in order to bring it in line with the text of the Göteborg Declaration. 18 OJ C 428 of 13 December 2017.

The Future of the CFREU  43 This concept was taken up in the Community Charter of Fundamental Social Rights for Workers (Community Charter).19 The Community Charter was adopted at the Strasbourg meeting of the EEC Heads of State and ­Government held on 8 and 9 December 1989. However, the Community Charter was not endorsed by the British Prime Minister, so its legal status has been questioned right from the start. The Community Charter has served mainly as the inspiration and political legitimation for the Commission in formulating its subsequent legislative programme. Indeed, the Commission was quick to elaborate the Community Charter into a new Social Action Program as early as November 1989.20 This action programme contained almost 50, mainly legislative proposals designed to transform the ‘soft law’ principles of the Community Charter into binding ‘hard law’ Community commitments. By the year 2000, a great many of these proposals had already been adopted by the Council of Ministers of the EC. Thanks to the Treaties of Maastricht, Amsterdam and Lisbon, revising the European Treaties, the Community Charter remains a source of inspiration for the social policy of the EU, as it is now mentioned in Article 151(1) TFEU (ex-Article 136(1) EC) and in Recital 5 TEU. Thus the approach of the EPSR is, in my view, very much the same as the approach of the 1989 Community Charter. And one may expect that the EPSR will play the same role as the Community Charter did in the 1990s: to be the inspiration and political legitimation for the Commission in formulating its subsequent legislative programme. There are already the first indications of that, reading the Communication that the Commission published in March 2018 on Monitoring the Implementation of the European Pillar of Social Rights.21 It contains quite a number of actions and ‘soft law’ arrangements, but also half a dozen proposals for ‘hard’ European labour law. The first is the possible revision of the Written Statement Directive (Directive 91/533/EEC). Only a few years ago this Directive seemed to have become the first labour-law victim of the prevailing mood in the EU to get rid of too much Brussels regulatory ‘meddling’. The European Commission had started a complete programme to that end, ‘REFIT’.22 Directive 91/533/EEC was sent to research institutes in order to find out whether this document was still necessary. In the event, in 2017 the European Commission, instead of continuing pressure to ­abolish this Directive, sent a Proposal to the Council and the ­European

19 Text of the Community Charter of Fundamental Social Rights for Workers, background materials and comments are published in Social Europe 1/90; see B Bercusson, ‘The European Community’s Charter of Fundamental Social Rights for Workers’ (1990) Modern Law Review 624; see for an elaborate comment on this Charter, B Bercusson, European Labour Law (Cambridge, Cambridge University Press, 1996) ch 37. 20 Communication from the Commission concerning its Action Programme relating to the ­Implementation of the Community Charter of Basic Social Rights for Workers, COM(89) 568. 21 COM (2018) 130. 22 COM (2013) 122 final.

44  Antoine Jacobs ­ arliament to replace it with a more forceful Directive on Transparent and P Predictable Working Conditions.23 With reference to the EPSR! Somewhat earlier the Commission had come forward with a proposal24 to raise the number of working conditions in the Posted Workers Directive with a view to achieving parity between posted workers and comparable workers under the law of the country where they work (notably: they should not just receive the minimum wage, but the same remuneration in the state in which they are working). On 11 April 2018 the EU Ambassadors approved the compromise text agreed with the European Parliament on this proposed revision of the Posted Workers Directive.25 In the third place the Commission unfolded a Proposal to replace the ­Directive on Parental Leave with a much more comprehensive Directive on Work–Life Balance.26 In the fourth place the Commission recently proposed an extension of the Directive on carcinogens with set exposure limits or other measures for another seven cancer-causing chemicals.27 In the fifth place the Commission proposed the adoption of a Regulation on a European Labour Authority to promote the implementation and enforcement of European labour law.28 Finally the Commission also recently published proposals to strengthen the position of so-called ‘whistleblowers’, among other things with a Directive on the protection of people reporting of breaches of Union law.29 Certainly, in recent times the pressure has increased on the various institutions of the EU to take work on a Social Europe more seriously. The financial crisis (2008–14) increased inequality and stirred up Eurosceptic feelings. ­Euro-optimists dream that a Pillar of Social Rights could strengthen the labour market, labour law and social security in times of globalisation and digitalisation. But the question is: can this new development be reconciled with the mood of diminishing EU legislation? Has that mood passed? Or will it ­ultimately prevail as it did with regard to Commission proposals on a more general ­Directive prohibiting discrimination30 and on maternity leave?31 And what is going to be the relationship between the EPSR and the CFREU? At first sight the 37 items, couched in 20 social rights of the Social Pillar, are more comprehensive and concrete than the 14 fundamental social rights in CFREU. It may be that in the near future the CJEU will give concrete form to



23 COM

(2017) 2611 final. (2016) 128 final. 25 www.consilium.europa.eu/en/press-release/2018/04/11/posting-of-workers. 26 COM (2017) 253 final. 27 COM (2017) 12 final. 28 COM (2018) 131 final. 29 COM (2018) 214 final. 30 COM (2008) 426 final. 31 COM (2008) 637 final. 24 COM

The Future of the CFREU  45 the rights contained in the CFREU with the notions used in the comparable ­provisions of the Social Pillar. Nevertheless, these EPSR Rights are still very vague. They are often formulated in terms such as ‘fair’ wages, ‘suitable’ leave, ‘affordable’ care and ‘appropriate’ assistance for the homeless. Dismissal compensation, activation support, pensions, minimum wages and income benefits are supposed to be ‘adequate’. The exact definition of the notions ‘fair, suitable, affordable, appropriate and adequate’ remains as yet in the competence of the Member States. To formulate them in legally binding, true European norms is possible only via the competences to legislate in the norms of the European treaties, notably via ­Articles 153–55 TFEU. The EPSR has changed nothing in this regard: at Union level, it does not entail an extension of the Union’s powers and tasks as conferred by the Treaties. It is supposed to be implemented within the limits of those powers.32 One might have imagined that the EPSR would at least have announced a proposal for a Council decision within the meaning of ­Article 153(2)(last sentence) TFEU, which would have facilitated the adoption of certain labour law proposals, but this has not occurred. Moreover, not all of the 14 fundamental social rights are repeated in the EPSR. For instance, ­Article  12 CFREU (Right to trade union association) is not mentioned in the EPSR. And, although in Point 8a, second sentence EPSR there is a hackneyed reference to the right to collective ­bargaining and action, no specification of these rights is given, which in many Member States have been seriously undermined of late due to EU pressure to decentralise collective bargaining.33 Thus the impact of the EPSR on the CFREU is quite unpredictable. It could achieve legal progress or be merely an alibi.34 Note that the CJEU was not included in the Interinstitutional Proclamation of the EPSR issued in ­Gothenburg, November 2017. III. ‘BREXIT’

One of the most challenging elements with regard to current European attitudes to the EU is the UK government’s motion to leave the EU. This request is likely to dominate much of the EU’s attention in the coming months, while the negotiations on an exit agreement between the EU and the United Kingdom are supposed to be held. For our topic a major question is how fundamental rights might fare under ‘Brexit’? There is no doubt that ‘Brexit’ 32 See Recital 18 of the Interinstitutional Proclamation of the EPSR. 33 A Jacobs, ‘Decentralisation of Labour Law, Standard Setting and the Financial Crisis’ in N  Bruun et al (eds), The Economic and Financial Crisis and Collective Labour Law in Europe (Oxford, Hart Publishing, 2014) 171–92. 34 K Lörcher, ‘Die Europäische Säule Sozialer Rechte – Rechtsfortschritt oder Alibi?’ (2017) 10 AuR 387–93.

46  Antoine Jacobs cannot be understood to give the go-ahead to leave the ECHR. Although the ECHR has long served as a popular ‘whipping boy’ for British Eurosceptics, as things stand British citizens will still be able to invoke their rights under the ECHR in domestic courts and to lodge cases before the ECHR after ‘Brexit’ takes effect. However, the status of the CFREU is less clear. Although the ­European Union (Withdrawal) Bill, which actually is pending in the British Parliament, provided that, as a general rule, the whole body of EU law will be converted into British law, there are some explicit exclusions, among them Clause 5(4), which mentions the CFREU. According to the initial text of the Withdrawal Bill the CFREU would cease to be applicable in the United Kingdom on and after ‘exit day’. In parallel, Clause 5(5) would establish that this does not affect the retention in domestic law on or after the exit day in accordance with this Act of any other fundamental rights and principles which exist irrespective of the Charter (and references to the Charter are in any case law, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights and principles).

The UK government has claimed that no negative effects on the level of human rights protection will derive from the exclusion of the CFREU from retained EU  law because the CFREU did not establish new rights and principles, but merely codified existing ones, such as those contained in the European­ Convention on Human Rights (ECHR), in international human rights treaties applying to the United Kingdom and in rights and principles enshrined in common law and statute law. This approach has been sharply criticised, however. For example, Graziani35 has cast doubt on the adequacy of the remaining legal tools protecting human rights to fully compensate for the disapplication of the CFREU. She argues that the rights guaranteed by the ECHR do not correspond exactly to those of the CFREU. Human dignity and data protection, for example, are explicitly enshrined in the CFREU, but only interpretatively inferred from the ECHR. Second, remedies under the CFREU are different from those under ECHR. In fact, prior to ‘Brexit’, if a UK law contrasts with a directly applicable provision of the CFREU, UK judges will disapply it (if primary law) or quash it (if ­secondary law). By contrast, if a UK law violates the ECHR, there will merely be a judicial declaration of incompatibility, not resulting in the invalidation of the domestic law.36 Furthermore, while it is true that there are international human rights treaties that safeguard rights corresponding to those ensured by the CFREU, not all of them have been ratified by the United Kingdom, while others have been ratified, but never transposed into domestic law. Thus, it is

35 C Graziani, ‘The EU (Withdrawal) Bill and Human Rights in the UK: The State of The Art’, The Brexit Institute, 2018. 36 See this recently pronounced by the Supreme Court, 18 October 2017, in Benkharbouche v SOS for Foreign and Commonwealth Affairs, 2017 UKSC 62.

The Future of the CFREU  47 difficult to maintain that all of these rights offer the same standard of protection as the CFREU. Graziani concludes that excluding the CFREU from conversion may spread uncertainty. In particular, when domestic courts have to adjudicate controversies involving human rights, it may have negative consequences on their standard of protection. The scholarly criticism of the Bill as regards the CFREU was taken seriously by the House of Lords,37 which in April 2018 radically amended the text of the Withdrawal Bill on this point.38 The new text would provide that only the Preamble and Chapter V39 of the Charter shall not be part of domestic law on and after the day of exit (clause 6(4)). This would mean that most of the text of the Charter will remain part of British law! However, House of Lords amendments may be overruled and this amendment indeed was rejected by the House of Commons. So, the official text of what is now the European Union (­Withdrawal) Act contains the Clauses 5(4) and 5(5) as stated above in the­ original Bill. But there is more at stake than UK adherence to the rights contained in the CFREU. If the United Kingdom opted to seek a free trade agreement (FTA) with the EU, instead of retaining full membership of the single market, it would have to ensure a level of social protection that is ‘essentially equivalent’ to that guaranteed in the EU. Clause 20 in the official guidelines for the EU delegation to the Brexit negotiations reads: Any free trade agreement should be balanced, ambitious and wide-ranging. It cannot, however, amount to participation in the Single Market or parts thereof, as this would undermine its integrity and proper functioning. It must ensure a level playing field, notably in terms of competition and state aid, and in this regard encompass safeguards against unfair competitive advantages through, inter alia, tax, social, environmental and regulatory measures and practices.40

Human rights guarantees alone cannot be considered sufficient guarantee of a level playing field on the item of working conditions. The CFREU, the ECHR and other international human rights treaties ensure only minimum protection on some points. Beyond that there is the threat of social dumping, which is the real problem that the negotiators have to cope with, not the fundamental rights issue. The European Trade Union Confederation (ETUC) in a statement in March 201841 expressed grave concerns because existing EU FTAs with other

37 https://www.parliament.uk/business/committees/committees-a-z/commons-select/europeanscrutiny-committee/news/eu-charter/. 38 https://www.parliament.uk/business/news/2018/january/lords-debates-eu-withdrawal-bill/. 39 Strictly speaking there is no Chapter V in the CFREU, but a Title V (Citizen’s Rights). 40 See https://www.consilium.europa.eu/media/21763/29-euco-art50-guidelinesen.pdf; see also point 7 of the Guidelines of 15 December 2017, https://www.consilium.europa.eu/media/32236/ 15-euco-art50-guidelines-en.pdf. Emphasis added. 41 Statement of 7 and 8 March 2018, see https://www.etuc.org/documents/laying-foundationslevel-playing field.

48  Antoine Jacobs trading partners do not allow for a level playing field, particularly on social issues. For a number of reasons, developed in this ETUC statement, an FTA between the EU and the United Kingdom would not live up to the expectations of workers either in the United Kingdom or the EU27. What are the alternatives? At the time of writing studies are available on the various options, on both the EU2742 and the UK side.43 In my view, the best solution to this problem would be that the future commercial relationship between the EU and the United Kingdom should contain a strong clause on social ­dumping. If in a certain area social costs in the United Kingdom became considerably out of balance with those in the advanced EU countries the EU may temporarily restrict the import of such products and services. A source of i­nspiration may be the old Article 120 of the Treaty of Rome (now still in Article  158 TFEU): ‘Member States shall endeavour to maintain the existing equivalence between paid holiday schemes.’ This principle should apply after ‘Brexit’ to the totality of labour law and social security law. A worker-friendly type of dispute settlement mechanism should oversee this on the basis of complaints.44 IV.  THE RELATION BETWEEN THE CJEU AND THE ECTHR

Finally, the future of the CFREU will also be dominated by the relationship between the CJEU and the ECtHR. In this relationship not only are the instruments and the bodies supervising their applicability different, but so are the international organisations to which they belong. The Council of Europe has a lot more Members (47) than the EU (which may soon be reduced to 27); on the other hand, it does not impose its standards on its Member States as much as the EU. Until the year 2000 few people engaged in the employment area were really interested in the relation between the EU and the ECtHR because the ECHR apparently did not contain many rights with relevance for labour law. And the EU did not have its own comprehensive and binding catalogue of fundamental social rights. All this has changed in the meantime. The EU has acquired its own catalogue of fundamental social rights by adopting the Charter and the ECtHR has assumed a much more active role in its interpretation of the ECHR, which is now touching on labour law more than ever before. The new situation came to the surface most notoriously in 2007–09 when the CJEU and the ECtHR issued rulings on the freedom of trade union ­association and the right to strike. In the Viking and Laval cases45 (2007) the 42 http://www.europarl.europa.eu/RegData/etudes/STUD/2018/603866/EXPO_STU(2018)603866_ EN.pdf. 43 https://www.instituteforgovernment.org.uk/explainers/options-uk-trading-relationship-eu. 44 See the abovementioned ETUC statement. 45 CJEU 11 December 2007, C-438/05 (Viking); CJEU 18 December 2007, C-341/05 (Laval).

The Future of the CFREU  49 CJEU recognised the right to strike but balanced it against the economic freedoms. In the Demir and Baykara46 and Enerji Yapi-Yol Sen47 cases (2008–09) the ECtHR abandoned its former restrictive view on the material scope of ­Article 11 ECHR and recognised that the right to collective bargaining and the right to strike are also covered by this provision.48 These decisions were not really contradictory, but arose from different points of departure. The ECtHR in 2008–09 had not yet recognised in principle that the ECHR also protects the right to collective bargaining and the right to strike, so it had to take this first step. The CJEU a year earlier knew that both rights were included in the CFREU (and therefore recognised them en passant in these cases), but it had to address conflicts between these rights and the fundamental freedoms of the EU Treaties. This different approach in such a crucial and symbolic field as the right to strike has provoked a call for ‘dialogue’ between the ECtHR and the CJEU. This call, by the way, is not confined to labour law, but has a general character.49 In fact, there have been a number of good examples of well-functioning dialogue between the courts with regard to labour law. Take the right to property and pensions, which one can find in Article 1 Protocol 1 ECHR and in Article 17 CFREU. Some years ago, people started to invoke Article 1 Protocol 1 against reductions in their pensions. In its case law on this matter50 the ECtHR recognised (a) that Article 1 of Protocol 1 to the ECHR (Protection of P ­ roperty) is applicable to pensions, but also (b) that this right does not prohibit the State from reducing pensions. Under certain conditions reductions are compatible with Article 1 of Protocol 1 to the ECHR. Quite recently the CJEU was confronted with a case in which two magistrates invoked the right to property of Article 17 CFREU against reductions in their pensions.51 In its decision the CJEU referred to the quoted decision of the ECtHR and in complete conformity decided that Article 17 is applicable to pensions, but also that this right does not prohibit the State from making pension cuts. Under certain conditions ­reductions are compatible with Article 17 CFREU. This seems to me a perfect example of an ideal dialogue between the ECtHR and the CJEU, although the item – pension cuts – is of course not welcome to labour lawyers!

46 ECtHR, 12 November 2008, App No 34503/97, Demir and Baykara. 47 ECtHR, 21 April 2009, App No 68959/01, Enerji Yapi-Yol Sen. 48 F Dorssemont et al (eds), The European Convention on Human Rights and the Employment Relation (Oxford, Hart, 2013). 49 D Spielmann, ‘The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights – Or how to remain good neighbours after the Opinion 2/13’, Brussels, 27  March 2017 – FRAME; www.fp7-frame.eu/.../2017/.../ECHRCJUEdialog.BRUSSELS.final.; see also the (obviously ‘appeasing’ aimed) speech by Koen Lenaerts at the Solemn hearing in the frame of the ECtHR’s Opening of the ‘Judicial Year 2018’. 50 ECtHR, 12 October 2004, App No 60669/00, K Asmudsson v Iceland. 51 CJEU, 13 June 2017, C-258/14, Florescu.

50  Antoine Jacobs Let me take another example, cases involving religious symbols. In the ECtHR’s Eweida case52 and in the CJEU’s Samira Achbita case53 the courts had to rule on the prohibition of religious symbols on clothing or jewellery during working hours. The ECtHR in Eweida developed its reasoning that wearing ­religious symbols in the workplace was covered by the right to freedom of r­eligion. It recognised this aspect of the freedom of religion but also stated that an employer’s wish to project a certain corporate image may be a legitimate exception. However, in the Eweida case the ECtHR saw sufficient reasons to conclude that the domestic courts attributed too much weight to this factor and concluded to a violation of Article 9 ECHR. In Samira Achbita the CJEU also found the employer’s pursuit, in its relations with its customers, of a policy of political, philosophical and religious neutrality a legitimate aim, subject, however, to the reservation that the means of achieving that aim be appropriate and necessary, which it is for the referring court to ascertain. Some labour lawyers have a different opinion,54 but I think that this is also a good example of a coherent approach by the two courts in their case law, even though the results are contrasting. For example, the ECtHR performed a balancing exercise between the two principles and decided there had been a violation, while the CJEU refrained from performing the balancing exercise itself and left the outcome to the referring court. It is, by the way, interesting to see how both courts have already developed different tools to avoid making decisions on detailed and specific aspects of fundamental rights, the CJEU by referring the outcome of cases to national judges, the ECtHR by leaving detailed questions to a certain ‘margin of appreciation’ (discretion) on the part of the State.55 Opportunities for disharmony may nevertheless arise – apart from differences on the merits of the cases themselves – from two factors: time and room for derogations. The Charter in its Article 52(3) provides that insofar as the Charter contains rights that correspond to those recognised in the ECHR, the significance and the scope of these rights are the same as those conferred in the said convention (see chapter seven in this volume). This Article seems to emphasise the need for the CJEU to take into account the case law of the ECtHR. The problem, however, is, as we could clearly see with the Viking/Laval and Demir and Baykara/Enerji cases, that there is no set sequence between the case law of the two courts. The CJEU may already have

52 ECtHR, 15 January 2013, App No 48420/10, Eweida. 53 CJEU, 14 March 2017, C-157/15, Samira Achbita. 54 See for instance F Dorssemont, ‘Vrijheid van Religie op de Werkplaats en het Hof van Justitie: terug naar cuius regio, illius religio?’ (2018) Recht, Religie en Samenleving. A poll among Dutch labour lawyers, however, showed 80 per cent approval of the CJEU’s opinion, see AR-Updates 2017/ No 13. 55 See for instance ECtHR, 8 April 2014, App No 31045/10, RMT.

The Future of the CFREU  51 to decide in early stages of a conflict; the ECtHR only comes into play after all domestic instances have been exhausted. Therefore the development of the case law in Luxembourg may easily precede that of Strasbourg. Certainly, the ECtHR has for many years been overloaded with cases (for example, the Geotech case56 was brought in 2009, but decided only in 2016). A substantial chance for disharmony between the case law of the CJEU and the ECtHR may also reside in the fact that the CFREU and the ECHR do not have similar systems of derogations and counterpoises. The ECtHR often may only find a limitation of the fundamental social rights in accordance with the law and one that is necessary in a democratic society in the interests of national security, public safety for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The CJEU is supposed to pay more heed to the rights of business (Viking and Laval) and the occasional financial need to trim the welfare state (­austerity measures). The CJEU may balance social rights against economic freedoms. And – as already mentioned in the Introduction – it found in Article 16 of the Charter (the freedom to conduct a business) a substantial counterpoise to the social rights.57 Thus although the chances of conflicting case law on similar fundamental rights should not be exaggerated, it remains important to establish a good dialogue between the two courts. In the first place such good dialogue requires that both courts pay ample attention to each other’s rulings and show coherence. Obviously they do this already. A further means of avoiding disharmony might be to ensure regular contacts between the presidents of the courts and the other court judges. This, too, is already happening.58 The staff of both courts, together with scholars, may compile something like the American Restatements of the Law in which the contents of the case law on similar fundamental rights in CFREU and ECHR are summarised and analysed. Could the future accession of the EU to the ECHR (Article 6(2) TEU) help to prevent disharmony, for example by providing in the agreement on the accession of the EU to the ECHR, which is needed for that (Article 218(8) TFEU), that the CJEU, when confronted with as yet unresolved fundamental rights questions, can send prejudicial questions to the ECtHR? That may be possible, but is EU accession still going to occur now that the CJEU has disapproved of the first Draft Accession Agreement?59 There may be good reasons to reconsider the necessity of EU accession to the ECHR. Wasn’t this accession desired in the 1980s primarily because the decisions and regulations of the European institutions were not subject to testing to the fundamental

56 ECtHR,

2 June 2016, App No 23616/09, Geotech.

57 CJEU, 18 July 2013, C-426/11, Alemo-Herron; CJEU, 21 December 2016, C-201/15, Aget-Iraklis. 58 Spielmann 59 Opinion

(n 49). 2/13 of 18 December 2014, ECLI:EU:2014-2475.

52  Antoine Jacobs rights? As shown at the beginning of this chapter this lacuna has since been closed by the CJEU on the basis of the Charter. It may be true that a violation of fundamental rights by EU measures cannot be directly brought before the CJEU by individuals, due to the narrow interpretation that the Court has given of ‘individual concern’ in Article 263 TFEU.60 It seems to me that this last problem is more easily solved than the problem of accession. The EU institutions should perhaps focus on that. V. CONCLUSION

The CFREU has left its childhood behind, but it is uncertain how predictable developments will affect its status. There is the new European Pillar on Social Rights, which already seems to have stimulated new labour law initiatives at EU level. But will they bear fruit and what will be the impact of the Pillar on the Charter? ‘Brexit’ does not affect the ECHR but it is unclear whether it would destroy the relevance of the Charter for British law. However, even if ‘Brexit’ did not seriously weaken the application of fundamental rights in Britain, this would not be a sufficient barrier against social dumping, which should be tackled by stronger guarantees in any future commercial relationship between the EU and the United Kingdom. Although to date there has been no worrying discordance between the case law of the CJEU and of the ECtHR on similar fundamental rights, both courts can do more to avoid discordance in the future. It is, however, uncertain whether the planned accession of the EU to the ECHR can contribute to this.



60 CJEU,

25 July 2002, C-50/00, Pequenos Agricultores.

4 In Search of the EU’s Social Constitution: Using the Charter to Recalibrate Social and Economic Rights SIMON DEAKIN

I. INTRODUCTION

A

decade on from its inception, Europe’s financial crisis has abated, but not ended. In response, there have been Treaty amendments and intergovernmental agreements, memoranda of understanding and economic adjustment packages, ‘macroeconomic imbalance procedures’ and ‘social scoreboards’, all ostensibly designed to repair the damage caused by the current crisis and to forestall the next one. Europe’s ‘economic constitution’ has had to bend to avoid being broken. The unravelling of the single currency was avoided not by the multifarious forms of economic governance emerging from the European Semester process, but by the liquidity support and bond-buying programmes initiated by the European Central Bank (ECB). The ordoliberal ideal of a market order underpinned by law came face to face with the reality of a systemic crisis. When the CJEU decided in Gauweiler to reject a legal challenge to the ECB’s Outright Market Transactions (‘OMT’) programme, it did so on the basis that the Bank ‘must… be afforded a broad discretion for the purpose of framing and implementing the Union’s monetary policy’, meanwhile recognising that the Court itself had to ‘avoid the risk of supplanting the Bank, by venturing into a highly technical terrain in which it is necessary to have an expertise and experience which, according to the Treaties, devolves solely upon the ECB’.1 As Christian Joerges has noted, ‘what this statement implies is… an explicit rejection of the ordoliberal project of an “economic constitution” in which the ordering of



1 Case

C-62/14 Gauweiler, Judgment of 15 June 2015, at para 43.

54  Simon Deakin the economy would be guided by legal rules and justiciable criteria’.2 It seems that the ECB now considers itself beyond the scope of normal mechanisms of accountability, having refused to participate in a review by the European Court of Auditors of interventions by EU institutions in the Greek financial crisis. The review, which was highly critical of the conduct of the Greek economic adjustment programmes conducted since 2010, should have been extended to the Bank ‘in line with the ECA’s mandate to audit the operational efficiency of the ECB’ but had to be confined to the role of the Commission when the Bank queried the ECA’s mandate and refused to give evidence to it.3 The ordoliberal project was always an ideal rather than a reality, a reinvention of a nineteenth century ‘private law society’ which was sooner or later bound to come up against the practical necessity for administrative action to stabilise and regulate markets. This is because, as Karl Polanyi recognised, it is ‘not human beings and natural resources only’ but also ‘the organisation of capitalistic production itself’ which have to be ‘sheltered from the devastating effects of a self-regulating market’. If, as he put it, ‘factory legislation and social laws were required to protect industrial man’, then ‘it was equally true that central banking and the management of the monetary system were needed to keep manufactures and other productive enterprises safe from the harm involved in the commodity fiction as applied to money’.4 Over seven decades after the publication of The Great Transformation, the leaders of the European Union seem intent on forgetting this lesson. How else can we explain their determination to press ahead with the plan to embed in EU law the intergovernmental Treaty on Stability, Coordination and Governance (‘TSCG’),5 a measure designed to constitutionalise policies of austerity which have been fracturing societies across Europe for the past decade?6 It is not just Polanyi’s warning that is being ignored; the Gauweiler episode itself suggests the futility of trying to elevate economic policy to the level of a constitutional norm. In a financial emergency, the TSCG will be no more likely to prevent necessary market interventions than was the so-called ‘no bail out clause’ (Article 125 TFEU) in the case of the OMT. But Article 125 did delay the Bank’s intervention, exacerbating the effects of the crisis in Greece and other

2 C Joerges, ‘Social Justice in an Ever More Diverse Union’ in F Vandenbroucke, C Barnard and G De Baere (eds), A European Social Union After the Crisis (Cambridge, CUP, 2017) 113. 3 ECA, ‘The Commission’s Intervention in the Greek financial crisis’ Report No 17, November 2017, available at: https://links.mailingplus.net/goto/b32-pq8o11gohjniq5gcii2q31rtp22l1mn6hpm3bv6e08v43eh6lnp5hvumk4ofvebtgu3np2co58ei3s2au1r17k6k4dpetqnat756m275v6rv10ruuc7b9r2qmlikgqceoluu2q1sh5ehc. 4 K Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston, Beacon Press, 1957) 132. 5 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, T/SCG/en, Brussels, 2 March 2012. 6 On the TSCG, see L Obendorfer, ‘A New Economic Governance through Secondary Legislation? Analysis and Constitutional Assessment: from New Constitutionalism, via Authoritarian Constitutionalism to Progressive Constitutionalism’ in N Bruun, K Lörcher and I Schömann (eds), The Economic and Financial Crisis and Collective Labour Law in Europe (Oxford, Hart, 2014).

In Search of the Social Constitution  55 indebted states.7 Embedding the TSCG in the Treaties will not make another crisis less likely.8 Given that the idea of the ordoliberal economic constitution is an inherently problematic one, it may be that there is little point in pursuing the idea of a European ‘social constitution’: what we need instead are more social policies. That view is correct as far as it goes, but in the law-driven order which the EU has become, is not a complete solution. Private law and competition law now flow into the area previously demarcated for labour law, to the extent that the language of human rights itself has been appropriated to serve ‘freedom of contract’ and ‘freedom of enterprise’.9 As a result, the division between the economic and the social is eroding away, together with the autonomy of labour and social security law. It is this issue which must be addressed. Under these circumstances, it will not be sufficient to point to those provisions of the Charter which refer to social rights and freedoms as evidence of a ‘social constitution’. It is also necessary to address what might be described as a ‘structural issue’, namely, the question of how the relationship between social and economic rights could be recalibrated in a way which avoids the subordination of the former to the latter. II.  THE NATURE OF THE SOCIAL CONSTITUTION

The search for the ‘social constitution’ might usefully begin with a consideration of what is meant exactly by its ‘economic’ equivalent. The term ‘economic constitution’ is not found in any of the Treaties, but has been applied by a number of authors and commentators to the assemblage of rules, some found in the Treaties and in general principles of law, others derived from case law and secondary legislation, which together determine the economic raison d’être, aims, policies and mechanisms of the European Union.10 So defined, we can

7 S Deakin, ‘Social Policy, Economic Governance and EMU: Alternatives to Austerity’ in Bruun, Lörcher and Schömann (n 6). 8 J Weeks, ‘National Fiscal Flexibility: EU Parliament Plans a Big Step Backwards’ Social Europe 16 October 2017, https://www.socialeurope.eu/national-fiscal-flexibility-eu-parliament-plans-bigstep-backwards. 9 In the context of Art 16, CFREU, examined further below. 10 According to Niilo Jääskinen (‘Fundamental Social Rights in the Charter – Are they Rights? Are they Fundamental?’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart, 2014)), the concept of the economic constitution is ‘metaphorical’ and refers to ‘the legal framework of the economic community concentrated on the liberalisation necessary for trans-border access and the establishment of a system of undistorted competition’, ideas he associates with ‘the spirit of German ordoliberalism’ (at 1704). Other authors who have considered the nature of the economic constitution in terms of its relationship to EU social law and policy include Christian Joerges and Florian Rödl (C Joerges and F Rödl, ‘The “Social Market Economy” as Europe’s Social Model?’ in L Magnusson and B Stråth (eds), A European Social Citizenship? Preconditions for Future Policies in Historical Light (Brussels, Lang, 2005)) and Floris De Witte (F De Witte, ‘The Architecture of a Social Market Economy’ in P Koutrakos and J Snell (eds), Research Handbook on the EU’s Internal Market (Cheltenham, Edward Elgar, 2016)).

56  Simon Deakin think of the ‘economic constitution’ as referring to the Treaty provisions setting out in general terms the Union’s commitment to a ‘highly competitive social market economy’,11 underpinning single market rights (the ‘four freedoms’),12 and putting in place a transnational competition policy.13 Also included in the economic constitution would be those Treaty provisions demarcating the scope of the Union’s economic and monetary policies and establishing the framework for the single currency, including those setting out the status and powers of the European Central Bank, along with related aspects of the project of economic and monetary union (‘EMU’).14 Account should also be taken of subsidiary norms establishing the framework for economic and monetary policy-making through the European Semester process, as well as certain more specific measures, such as the Stability and Growth Pact15 and its successors in terms of Eurozone governance, the regulations known as the ‘six pack’16 and ‘two pack’.17 Certain measures of an intergovernmental nature, such as the Euro Plus Pact18 and the TSCG,19 could also be considered part of the Union’s economic constitution, so defined.20

11 Art 3(3) TEU. In the first draft of the Constitutional Treaty this clause had simply referred to the ‘social market economy’; the ‘highly competitive’ part was added later. See Joerges (n 2) 103. 12 TFEU Arts 28, 45, 49, 56, and 63. 13 TFEU, Title VII. 14 TFEU, Title VIII. 15 Council Regulation 1466/97, OJ L 209/1, 2.8.97, Council Regulation 1467/97, OJ L 209/7, 2.8.97, and Resolution 97/C 236/01, OJ C 236/01, 2.8.97; see S Deakin and H Reed, ‘The Contested Meaning of Labour Market Flexibility: Economic Theory and the Discourse of European Integration’ in J Shaw (ed), The Evolution of EC Social Policy (Oxford, Hart, 2000) 71–99. 16 Council Regulation (EU) No 1177/2011 of 8 November 2011 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure; Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances; Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies; Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area; Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area; and Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States. 17 Regulation (EU) No 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area; Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability. 18 Euro Plus Pact. Stronger Economic Policy Coordination for Competitiveness and Convergence, European Council Conclusions, 24/25 March 2011, EUCO 10/1/11 REV 1, Annex 1. 19 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, T/SCG/en, Brussels, 2 March 2012. 20 See generally, Obendorfer (n 6).

In Search of the Social Constitution  57 Much of this economic regulation is relatively recent in the sense of postdating (and ultimately deriving from) the Maastricht Treaty.21 Since Maastricht, economic policy norms have come to outnumber and eclipse social policy ones. Social policy, which was limited in scope under the Rome Treaty but which flowered briefly when the single market was being actively constructed in the mid-1980s and under the Delors Presidency,22 has made halting progress ever since, one exception to this trend being the adoption of the Charter at the Nice summit23 and its later embedding in EU law through the Lisbon Treaty.24 Although a general human rights measure, the Charter’s Solidarity Title, along with certain other of its provisions, refers to extensively to social policy issues.25 Notwithstanding the adoption of the Charter and the legal force which it was accorded through the Lisbon Treaty, the EU appears to lack a coherent ‘social constitution’. EU labour law is fragmented and piecemeal, with some core institutions of labour market regulation, such as the minimum wage, featuring neither in the Social Policy Title (‘SPT’),26 nor in the CFREU.27 Collective labour law rights, such as the right to freedom of association and the right to strike, are outside the rule-making powers conferred by the SPT.28 The marginal role accorded, in particular, to collective social rights suggests that the EU might be very far from having the kind of ‘social’ or ‘labour’ constitution described, classically, by Hugo Sinzheimer and more recently by Ruth Dukes in terms of ‘the law relating to collective bargaining and industrial action, works councils, workplace agreements, worker representation on company boards, and arbitration’.29 On the other hand, the Charter, in Article 28, does now refer to ‘the right of workers and employers’ or their ‘respective organisations’ to ‘negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action’. The right to strike has also been accorded recognition as a ‘fundamental principle’ of EU law in the case law of the Court, albeit in circumstances which subordinated that right to the ‘economic freedoms’ of internal market law.30 At this point, we might ask ourselves: does social policy have a ‘constitutional’ significance for the Union in a sense which is distinct from the precise 21 Deakin (n 7). 22 See J Kenner, EU Employment Law: From Rome to Amsterdam and Beyond (Oxford, Hart Publishing, 2003). 23 OJ 2000/C 364/01, 18.12.2000. 24 Art 1(8) of the Lisbon Treaty, OJ 2007/C 306, 17.12.2007. 25 See chs 21–27 of this book. 26 TFEU, Title IX. 27 On whether a right to fair remuneration might be found in Art 31 of the Charter (the right to fair and just working conditions), see the chapter by Klaus Lörcher in this book. 28 The exclusion of ‘pay, the right of association, the right to strike or the right to impose lock-out’ from the competence to adopt directives under the SPT is contained in Art 153(5). On the reasons for the exclusion, see Kenner (n 22). 29 R Dukes, The Labour Constitution: The Enduring Idea of Labour Law (Oxford, OUP, 2014) 33. 30 On Art 28 and related aspects of collective labour rights as fundamental rights in EU law, see the chapter by Filip Dorssemont and Marco Rocca in this volume.

58  Simon Deakin content of the provisions of the SPT (along with related directives and other legal instruments) and the CFREU? In other words, can we infer from the various legal texts referring to labour and social security a kind of social ‘equivalent’ to the economic ‘constitution’ identified by various authors and commentators referred to above? We cannot determine whether there is a ‘social constitution’ in this sense simply by looking at the content of rules which have a bearing on labour social security law, as conventionally defined at national level. Economic rules have the nature of a ‘constitution’ because they operate in a more or less functional way to bring about what are taken to be core goals of the European project, including the establishment of an internal market based on undistorted competition, and, more broadly, the realisation of economic and monetary union. Underlying these ideas are various theories and philosophies, in particular ordoliberal thought.31 To determine whether there is a ‘social constitution’, one way is to see if similar functional roles and philosophical justifications can be found for social rights. A first sense in which social policy might have this wider ‘constitutional’ significance is concerned with the impact of EU law on the capacity of the Member States to make their own social policy. In nation states with a federal structure, such as the United States of America, this question is part of the wider issue of ‘states’ rights’. The EU is not a federal nation state but the question of the relationship between rule-making at the centre and rule-making in decentralised units of governance is just as much a live issue in the EU as it is in the US.32 One of the reasons for the limited scope of EU social policy in the Treaty of Rome was the idea that labour law and social security regulation was a matter best left to the Member States.33 After the Laval Quartet34 and AGET Iraklis35 no one can maintain that this is still the case. Increasingly, the priorities of the ‘economic constitution’ as expressed in the law of the internal market are being used to reshape national labour laws in a deregulatory direction. The second sense in which social policy has a constitutional significance beyond the specific provisions of the SPT and CFREU concerns the sense in

31 Jääskinen (n 10); Joerges and Rödl (n 10). 32 S Deakin, ‘Labour Law as Market Regulation’ in P Davies, A Lyon-Caen, S Sciarra and S ­Simitis (eds), European Community Labour Law: Principles and Perspectives (Oxford, OUP, 1996); S  ­Giubboni, Social Rights and Market Freedoms in the European Constitution. A Labour Law Perspective (Cambridge, CUP, 2006). 33 Ohlin Report, ‘Social Aspects of European Economic Cooperation’ (1956) 74 International Labour Review 99. 34 Case C–438/05, International Transport Workers’ Federation v Viking Line ABP, Judgment of 11 Dec 2007; Case C–341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Judgment of 18 Dec 2007; Case C-336/06, Rüffert v Land Niedersachsen, Judgment of 3 April 2008; Case C-319/06 Commission v Luxembourg, Judgment of 19 June 2008. See C Joerges and F Rödl, ‘Informal Politics, Formalized Law and the “Social Deficit” of European Integration: Reflections after the Judgments of the ECJ in Viking and Laval’ (2009) 15 European Law Journal 1. 35 Case C-201/15, AGET Iraklis v Ypourgos Egasias, Koinonikis Asfalisis kai Koinonikis A ­ llilengyis, judgment of 21 December 2016.

In Search of the Social Constitution  59 which social policy now features as a dimension of Eurozone governance. This can be seen, for example, in the way that wage determination has become an issue for discussion within the framework of the European Semester process, and in the evolving interpretation of the regulations which form part of the ‘six pack’36 and ‘two pack’.37 The link between social policy and Eurozone governance is made explicit in various documents pertaining to the European Pillar of Social Rights.38 Can we find a way to integrate the social rights contained in the SPT and CFREU into, first, internal market law and, second, the process of EU economic governance, in a way which shapes that process in a more egalitarian and socially-cohesive direction than has so far been possible? To date, attempts to use social rights to qualify economic freedoms in the context of internal market law have raised a number of issues but have so far failed to make very substantial inroads into the Court’s post-Laval jurisprudence.39 A similar failure can be seen in the efforts to invoke the CFREU in proceedings before the Court designed to counter the deregulatory and austerity-driven agenda of sovereign debt restructurings.40

36 See above, n 16. 37 See above, n 17. 38 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Launching a Consultation on a European Pillar of Social Rights (COM(2016) 127 final, Strasbourg, 8.3.2016); Commission Recommendation of 26.4.2017 on the European Pillar of Social Rights, Brussels, 26.4.2017, C(2017) 2600 final; Proposal for an Interinstitutional Proclamation on the European Pillar of Social Rights, Brussels, 20.10.2017, SOC 634 EMPL 482 EDUC 365 SAN 350 ECOFIN 816; Social Summit for Fair Jobs and Growth, Gothenburg, 17 November 2017, http://www.socialsummit17.se/. According to Recital 13 of the Interinstitutional Proclamation (above), ‘A stronger focus on employment and social performance is particularly important to increase resilience and deepen the Economic and Monetary Union. For this reason, the European Pillar of Social Rights is notably conceived for the euro area but it is addressed to all Member States’. 39 Case C-271/08, Commission v Germany, judgment of 15 July 2010; Case C-515/08, Santos Palhota and Others, judgment of 7 October 2010; CA eC-115/14, RegioPost, Judgment of 17 ­November 2015; Case C-396/13, Sähköalojen ammatiluutto, Judgment of 12 February 2015. For discussion see S Feenstra, ‘Resolving the Viking/Laval Conundrum’ in Vandenbroucke, Barnard and De Baere (n 2) 331–36. In addition to discussing this case law, Feenstra also considers the possible role of changes made by the Treaty of Lisbon including Arts 2 and 4(2) TEU (referring respectively to respect for human rights as a foundational value of EU law and the need of the EU legal order to respect the political and constitutional structures of the Member States) and Art 9 TFEU (the so-called ‘horizontal’ social clause). He concludes that these changes ‘have no concrete implications for the relationship or balance to be struck between economic freedoms and fundamental rights as such’ (at 333). 40 Case C-128/12, Sindicato dos Bancários do Norte, Order of 7 March 2013; Case C-264/12, Sindacato Nacional dos Profeissionais de Seguro v Fidelidade Mundial, Order of 26 June 2014; see the chapters by Antoine Jacobs (‘The future of the EU Charter on Fundamental Social Rights’) and Klaus Lörcher (‘Interpretation’) in this book. In Case C-258/14 Florescu v Casa Judeţeană de Pensii Sibiu, Judgment of 13 June 2017, the Court ruled that it could review the Memorandum of Understanding of 23 June 2009 between Romania and the European Commission on the basis that it was an act of a Union institution within the meaning of Art 267 TFEU, and went on to determine whether it was overriden by the right to property contained in Art 17 CFREU. It found that, on the facts of the case, it was not. While this decision is a step in the right direction, it should be

60  Simon Deakin Under these problematic circumstances, we could usefully return to first principles and ask exactly what it is that the EU’s ‘economic constitution’ is meant to be achieving at points where it intersects with social policy. Three sets of questions need to be considered. The first is concerned with the relationship between social policy and the law of the internal market. When EU laws empower capital to move across borders and then classify national-level regulations of business firms as distortions of competition, what assumptions are being made about how markets work and of the role of legal rules in constituting and regulating them? Can a coherent account be given of a regulatory ‘restriction’ or ‘distortion’ of competition, or is this simply a smokescreen for a policy agenda of shrinking the welfare state and removing protective labour regulation? The second focuses on the place of social policy within the process of EMU. What are the costs of conceptualising monetary policy as an exclusive legal competence of the Union, administered by a central bank which has been placed beyond democratic accountability,41 when economic and social policy competences are divided, in ways which are unclear and contested, between the Union and the Member States? The third addresses the issue of the division of rule-making powers between the Union and the Member States. Can we arrive at a more principled account of the balance between federal laws and states’ rights, of the kind which US jurisprudence achieved during the New Deal years, which preserves democratic values in the face of claims made for prioritising the interests of capital? Essential for resolving each of these issues is the ‘transversal’ question of the relevance of Charter provisions: how far can the rights contained in the Charter be called in aid when interpreting the relationship between social policy, on the one hand, and the single market and EMU, on the other? In this context it is important to bear in mind the multiple functions which social rights can play within the context of any particular legal order.

borne in mind that Art 17 is not a ‘social right’ as such. Proceedings brought before the European Court of Human Rights to challenge austerity measures have also proved unsuccessful: Koufaki and ADEDY v Greece Application Nos 57665/12 and 57657/12, Judgment of 7 May 2013; De Conceição Mateus v Portugal Applications 62235/12 and 57725/12, Judgment of 31 October 2013. See also F Tulkens, ‘The European Convention on Human Rights and the Economic Crisis: the Issue of Poverty’, Distinguished Lecture delivered on the occasion of the XXIV Human Rights Law course of the Academy of European Law, on 24 June 2013, http://cadmus.eui.eu/handle/1814/28099; C ­Kilpatrick and B De Witte, ‘A Comparative Framing of Fundamental Rights Challenges to Social Crisis Measures in the Eurozone’ (2014) 7 Sieps European Policy Analysis 1 http://www.sieps.se/ sites/default/files/2014_7epa_eng_A4.pdf; L Mola, ‘The Margin of Appreciation accorded to States in Times of Economic Crisis (2015) 5 Lex Social Revista de Derechos Sociales 191, http://www. upo.es/revistas/index.php/lex_social/article/view/1188. By contrast, arguments brought before the­ European Committee on Social Rights under Art 4 RESC have had more success: General Federation of Employees of the National Electric Power Corp. and Confederation of Greek Civil Servants’ Trade Unions v Greece, Complaints No 65/2011 and 66/2011, decision on the merits of 23 May 2012. 41 See n 3 above.

In Search of the Social Constitution  61 Jääskinen identifies at least six potential legal effects of fundamental social rights.42 The creation of a subjective right which can be exercised without recourse to other legal provisions is only one such effect. Others include the conferral of powers and mandates on legislatures, the cancelling out of conflicting rights or claims, programmatic effects requiring a state or other actor to take steps to realise certain goals, and non-regression clauses preventing the lowering of existing standards. In addition, and most importantly for our purposes, he points to the ‘interpretative’ effects of social rights. In the context we are considering, this refers to the role of the Charter in requiring EU law in general to be interpreted as far as possible ‘in harmony’ with social rights. In what follows, it will be argued that in order for the Charter to play this role, it will be necessary to develop an underlying concept of the ‘social’ which counterbalances economic and monetary considerations. This does not mean that social policies and values will necessarily override economic and monetary ones. Sometimes they will, in which case trade-offs between social rights and economic considerations will have to be identified and justified. More often, however, social rights will be complementary to the operation of the internal market and to the sustainability of EMU. The idea that social rights, by their nature, operate as ‘restrictions’ on economic activity is a fundamental error which the Court fell into in Viking and Laval,43 akin to the US Supreme Court’s wrong turning in the Lochner decision44 a century or so ago. The misstep made in Viking and Laval has been doing serious damage not just to the conceptual fabric of EU law45 but to the political legitimacy of the wider European project.46 Reversing this logic is the first, critical step in constructing a meaningful social constitution for the Union. III.  THE SOCIAL CONSTITUTION AND THE INTERNAL MARKET

A.  Internal Market Law as a Law of Coordination All markets require rules. At the level of the nation state, these include the rules of private law which constitute forms of property and underpin contractual exchange, as well as the antitrust rules which ordoliberal theory particularly

42 See n 10 above. 43 Case C–438/05, International Transport Workers’ Federation v Viking Line ABP, Judgment of 11 Dec 2007; Case C–341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Judgment of 18 Dec 2007. 44 Lochner v New York 198 US 45 (1905). 45 S Deakin, ‘Regulatory Competition after Laval’ (2008) 10 Cambridge Yearbook of European Legal Studies 581–609. 46 S Deakin, ‘Brexit, Labour Rights and Migration: Why Wisbech Matters to Brussels’ (2016) 17 German Law Journal 13–20.

62  Simon Deakin emphasises as necessary to protect the market against the power exercised by organised capital.47 Receiving less emphasis in ordoliberal thought but just as necessary for the functioning of a market order of the laws needed for labour markets to function: laws establishing mechanisms of mutual support for the management of labour market risks (social insurance), laws providing for the resolution of conflicts of rights and interests in distributional disputes (collective labour law), and laws compensating for the effects of asymmetries of power in the relationship between worker and employer (individual employment law).48 Transnational markets need rules of a distinct kind: rules for the coordination of national rules governing production, commerce and trade. Rules on mutual recognition, non-discrimination and harmonisation form the essence of transnational economic law in this sense, whether the immediate context is that of the EU,49 the ILO50 or the WTO.51 Thus the law of the EU’s internal market should be seen as, essentially, a coordinating law,52 meaning that it should not directly displace national lawmaking, or at least, do so as little as possible. In so far as it has a displacing effect, it not only lacks functionality as a form of transnational economic law, but runs the risk of undermining democratic decision-making processes within nation states. For all the progress made towards economic and political integration in Europe since the 1950s, it remains the case that it is within the Member States, and not through institutions or organs of the Union, that conflicting interests are expressed and reconciled through the democratic process. One of the features of national markets which delimits them to a particular territorial space is the uniform application of legal rules within that space. This principle can be qualified if the state in question has a federal structure, but only up to a point; in a federal state, there will necessarily be limits to the degree of regulatory diversity permitted to lower level units of government. How far, then, does the creation of the EU’s internal market require an equivalent

47 On legal dimensions of ordoliberalism, see Joerges (n 2); KW Nörr, ‘A Symbiosis with Reserve: Social Market Economy and Legal Order in Germany’ in P Koslowski (ed), The Social Market Economy: Theory and Ethics of the Economic Order (Frankfurt, Springer, 1998); R Ptak, ‘Neoliberalism in Germany’ in P Mirowski and D Plehwe (eds), The Road From Mont Pèlerin (Cambridge MA and London, Harvard University Press, 2009); G Schnyder and M Siems, ‘The ordoliberal variety of neoliberalism’ in S Konzelmann and M Fovargue-Davies (eds), Banking Systems in the Crisis: The Faces of Liberal Capitalism (Abingdon, Routledge, 2013). 48 S Deakin and F Wilkinson, The Law of the Labour Market: Industrialisation, Employment, and Legal Evolution (Oxford, OUP, 2005). 49 C Barnard, The Substantive Law of the EU: The Four Freedoms 4th edn (Oxford, OUP, 2013). 50 Classically, L Valticos, International Labour Law (Deventer, Kluwer, 1979). 51 L Bartels and F Ortino (eds), Regional Trade Agreements and the WTO Legal System (Oxford, OUP, 2006). 52 The term ‘coordination’ is used here to express the functional operation of internal market law and not in the more precise sense of the ‘coordination’ of national rules of social security law affecting migrant workers and their dependants (Jääskinen (n 10) 1705).

In Search of the Social Constitution  63 s­ tandardisation of legal rules, in other words, a process which parallels the unification of trading conditions which is the norm within nation states? The answer is that it doesn’t, or at least shouldn’t. It was when the Court of Justice lost sight of the difference between transnational coordination and national regulation that internal market law was set on the road towards its current state of ­confusion. There was a time in the evolution of the European Union when the distinction was well understood. The Spaak Report, written in the year before the conclusion of the Treaty of Rome, noted that within what was then called the ‘common’ market, ‘it will be necessary to consider with the greatest care whether, either by virtue of their own impact or by reason of disparities between two or more countries’, legislative and regulatory provisions ‘may have such an impact on costs and prices’ as to ‘have the effect of distorting conditions of competition among the national economies as a whole or in particular branches of economic activity’.53 Thus two possible sources of ‘distortion’ were identified: national laws could set a level of regulation which, in and of itself, was unduly restrictive; or, differences between laws could have a distorting effect. But the Spaak report was very careful to reject the idea that the solution, in either case, lay in the imposition of uniform laws from the centre. On the contrary, the report’s authors considered that ‘it will be necessary to identify very precisely the limits of whatever action is necessary, and to dispel certain misunderstandings’.54 The misunderstanding they seem to have particularly had in mind is the idea that transnational economic integration requires that the same laws apply across national borders. Most of the report is devoted to explaining why the harmonisation of national rules is not a necessary precondition of building a transnational market.55 This was above all the case for the labour market: Spaak’s rejection of arguments for a comprehensive programme of labour law harmonisation came to be embedded in the language of Article 117 EEC, with its emphasis on the somewhat different concept of ‘approximation’ of laws.56 This was, on the one hand, an argument for allowing the market to work once labour and capital were free to move across national borders, but also an argument for retaining national-level democratic decision-making in a sensitive area of policy. When we get to the case law stemming from the Viking and Laval decisions, 50 years later, the language used to justify the outcomes in this line of cases is 53 Comité Intergouvernemental créé par la conference de Messine, Rapport des Chefs de Délégation ajux Ministres des Affaires Etrangères, Brussels, 21.4.1956 (‘Spaak Report’), at 60. 54 ibid. 55 See Deakin (n 32). 56 At the same time, under Art 117, the ‘Member States agree upon the need to promote improved working conditions and an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained’, so implying ‘upwards convergence’ of standards; see now, Art 153(2)(b) TFEU; Deakin (n 32).

64  Simon Deakin so strikingly different from that of the Spaak Report that we are bound to ask how, when the provisions in question are essentially unchanged from the time of the Rome Treaty, such a radical reinterpretation could have taken place. The language used is revealing, in that it offers no explanation for the change beyond a very blunt and somewhat desperate series of assertions. It ‘must be pointed out’, the Court insists in Laval, ‘that the right of trade unions of a Member State to take collective action by which undertakings established in other Member States may be forced to sign [a] collective agreement’ is ‘liable to make it less attractive, or more difficult, for such undertakings’ to operate in the Member State in question, and ‘therefore constitutes a restriction on the freedom to provide services’.57 According to Advocate General Mengozzi in the same case, it is ‘undeniable’ that the strike action which ‘had the effect of compelling Laval to give up performance of its contract on the Vaxholm site’ was a ‘restriction on the freedom to provide services’.58 In Rüffert there was, according to Advocate General Bot, ‘barely any doubt’ that a ‘restriction on the freedom to provide services exists’ when a sector-level collective agreement, extended by ministerial order to all firms operating in the industry in question, is applied to a foreignowned subcontractor.59 Most extraordinary is the blunt assertion of Advocate General Wahl in AGET Iraklis that because the EU is a ‘free market economy’ (no mention of the ‘social market’ here), ‘undertakings must have the freedom to conduct their business as they see fit’.60 ‘It must be pointed out’; it is ‘undeniable’; there is ‘barely any doubt’; undertakings ‘must’ be free to do business as they see fit. The extravagance of the language masks the reality, which is that the arguments being made here were both novel and unprincipled. Recall that the function of internal market rules is (or should be) to coordinate national rules.61 National rules which are not formally discriminatory can only ‘distort’ or ‘restrict’ the internal market in one of the two senses identified by the Spaak report: they can set protective standards which are inherently too high; or they can be too protective by reference to the standard set by the laws of another Member State. The problem with the first of these is that it can only provide a basis for intervention if the court has criteria at its disposal for determining what amounts to an absolute restriction. The problem with the second is that there needs to be some basis for determining when differences between laws, which are unavoidable in a context where labour laws are shaped by national-level decision-making, become distortions: in other words, a comparative restriction. Neither in Laval, nor in the later case law up to and



57 Laval,

Judgment, para 99. Opinion, para 233. 59 Rüffert, Opinion, para 102; see also Rüffert, Judgment, at para 38. 60 AGET Iraklis, Opinion, at para 1. 61 Deakin (n 32); Joerges (n 2). 58 Laval,

In Search of the Social Constitution  65 including the decision of the Court in AGET Iraklis, has a convincing rationale been given for either sense of the term ‘restriction’. B.  Absolute Restrictions: Which Labour Laws are Not Covered? In AGET Iraklis62 and Alemo Herron63 the principle applied to find in the employer’s favour runs something like this: mandatory labour legislation ­ amounts to an interference with the employer’s freedom of contract or freedom of enterprise; as such it constitutes a potential breach of Article 16 of the Charter; Article 16 must be taken into account in the interpretation of internal market law; national laws imposing compulsory norms on employers must therefore be subjected to a proportionality test under internal market case law (AGET Iraklis) or struck down as an impermissible implementation of a Directive which is taken to have pre-emptive (ceiling-type) effects (Alemo Herron). If this is correct then as long as there is some transnational element to the decision, every form of domestic labour law which is anything more than a ‘default rule’ and hence more than merely optional for an employer, is subject to challenge. We might reasonably infer from the structure of EU law and the place of social policy within it that this cannot (or should not) be the case. Social policy is, in principle, a shared competence, so we might imagine that this would leave some discretion to Member States in framing their own labour law rules. In addition, the European Union is stated to be a ‘highly competitive social market economy’,64 a complex concept but one which, by virtue of the reference to the social market, may plausibly be understood to mean that the removal of protective regulation from the labour market is not one of the goals of EU law.65 So there must be some limit to the power of courts to review national labour laws under internal market law. What is it? In AGET Iraklis Advocate General Wahl began from a premise that sounds uncontroversial enough: ‘the concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder trade within the European Union’.66 A law requiring prior administrative

62 Case C-201/15, Judgment of 21 December 2016. 63 Case C-426/11, Alemo-Herron v Parkwood Leisure Services Ltd, Judgment of 18 July 2013. 64 Art 3(3) TEU. 65 Joerges (n 2); Joerges and Rödl (n 10); De Witte (n 10); D Damjanovic, ‘The EU Market Rules as Social Market Rules: Why the EU can be a Social Market Economy’ (2013) 50 Common Market Law Review 1685–718. Here, account should be taken of changes made to the institutional framework of EU law by the Treaty of Lisbon, including the reference to (non-economic) values in Arts 2 and 3(1) TFEU and in the Preamble to the TEU. See F Dorssemont, ‘Values and Objectives’ in Bruun, Lörcher and Schömann (n 6). 66 AGET Iraklis, Opinion, para 46.

66  Simon Deakin a­ uthorisation for collective redundancies was such a restriction, according to the Advocate General, because ‘unless the rule is complied with, those redundancies will be invalid’. Thus such a rule ‘directly interferes with the internal organisation of undertakings and with the management of their staff, possibly exposing undertakings to the risk of operating at a loss’.67 Then Article 16 was invoked. The freedom to conduct a business under ­Article 16 ‘encompasses (i) freedom to exercise an economic or commercial activity; (ii) freedom of contract; and (iii) free competition’. So the ‘restriction of the freedom of establishment’ already identified by the Advocate General was also ‘a restriction on the exercise of freedom to conduct a business’ as well as being a restriction of the ‘freedom of contract of employers, inasmuch as they are required to seek prior authorization before they may terminate employment contracts’.68 At no point did the Advocate General base his Opinion on an argument to the effect that a law requiring administrative approval crosses some kind of threshold which a law requiring an employer to consult worker representatives before undertaking dismissals does not pass. In what sense is a law on consultation any less of a ‘direct interference’ with the ‘internal organisation’ and ‘management’ of the undertaking? The Court’s reasoning was only slightly more expansive. The Court observed that freedom of establishment includes the freedom of an enterprise to set up a subsidiary in another Member State and to ‘take on’ workers there.69 The Court then reasoned that the freedom of such a subsidiary to hire workers must imply the freedom ‘to determine the nature and extent of the economic activity that will be carried out in the host Member State’ and hence ‘the number of workers required for that purpose’.70 A law requiring collective redundancies to be authorised was a law which called into question ‘the very ability of such an establishment to effect collective redundancies’ and as such is ‘a significant interference in certain freedoms which economic operators generally enjoy’.71 The freedoms which the Court considered protected by internal market law (Article 16 itself was not mentioned at this point) included the freedom of economic operators to enter into contracts with workers in order to be able to carry out their activities or the freedom, for their own reasons, to bring the activity of the establishment to an end, and their freedom to decide whether and 67 ibid, para 47. It may be noted that nowhere in his Opinion does the Advocate General refer to the strengthening of non-economic values and objectives achieved by the Lisbon Treaty (see n 60 above). 68 ibid, para 49. 69 AGET Iraklis, Judgment, para 52. 70 ibid, para 53. At this point no mention is made of the right to ‘protection in the event of unjustified dismissal’ under Art 30 CFREU, on which, see the chapter by Mélanie Schmitt in this book, nor other of relevant international legal standards, such as Art 6 of the International Covenant on Economic Social Rights and ILO Convention no 158 concerning Termination of Employment (1982), both of which might be relevant in this context by virtue of Art 53 CFREU (see the chapter by Klaus Lörcher in this book). 71 ibid, paras 54, 55.

In Search of the Social Constitution  67 when they should formulate plans for collective redundancies on the basis, in particular, of factors such a cessation or reduction of the activity of the undertaking or a decline in demand for the product they manufacture, or a result of new working arrangements within an undertaking unconnected with its level of activity.72

It was because the authorisation law was such as to render access to the Greek market less attractive and, following access to that market, to reduce considerably, or even eliminate, the ability of economic operators from other Member States who have chosen to set up in the new market to adjust subsequently their activity in that market or to give up, by parting, to that end, with the workers previously taken on

that it was ‘liable to constitute a serious obstacle to the exercise of freedom of establishment’.73 We have not yet got to the stage of the proportionality test. A law requiring administrative authorisation may be more protective than one requiring consultation; much depends on how the discretion granted in national authorities is framed by wider principles of public law and on how it is exercised in practice. The remedy of nullification may be more protective than that of compensation; again, it depends on the details, in particular the levels of compensation available for a failure to consult. But an authorisation law, since it requires the employer to obtain the permission of the labour inspectorate or ministry before proceeding with collective dismissals, gives the state authorities a potential veto right and hence a powerful mechanism to constrain the exercise of managerial prerogative. Thus, as we shall see shortly, an authorisation law is less likely to be regarded as proportionate than one imposing an obligation to consult. However, it would seem from the reasoning of the Advocate General and of the Court in AGET Iraklis that a consultation law would also be sufficiently protective to fall under the notion of an absolute restriction, and so require justification. This is because consultation laws also impose costs on employers; they are intended to slow down the process of dismissal, to allow time for reflection on the options open to the parties, and to enable a social plan or similar mechanism for determining selection criteria and levels of compensation to be drawn up and put into effect. In some jurisdictions, a failure to consult can lead to ­nullification.74 And this is ultimately true of all types of worker-­protective laws which operate as ius cogens: by their nature, laws setting mandatory labour standards in the areas of wages and working time, laws governing unfair dismissal, laws governing the taking of industrial action, and so on, require employers to internalise costs which would otherwise fall on workers. All these laws, by their very nature as labour laws, affect managerial prerogative; thus

72 ibid. 73 ibid, paras 56, 57. 74 For example in German law, by virtue of the need to consult the works council prior to d ­ ismissals (s 102, Betriebsverfassungsgesetz).

68  Simon Deakin they all, in p ­ rinciple, limit ‘freedom of contract’ and ‘freedom of enterprise’, and are likely to render market access ‘less attractive’ to employers. Thus, within the framework of internal market law as developed in AGET Iraklis, there is nothing to suggest that a very wide range of mandatory labour laws do not fall under the concept of an ‘absolute restriction’, requiring the Member State to justify the law in question.75 C.  Comparative Restrictions: Are Differences Always Distortions? The idea that a restriction arises by virtue of differences between the levels of worker protection operating in different Member States can be found in Laval. The essence of the employer’s argument in that case, according to Advocate General Mengozzi, was that ‘only Latvian legislation and collective agreements [should be] applicable to the posting’.76 Without quite saying so, he was adverting to the obvious basis for Laval’s comparative advantage and the reason, presumably, for its success in the tendering process, which is that it was paying its workers wages which were a small fraction of those which would have been payable had the local Swedish collective agreement been applied. In Rüffert the argument was spelled out more starkly. The referring court was concerned that overseas service providers ‘would lose the competitive advantage which they enjoy by reason of their lower wage costs’.77 It rejected an argument that Polish and German workers should receive equal pay for equal work on the grounds that the obligation to pay the collective agreed wage does not bring about actual equality [between Polish workers and] German workers but instead prevents [Polish workers] from being employed in Germany because their employer is unable to exploit his advantage in terms of labour costs.78

In his Opinion, Advocate General Bot reasoned that there was a restriction within the meaning of Article 49 EC (now Article 56 TFEU) as the German extension law imposed ‘on service providers established in another Member State where minimum rates of pay are lower an additional economic burden

75 By contrast, Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies is premised on the assumption that ‘The completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community’ and that this improvement ‘must cover, where necessary, the development of certain aspects of employment regulations such as procedures for collective redundancies and those regarding bankruptcies’ (recital 7). Another principle underlying this directive is that ‘greater protection should be afforded to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the Community’ (emphasis added) (recital 2). 76 Laval, Opinion, para 133. 77 See Rüffert, Opinion, para 41. 78 ibid, para 44.

In Search of the Social Constitution  69 that may prohibit, impede or render less attractive the provision of their services in the host state’.79 The Court took the same view on this point.80 This, then, is a somewhat different approach from that in AGET Iraklis. It is not the absolute degree of restriction which matters, but the difference in the level of protection between two Member States, the host State and the home State. If the laws of the home State are less protective than those of the host State, the imposition of the rules of the host State will amount to a restriction on the relevant freedom (services or establishment) since it will impose on the employer higher costs than those which would apply if it were able to operate under the conditions of the home State. In effect, the employer is presumptively entitled (subject to the proportionality test, to which we are coming next) to have the home State rules applied in its favour even while operating on the territory of the host State. This is, of course, completely contrary to goal of ‘upwards convergence’ in labour and social standards which was the Spaak Report thought would ensue from the operation of the internal market.81 An exhaustive search of the opinions and judgments in Laval and Rüffert will at no point reveal a limit to the principle that transnational differences in regulatory standards amount to a restriction under internal market law. Again, all mandatory labour laws require cost internalisation. Thus a difference in the level of the minimum wage or the duration of the working week, a difference in the substantive content of the meaning of unfair dismissal, a difference in the powers of a works council to veto or delay changes in the organisation of work, and so on, will all necessarily be ‘restrictions’. There is nothing in the concept of a ‘restriction’ to prevent the power of judicial review reaching into all aspects of labour regulation. So there is nothing, in principle, to prevent the least protective national labour law regime on any given point of law becoming the default point of reference for the application of internal market law. According to this jurisprudence, it is not even necessary for an enterprise to have a material connection with the law of the least protective Member State; if that State does not observe the ‘real seat principle’ in its company law, undertakings from across the Union will be free to incorporate there and so obtain the benefits of its low labour standards wherever they happen to be operating.82 This equation of ‘costs’ with ‘distortions’ of competition is, of course, precisely the ‘misunderstanding’ which the Spaak Report was trying to dispel.83

79 ibid, para 103. 80 Rüffert, Judgment, para 37. 81 See our discussion, above. 82 This is the result of the line of cases applying freedom of establishment the issue of transborder incorporations, beginning with Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR-I 1459. In Case C-106/16 Polbud, Judgment of 25 October 2017, the Court recognised that the ‘protection of workers’ could be an ‘overriding reason in the public interest’ justifying a law restricting freedom of establishment (at para 54), although it went on to hold against the national law in this case. 83 Spaak Report (n 53) at 60; see above.

70  Simon Deakin D.  The Limits of the Proportionality Test Does the search for ‘balance’ in the application of internal market law not inevitably bring us back to the concept of proportionality?84 To see why this is not a likely solution it is necessary to go no further than the Opinion of Advocate General Wahl in AGET Iraklis. The essence of the proportionality test is that the Court has to engage in a ‘balancing exercise’. Specifically, it has to balance the worker-protective goal of the legislation in question with the employer’s freedom of establishment. In the context of AGET Iraklis this task additionally involved balancing ‘the freedom to conduct a business enshrined in Article 16 of the Charter against other provisions contained in Title IV of the Charter (“Solidarity”)’.85 Yet, according to the Advocate General, not one of the worker-protective provisions of Title IV was relevant to the disposition of the case. Article 27, concerning workers’ rights to information and consultation, was too vague in and of itself to be taken into account in the balancing process. It ‘must be given more specific expression in EU law or national law… to be fully effective’.86 In so far as it received this specific expression in the form of Directive 98/59/EC, Article 27 was of no assistance in AGET Iraklis since the Directive stopped short of imposing a requirement of authorisation.87 The Advocate General dealt equally summarily with Article 30 of the Charter, governing termination of employment. This was of no assistance as it did not ‘guarantee a right to permanent employment’. In so far as Article 30 had to be read in the light of Article 24 ESC, it did not prevent dismissal on ‘economic grounds’. Thus Article 30 too was irrelevant.88 Even if the Advocate General might have had a point when he referred to the vague and programmatic nature of Articles 27 and 30 of the Charter, there would be a double standard in play here. The vague and programmatic nature of Article 16 of the Charter is much more obvious, as this Article does not even refer to the term ‘right’ (in contrast to Articles 27 and 30). Yet far from being a reason to discount its relevance to the circumstances of AGET Iraklis, this somehow became a reason, in the view of Advocate General Wahl, for giving it the widest reading possible as protecting the employer’s ‘freedom of contract’ and ‘freedom of enterprise’.89

84 Feenstra (n 39). 85 AGET Iraklis, Opinion, para 57. 86 ibid, para 58. 87 ibid. 88 ibid, para 59. 89 ibid, paras 64–65. The rejection of any relevance for the Charter may be contrasted with the specific invocation of Art 17(1) CFREU in Case C-8/15, P Ledra Advertising v Commission and ECB, Judgment of 20 September 2016, in the context of litigation to determine the legality of decisions taken during the restructuring of the Cypriot banking sector, and in Case C-258/14 Florescu v Casa

In Search of the Social Constitution  71 Having dealt with Articles 27 and 30, the Advocate General turned to a consideration of the interests which he considered to be at stake in the balancing test. It could not be right, he suggests, to set a threshold for justified dismissal which was ‘too high’ since to do so would be ‘to force an undertaking to put its restructuring plans on hold indefinitely, with the risk of remaining economically inefficient’.90 We are not told what ‘inefficiency’ means here beyond, possibly, decreasing the employer’s profits. At a later point in his Opinion, the Advocate General considered the argument that ‘conditions in the labour market’ might justify worker-protective regulation. He rejected this argument on the grounds that a rule which interfered with the employer’s right to dismiss workers would not have the effect of reducing unemployment. In the specific context of this case, the ‘economic inefficiency’ resulting from the refusal of authorisation would induce the employer to render itself insolvent, and so would ‘endanger the jobs of those workers who have not been made redundant’.91 But even if that were not enough, it would not be appropriate to ‘deny the employers’ right to terminate on an employment relationship on the ground that it is generally not desirable to have more unemployed persons’.92 This was because ‘the rule at issue merely gives the impression of being protective of workers’. It was not just that the workers would lose their jobs once the employer put itself into insolvency proceedings. There was a wider point at stake: ‘workers are best protected by an economic environment which favours stable employment’. And here, according to the Advocate General, it was important not to forget lessons of history: ‘historically speaking, the idea of artificially maintaining employment relationships, in spite of unsound general economic foundations, has been tested and has utterly failed in certain political systems of yesteryear’.93 Laws imposing an authorisation requirement for collective dismissals are presented, here, as the equivalent of laws of former state socialist systems which banned private ownership of the means of production. In applying the proportionality test, the Advocate General took upon himself the task of ascertaining the effects of the Greek law. He asserted that the law is ‘inefficient’ since, by imposing costs on employers, it would fail in its aim of safeguarding workers’ jobs. These statements, offered as if they were selfexplanatory, are in fact highly contentious. The Advocate General’s Opinion conflates private cost (the imposition of regulation on the employer) with social cost (the wider effects of the regulation on economic welfare, which may be

Judeţeană de Pensii Sibiu, Judgment of 13 June 2017, concerning the legality of changes to pension rights in Romania stemming from the Memorandum of Understanding of June 2009, although on their facts both claims failed. 90 ibid, para 61. 91 ibid, para 68. 92 ibid, para 69. 93 ibid, para 73.

72  Simon Deakin positive if there are high transaction costs).94 Moreover, empirical estimates of the effects of the law simply cannot be ascertained on the information available to the Advocate General.95 In competition cases, determinations of the effects of regulatory rules on market structure are made on the basis of economic assessments which require technical expertise and are not always clear cut. Such an assessment was, of course, not part of the Advocate General’s deliberations. The Court in AGET proceeded more cautiously but in the final analysis ended up in the same place as the Advocate General. The Court recognised that ‘the protection of workers’ and ‘considerations connected with the maintenance of employment’ could in principle be justifying factors (while rejecting ‘the promotion of the national economy’ as a factor).96 It acknowledged that, in the context of Article 16, ‘the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities that may limit the exercise of economic activity’,97 and that the authorisation rule, since it ‘does not have, in any way, the consequence of entirely excluding, by its very nature, the ability of undertakings to effect collective redundancies’, did not, in itself, ‘affect the essence of the freedom to conduct a business’.98 It also paid regard to ‘the discretion available to the Member States when pursuing their social policy’.99 However, it ruled the law to be incompatible with Article 49 since in the absence of details of the particular circumstances in which the power in question may be exercised, the employers concerned do not know in what specific objective circumstances that power may be applied, as the situations allowing its exercise are potentially numerous, undetermined and indeterminable and leave the authority concerned a broad discretion which is difficult to review.100

The Court’s approach is more subtle than that of the Advocate General, but is it really any better? In the final analysis the Court, no less than the Advocate General, is substituting its own judgment on complex issues of social and economic policy for that of the national authority. The Greek law set out the considerations which were to guide the administrative aspect of the authorisation decision, and also provided for review of that decision by the national courts. To say that the administrative power in question could be applied in ‘indeterminable’ circumstances is just another way of saying that the review body had a degree of discretion. There is nothing unusual about that in the context

94 RH Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1–44. 95 On the relevance of empirical analysis for exploring claims made concerning the negative economic effects of labour laws, see S Deakin, ‘Labor and Employment Laws’ in P Cane and H Kritzer (eds), The Oxford Handbook of Empirical Legal Studies (Oxford, OUP, 2010). 96 AGET Iraklis, Judgment, at paras 72–74. 97 ibid, at para 86. 98 ibid, at para 88. 99 ibid, at para 93. 100 ibid, at para 100.

In Search of the Social Constitution  73 being considered. Many European countries have had similar a­ uthorisation laws at points in the recent and not so recent past, as do many countries outside Europe.101 It is in the nature of these laws to supply a discretion of some kind to a labour inspectorate or ministry. These discretionary powers are generally subject (and were in the Greek case) to public law principles which are intended to prevent their arbitrary exercise. The Court simply ends up assigning to itself the power originally vested in the national authority, and doing so in a way which is not obviously less ‘indeterminable’. A possible way forward is the ‘double proportionality’ test associated with the opinion of Trstenjak AG in Commission v Germany.102 Under this approach, ‘fundamental rights’, meaning (in this context) the social rights associated with the Charter and with general principles of EU law, and ‘fundamental freedoms’, meaning the economic freedoms associated with internal market law, are put on an equal footing. The ‘equal status’103 of social rights and economic freedoms implies that the exercise of one may justify the imposition of a restriction on the other. In that case, a three-stage proportionality test needs to be applied, according to which the court must assess the appropriateness, necessity and reasonableness of the measure in question.104 This means that ‘the restriction by a fundamental right on a fundamental freedom is not permitted to go beyond what is appropriate, necessary and reasonable to realize that fundamental right’. Nor, conversely, may ‘the restriction of a fundamental right by a fundamental freedom go beyond what is appropriate, necessary and reasonable to realize the fundamental freedom’.105 This ‘double, symmetrical proportionality test’106 has been said to offer a way forward on the basis that it allows litigants to focus not just on the use of a social right to justify economic restrictions, but on ‘the restricting effects of the economic freedoms for the effective exercise and protection of social objectives/rights’.107 But there is equally a danger that it invites an infinite regress, ‘leading to “self-cancelling”’.108 Treating social rights and economic freedoms as

101 For details, see Z Adams, L Bishop and S Deakin, ‘CBR Labour Regulation Index (Dataset of 117 Countries)’ in J Armour, S Deakin and M Siems (eds), CBR Leximetric Datasets (Updated) https://doi.org/10.17863/CAM.9130 (Cambridge, University of Cambridge Data Repository, 2017), referring to country-level data for indicator no 22, ‘notification of dismissal’. 102 Case C-271/08, opinion of 14 April 2010. 103 ibid, at para 81. 104 ibid, at para 189. 105 ibid, at para 192. 106 Feenstra (n 39) 337. 107 ibid, at 336. 108 C Barnard, ‘Free Movement and Labour Rights: Squaring the Circle’ University of Cambridge Legal Studies Research Paper Series, Paper No 23/2013, August 2013, available at http://www.law. cam.ac.uk (accessed 12 January 2018), at 21, citing remarks made by Professor Mark Freedland at a seminar held in Cambridge on 27 April 2012.

74  Simon Deakin symmetrical does not do away with the need to decide which one prevails in the event of deadlock, and ‘the Treaty still contains a strong pull towards prioritizing the economic freedom’.109 The problem in AGET Iraklis, as in Viking, Laval and Rüffert, is not just with the way the proportionality test was applied; the deeper problem is with the way in which the test is framed by the initial characterisation of labour laws as ‘restrictive’. Because of this initial move, the proportionality test proceeds from an opposition between social ‘restrictions’ and economic ‘freedoms’ which, while taken for granted in the Court’s approach, is, as we have seen, highly questionable. It is not surprising that, from this skewed initial position, the results of applying the test so consistently favour ‘economic’ interests. Since Viking and Laval the test has turned out to be an open door for dogmatic assertions of universal economic ‘laws’ to enter into juridical reasoning. When this highly contestable economic veneer is stripped away, we can see that the Court is attempting to reconcile some very complex and diverse political interests. This is a task which it should have left to the interplay of democratic forces at national level. Does enshrining social rights in the Charter offer a way out? It could do, but so far has not. In AGET, as we have seen, Articles 27 and 30 did not change the outcome, any more than was the case with the ‘general principle’ of the right to strike in Viking and Laval. It is inherent in the proportionality test that Charter rights are one among many factors to be ‘weighed in the balance’. They may undo some of the skewing in favour of ‘economic’ interests which is inherent in the proportionality test, but, on the evidence so far, not by much.110 The social rights articulated in the Charter and in the ‘general principles’ of EU law need to come into play one stage back, at the point when a ‘restriction’ is identified. They need to be used to call into question the insistence that labour laws, because they protect workers, must thereby restrict competition. It is not a question of prioritising the social over the economic, or of somehow attributing more weight to the social within the ‘double proportionality test’. The way out of the Viking/Laval conundrum is to see that the ‘social’ and the ‘economic’ complement each other. This is another way of describing the indivisibility of

109 ibid. Other possible modifications of the proportionality test intended to address the Viking/ Laval ‘conundrum’ include devolving the substance of the decision on proportionality from the CJEU to national courts, and shifting the emphasis from substance to procedure, making it more straightforward for a Member State or, as the case may be, trade union, to show compliance with internal market law if it has taken steps to address the potential impact of the measure concerned on economic freedoms: ibid at 24–26. 110 On how far rights in the Charter can be horizontally applicable in so far as they underpin or overlap with general principles of EU law, see the discussion of Klaus Lörcher in this book, referring in particular to the decision of the Court in Case C-414/16 Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, Judgment of 17 April 2018.

In Search of the Social Constitution  75 social rights and economic freedoms which are expressed through the Charter in a single legal instrument.111 IV.  THE SOCIAL CONSTITUTION AND EMU

Beginning in 2013, the institutions of the Union began to contemplate a ‘social dimension’ to EMU. By April 2017 this process had produced the European Pillar of Social Rights,112 which was duly ratified by the Member States meeting in the Gothenburg ‘Social Summit’ of November 2017.113 The rationale of the Pillar, according to the Commission, is the idea that social policy can contribute to a ‘deeper and fairer’ EMU. Social policy, it is suggested, can help to improve the Union’s competitiveness as well as providing a more adequate floor of social protection. The Commission Communication published in March 2016 states that social policy ‘should be conceived as a productive factor, which reduces inequality, maximizes job creation and allows Europe’s human capital to thrive’. The language of ‘social policy as a productive factor’ was last used during the years of the Delors Presidency. The 2016 Communication argues for the economic contribution of social policy by pointing to ‘evidence on social and economic performance’; it suggests that the ‘best performing Member States in economic terms have developed more ambitious and efficient social policies, not just as a result of economic development, but as a central part of their growth model’.114 So this is certainly a very different approach from the description in internal market jurisprudence of labour law as a market ‘restriction’ or ‘distortion’. The legal nature of the Pillar is such that it will not immediately lead to any significant change in the relationship between social policy and the wider EMU process.115 Its legal form is that of a recommendation.116 The intention is that

111 It is relevant to note that Art 21(1) TEU refers to the ‘indivisibility of human rights’ albeit in the context of the EU’s external action. Recital 4 of the Council of Europe’s Revised European Social Charter also refers to the ‘indivisible nature of all human rights’. 112 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Launching a Consultation on a European Pillar of Social Rights (COM(2016) 127 final, Strasbourg, 8.3.2016); Commission Recommendation of 26.4.2017 on the European Pillar of Social Rights, Brussels, 26.4.2017, C(2017) 2600 final; Proposal for an Interinstitutional Proclamation on the European Pillar of Social Rights, Brussels, 20.10.2017, SOC 634 EMPL 482 EDUC 365 SAN 350 ECOFIN 816. 113 Social Summit for Fair Jobs and Growth, Gothenburg, 17 November 2017, http://www.socialsummit17.se/. On the Pillar, see the chapter by Antoine Jacobs in this book. 114 COM(2016) 127 final, para 2.1. 115 See the chapter by Antoine Jacobs in this book. 116 For further detail on the legal nature of the Pillar, see Z Rasnaca, ‘Bridging the Gaps or Falling Short? The European Pillar of Social Rights and what it can bring to EU-level Policymaking’ ETUI Working Paper 2017.05 (2017).

76  Simon Deakin it should be implemented: ‘delivering on the European Pillar of Social Rights is a shared commitment and responsibility between the Union, its Member States and the social partners’. Measures should be put in place ‘taking due account of different socio-economic environments and the diversity of national systems, including the role of social partners, and in accordance with the principles of subsidiarity and proportionality’.117 In form the Pillar is a restatement of the social ‘rights and principles’ covering labour and social security laws of the kinds found in the domestic labour law systems of most of the Member States. It is not clear why some rights and principles were included but not others. Chapter II of the Pillar, which mostly pertains to labour law, contains provisions on ‘secure and adaptable employment’, ‘wages’, ‘information about employment conditions and protections in case of dismissals’, ‘social dialogue and involvement of workers’, ‘work life balance’, ‘healthy, safe and well-adapted work environment’ and ‘data protection’. It makes reference to minimum wages, the right to written information on terms and conditions of employment, the length of probation or qualifying periods, notice prior to dismissal, procedural fairness at work, and social dialogue. There are some significant gaps. There is no reference to freedom of association and no clear commitment to the encouragement of sector-level collective bargaining. The Pillar’s provisions on termination of employment contain no reference to the substantive content of the unfair dismissal principle (although there is a reference to procedural fairness in the form of a right to ‘effective and impartial dispute resolution’). There is no reference to a right to reinstatement or reengagement, only to compensation for unfair dismissal. The Pillar does not map straightforwardly on to existing social acquis. Not all the rights set out in the Charter find a parallel provision in the Pillar; thus the Pillar has no equivalent to the right to strike set out in Article 28. On the other hand, the Pillar does refer to the minimum wage: workers are to ‘have the right to fair wages that provide for a decent standard of living’, and ‘adequate minimum wages shall be ensured in such a way that provides for the satisfaction of the needs of the worker and his/her family, whilst safeguarding access to employment and incentives to seek work’ while preventing ‘in-work poverty’. There is no right to the minimum wage in the Charter, and the issue of the minimum wage is outside the scope of the competences conferred on the Union in the SPT. Thus it is unclear exactly how progress is to be made towards instituting a transnational minimum wage. One possibility is that the Pillar will provide a nudge for transnational collective bargaining on this issue. Another is that there will be encouragement for minimum wage through the European Semester process: according to Commission documentation accompanying the Pillar,

117 European Pillar of Social Rights, Recital (17). The reference to ‘different socio-economic environments and the diversity of national systems’ appeared at a late stage in the drafting process.

In Search of the Social Constitution  77 greater attention should be paid to ‘social considerations in the ­European Semester of economic policy coordination’, ‘the use of social indicators’ in the macroeconomic imbalances procedure, and ‘the promotion of social ­benchmarking’.118 How exactly then does the Pillar link to the wider process of EMU? The problem here is that the adoption of the Pillar will, on the face of it, make no difference whatever to the embedding of austerity in the Memoranda of Understanding (‘MoUs’ agreed by the Troika and the debtor states. Nor does it seem to open up any possibility for embedding respect for Charter rights in the implementation of the Memoranda. The Court has declined on several occasions to review the MoUs (or, to be more precise, related Commission and Council decisions) on the grounds of their incompatibility with the Charter.119 Yet in Pringle120 and Gauweiler121 it insisted on the need to maintain ‘conditionality’ in social policy as the precondition for greater flexibility in monetary policy. There simply is no rebalancing of monetary and social policy, and no pretence of neutrality between them. The mask slipped completely in AGET Iraklis, with Advocate General Wahl citing the social policy conditions attached to Greece’s receipt of financial assistance as a further basis for invalidating its authorisation law.122 For the Pillar to play a role in the rebalancing of social and economic priorities within the wider process of EMU, there should be a clearer recognition that the ‘rights and principles’ which it purports to restate are not simply instruments to be deployed to meet the goals of EMU, but also fundamental social rights with juridical significance, which are capable of qualifying economic and monetary policy concerns. As we have seen, the Pillar does not precisely map on to the rights contained in the Solidarity Title of the Charter; in some instances, as in the case of the minimum wage, it goes further than the ­Charter; in others, as in the case of the right to strike, it is apparently less extensive. This need not prevent Charter rights being invoked to encourage an expansive reading of the Pillar in areas of overlap. More generally, consistently with the typology proposed by Jääskinen, the presence of the Charter within the Union’s

118 COM(2016) 127 final, para 2.4. 119 Case C-128/12, Sindicato dos Bancários do Norte, Order of 7 March 2013; Case C-264/12, Sindacato Nacional dos Profeissionais de Seguro v Fidelidade Mundial, Order of 26 June 2014. By contrast, the Court gave substantive consideration to the relevance of Art 17(1) CFREU (the right to own lawfully acquired possessions) in Case C-8/15, P Ledra Advertising v Commission and ECB, Judgment of 20 September 2016, concerning measures taken in the course of the restructuring of the Cypriot banking sector (while nevertheless ruling that the measures did not constitute a disproportionate and intolerable interference impairing the very substance of the depositors’ right to property’ (para 74)). 120 Case C-370/12 Pringle v Government of Ireland, Judgment of 27 November 2012. 121 Case C-62/14 Gauweiler, Judgment of 15 June 2015. See also the Judgment of the Bundesverfassungsgericht (BVerfG – Federal Constitutional Court), Case No 2 BvR 2728/13, 14 January 2014. 122 AGET Iraklis, Opinion, at para 80.

78  Simon Deakin legal order can be seen having a number of other consequences for the interpretation of the Charter. For example, it could be read as confirming the relevance to the interpretation of the Pillar of the principles of minimum harmonisation and non-regression.123 V.  LEVELS OF GOVERNANCE: THE ROLE OF TRANSNATIONAL SOCIAL RIGHTS IN FRAMING NATIONAL-LEVEL LEGISLATION

All systems of multi-level governance, from federal states to transnational regulatory regimes such as those of the WTO and ILO, need a functional understanding of the relationship between different levels of rule-making. There are only a finite number of possible models. One is minimum-standards harmonisation, which is the approach taken by the ILO to compliance with its conventions.124 According to this approach, a state party ratifying an international standard must comply with the basic level of labour protection which it sets out (for example, by reference to a maximum working week) but is at liberty to exceed that standard, that is, to adopt a measure which is more protective of workers (as it would do if it adopted a lower hours threshold for the working week). This was also, until recently, the widely understood and applied approach to the interpretation of Directives adopted under the SPT, most of which are explicit that this is the intended mode of their implementation.125 The second approach is preemption. This is found in parts of US law, where its effect is that the relevant federal statute occupies the field to the exclusion of state or city laws. The National Labor Relations Act, which governs the negotiation rights of trade unions with the status of certified bargaining agents, is a law of this kind. Not all US labour statutes have this feature; the Fair Labor Standards Act, which provides for minimum wages and a maximum working week, does not preempt state or city laws to the same extent.126 Human rights are generally understood as setting minimum standards of protection. Thus it is not normal for a law to be struck down on the grounds that it provides for too high a level of protection for freedom of expression or the right to family life, for example. In general, it is highly unusual to find an international human rights instrument which is given a preemptive interpretation.

123 See Jääskinen (n 10) 1710, discussing the ‘non-regression effect’ of fundamental social rights. 124 ILO Constitution, Art 19(8): ‘In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement, which ensures more favourable conditions to the workers concerned than those provided for the in the Convention or Recommendation’. 125 Deakin (n 32). 126 For discussion of the relevant US pre-emption rules in the context of evolution of the EU’s approach, see S. Deakin (n 45).

In Search of the Social Constitution  79 Beginning with Laval the Court has developed an approach to the implementation of labour law directives which increasingly sees them as preemptive. In Laval the Court read the Directive on the Posting of Workers as a ceiling of rights: it required the host state to apply certain labour laws to the position of posted workers, but limited the imposition of standards which were more protective, on the grounds that this would be a ‘restriction’ of the freedom to provide cross-border services.127 In Luxembourg the Court heard an argument that the host state should be free to apply labour standards which were consistent with obligations contained in international legal instruments such as relevant ILO Conventions and the provisions of the European Social Charter. The Court responded by allowing host states the smallest possible room for manoeuvre beyond the provisions of the Directive, permitting them to legislation above the floor or rights contained in the Directive only in relation to extreme human rights breaches.128 The reach of this emerging doctrine was taken further in Alemo-Herron.129 Here the Court gave the Acquired Rights Directive a preemptive reading, ruling that the United Kingdom was not able to put in place a law which was more protective of employee rights than the Directive allowed for.130 One of the justifications given for this ruling was the role played by Article 16 of the Charter in protecting the freedom of enterprise of employers.131 The implication is that national laws which go beyond the protections implied by the provisions of Title IV of the Charter can be struck down where they can be seen as interfering with internal market law or with Article 16. This approach threatens to turn EU social policy into a rigid framework of control, further limiting the autonomy of the Member States in the labour field. It is not compatible with the principle that social policy is competence shared between the Union and the Member States. Nor can it be reconciled with the principle that international labour rights do not detract from more favourable provisions set out in national legislation or in collective agreements or arbitral awards.132 More generally, it would stymie experimentation on social policy across the Union as a whole, producing a less diverse ‘regulatory ecology’. It would seem essential, then, to clarify the scope of this emerging principle before it becomes locked into the jurisprudence of the Charter. There should be a reassertion of the view that human rights confer minimum, not ­maximum, 127 Laval, Judgment, at para 80. 128 ‘The classification of national provisions by a Member State as public‑order legislation applies to national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State’: Luxembourg, at para 29. 129 Case C-426/11, Alemo-Herron v Parkwood Leisure Ltd, Judgment of 18 July 2013. 130 ibid, at para 36. 131 ibid, at para 33. 132 Art 19(8) ILO Constitution; Art 5(2) ICESR; Art 32 RESC; Art 153(2)(b) TFEU (inheriting the wording of Art 117 EEC).

80  Simon Deakin protections, and a rejection of any suggestion that they should be used to preempt state laws which touch, however indirectly, on freedom of contract or freedom of enterprise. VI. CONCLUSIONS

The vastly expanding ‘economic constitution’ of the EU is reaching ever further into areas previously thought of as lying within labour law’s autonomous sphere of operation. The social rights contained mostly in Title IV of the Charter have not so far proved to be an effective countervailing force. The impact on the Charter’s social provisions on the management of the sovereign debt crisis has been negligible and the Court has declined several invitations to use them to call into question the MoUs agreed between the Troika and states receiving financial assistance. Nor have Charter rights been effective so far in pushing back against the Court’s internal market jurisprudence. The Court’s narrow and confining interpretation of social rights is in marked contrast to its broad reading of ­Article 16 of the Charter, which has been read as conferring a general protection for ‘freedom of enterprise’. Some argue that a more finely calibrated version of the proportionality test might provide a way of saving national-level labour laws from the corroding effects of internal market law and Article 16.133 However, the logic of the proportionality test is inevitably skewed once labour market regulations are described as ‘restrictions’. It has been argued here that doctrinal attention should be focused one stage back in the analysis, at the point where ‘restrictions’ and ‘distortions’ of competition are defined. It has been suggested in this chapter that the current definition of a ‘restriction’ is not simply too broad; it is also unprincipled. It relies on a dogmatic assertion of the supposed economic effects of labour law which, while purporting to be neutral between the interests of employers and workers, is often little more than a smokescreen for the claims of capital. A different understanding of the relationship between ‘social’ and ‘economic’ rights would see labour laws as one of the constitutive elements of the labour market, and would view social protection as complementing sustainable economic growth. Such a view would also be consistent with the idea, found in international human rights law, of the indivisibility of social and civil rights. In this perspective, social rights and policies do not inevitably ‘restrict’ the internal market, nor do they undermine the wider project of EMU; on the contrary, they are mostly complementary to these processes of market construction. This reading of the ‘social’, it is suggested, can be used to inform the interpretation of the Charter, and, by those means, to begin the much needed recalibration of social, economic and monetary policies.

133 Feenstra

(n 39); Barnard (n 108).

5 The Concept of the ‘Employment Relation’ JOANNA UNTERSCHÜTZ

I. INTRODUCTION

T

he employment relation is fundamental to labour law. In simple terms it refers to the link between the worker and the enterprise or business (or an establishment thereof) that employs him or her.1 The traditional instantiation of this relation, which reached its peak in the mid-twentieth century, was based on personal subordination, continuity, fixed working time and ­bilaterality.2 With the advent of deindustrialisation, this approach came increasingly under pressure, as the service sector came to the fore, coupled with profound changes in working practices in many sectors from the mid-1970s: employers started to resort more and more to subcontractors and temporary agency workers, while at the same time transforming the employment model of their ‘regular’ workers. They began to emphasise ‘flexibility’ and versatility rather than stability and longevity.3 This was a first step in the development and diffusion of a wide variety of non-standard forms of employment, such as part-time work, fixed-term employment and contract work, which has been supplemented more recently by, for example, work sharing, job sharing, interim management, casual work, voucher-based work, portfolio work, collaborative employment and, last but not least, ICT-based work, crowd working and the gig economy.4 Not only has the physical distance between employers and workers 1 CJEU, 7 February 1985, C-186/83, Botzen and others, para 15. 2 N Countouris, The Changing Role of the Employment Relationship. Comparative Analyses in the European Context (Hampshire, Ashgate, 2007) 40. 3 KVW Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace (Cambridge, Cambridge University Press, 2004) 68; Countouris (n 2) 41. 4 Eurofound, New Forms of Employment (Luxembourg, Publications Office of the European Union, 2015) 1–2. See also M Koch, ‘Employment Standards in Transition: from Fordism to Finance Driven Capitalism’ in M Koch and M Frits (eds), Non-standard Employment in Europe: P ­ aradigms, Prevalence and Policy Responses (Basingstoke, Palgrave Macmillan, 2013) 35; B Bercusson, European Labour Law 2nd edn (Cambridge, Cambridge University Press, 2009) 362.

82  Joanna Unterschütz increased – above all in the case of teleworking – but the managerial distance typical of subcontracting chains has been increasingly able to mask the authority structure governing the employment relationship.5 Relations between the parties to the employment relationship are also more complex in triangular relationships, such as employment via temporary work agencies6 or voucherbased work understood as ‘a form of employment where an employer acquires a voucher from a third party (generally a governmental authority) to be used as payment for a service from a worker, rather than cash’.7 This work is often performed on the basis of fixed-term contracts or connected to specific projects. Sometimes voucher workers and employers interact without intermediary organisations, but in some countries (such as Belgium and France) intermediary organisations handle recruitment and administration.8 In the Staff Working Document ‘Key economic, employment and social trends behind a European Pillar of Social Rights’ the European Commission acknowledges that the distinction between ‘worker’ and ‘self-employed’, and between ‘self-employed’ and ‘entrepreneur’ is sometimes blurred. The case of the so-called ‘collaborative economy’ is particularly illustrative as it is based on a business model that involves individuals using their own assets, such as cars or houses, while the companies driving activities in the sector provide ‘tasks’ rather than fully-fledged services, making it hard to account for work and workers within the traditional conceptual framework.9 The digital economy is growing at breakneck speed throughout the economy: retail and transportation, health care and education and even personal relationships on social media.10 It is also contributing to increased flexibility in employment and even, as Degryse puts it, ‘developing a parallel labour market’.11 ‘Digital work’ is a broad term that covers a wide range of circumstances, including merely the use of digital devices by workers. In its recent typology of new forms of labour Eurofound

5 Countouris (n 2) 59. 6 Studies indicate a rising trend in the number of temporary workers and temporary agency workers in most EU Member States; the current EU average with regard to such workers is 1.5 per cent of total employment. See: Precarious Employment in Europe: Patterns, Trends and Policy Strategies, Part I, Patterns, Trends and Policy Strategies in Europe, Study for the EMPL Committee, 2016 110, http:// www.europarl.europa.eu/RegData/etudes/STUD/2016/587285/IPOL_STU(2016)587285_EN.pd; N Countouris, S Deakin, M Freedland, A Koukiadaki, J Prassl, Report on Temporary Employment Agencies and Temporary Agency Work (Geneva, International Labour Office, 2016) 23, http:// www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---ed_dialogue_msu/documents/publication/ wcms_541655.pdf. 7 Eurofound (n 4) 82. 8 ibid, 83. 9 SWD (2016) 51, 32. 10 OECD, OECD Digital Economy Outlook 2015 (Paris, OECD Publishing, 2015) 16. http:// dx.doi.org/10.1787/9789264232440-en; See also: OECD, Measuring the Digital Economy: A New Perspective (OECD Publishing, 2014), http://dx.doi.org/10.1787/9789264221796-en. 11 C Degryse, Digitalisation of the Economy and its Impact on Labour Markets (Brussels, ETUI, 2016) 35.

The Concept of the ‘Employment Relation’  83 applies such terms as ‘ICT-based work’,12 crowdwork13 and ‘work on-demand via apps’.14 Platforms and apps differ in various ways, including their roles in connecting workers and clients, adjudicating tasks, the extent to which they exercise control over the work performed and the ways they establish the terms on which services are performed, including payment.15 One common feature they share is enormous flexibility for the platform’s clients, one of the downsides of which is the commodification of labour and an approach based on providing ‘humans-as-a-service’. Regardless of the form of employment, the key figures in the employment relationship remain the worker and the employer. In the rest of this chapter we shall concentrate on notions that are crucial for understanding the personal scope of the articles of the Charter commented on in this volume, while detailed analysis of the personal scope of each article will be presented elsewhere in the book. The Charter applies a range of terms to describe various degrees of scope: ‘everyone’ (as eg in Articles 7, 12 and 20) or ‘no one’ (Article 5); ‘every citizen’ (Article 15.2) and ‘every worker’ (Articles 30 and 31); ‘workers or their representatives’ (Article 27) or ‘workers and employers or their respective organisations’ (Article 28). The aim of this chapter is to define the notions of worker and employer. However, this will not always coincide with the personal scope of particular articles presented in detail in the second part of the book. The starting point will be the notions of worker and self-employed as developed by the CJEU, but as the Charter also draws on other international legal sources, the wider context should not be forgotten. II.  THE WORKER

A.  The Worker The personal scope of some of the articles in the ‘Solidarity’ chapter was implied to be ‘every worker’ or ‘workers’. Unlike the notion of EU citizenship, there 12 ibid, 73. 13 GD Saxton, O Oh, R Kishore, Rules of Crowdsourcing: Models, Issues, and Systems of Control (Information Systems Management, 2013) 30:1, 3 http://dx.doi.org/10.1080/10580530.2013.739883. 14 The taxonomy of digital work is part of an ongoing debate among scholars. MA Cherry, ‘A Taxonomy of Virtual Work’ (2010) Georgia Law Review, https://ssrn.com/abstract=1649055, 9. The wider term ‘virtual work’ used by MA Cherry also includes work in virtual worlds and ‘gold farming’. The most researched subjects include Amazon’s ‘Mechanical Turk’ (AMT) and Uber. See also LC Irani, M Six Silberman, ‘Turkopticon: Interrupting Worker Invisibility in Amazon’s Mechanical Turk’, Annual conference; 31st, Human factors in computing systems; 2013; Paris (CHI – CONFERENCE 2013)Vol. 1, https://escholarship.org/uc/item/10c125z3 (accessed 21 March 2017); OECD (n 10) 144–60; J Prassl and M Risak, ‘Uber, Taskrabbit, and Co.: Platforms as Employers? Rethinking the Legal Analysis of Crowdwork’ in K Ahlberg and N Bruun (eds), The New Foundations of Labour Law (Frankfurt am Main, Peter Lang, 2017); A Aloisi, ‘Commoditized Workers. Case Study Research on Labour Law Issues Arising from a Set of On-Demand/Gig Economy Platforms’ (2016) 37(3) Comparative Labor Law & Policy Journal, http://dx.doi.org/10.2139/ssrn.2637485. 15 J Prassl, Humans as a Service: The Promise and Perils of Work in the Gig Economy (Oxford, Oxford University Press, 2018) 5.

84  Joanna Unterschütz is no universal concept of ‘worker’ covering all spheres of social legislation. Moreover, such legal terms as ‘employee’, ‘worker’ and ‘self-employed’ overlap. An employee always has the status of a worker subordinated to an employer’s authority, while a self-employed person, depending on the character of their relationship with the person or entity benefitting from their service, is classified in one of two categories: dependent or independent self-employed.16 The Charter, by referring to international law, allows for a broad interpretation of the term, traversing not only national definitions, but also the EU notion of worker in order to cover various new forms of employment and self-employment. The legal concept of worker at the EU level was developed initially within the context of the common market and freedom of movement of workers (Article 45 TFEU), the self-employed (Article 49 TFEU) and service providers (Article 56 TFEU).17 Until the enlargement of the European Union in 2004, the Court of Justice of the EU (CJEU) considered that the abovementioned rights can be enjoyed by persons with the legal status of worker in light of the national labour law of the Member States.18 The notion of worker in EU law is not unified. First of all, while a number of Treaty provisions refer to or use the term ‘worker’19 there is no explicit indication in respect of its meaning. Similarly, the Charter also refers to ‘work’ (eg Articles 15, 23, 32), ‘worker’ (Articles 27, 28, 30, 31) and ‘working conditions’ (eg Article 15.3, 31) without defining the terms.20 Differences in the definition of worker are especially striking when comparing notions of ‘worker’ on the ground of Treaty norms connected to free movement.21 Its understanding in the context of Article 48 of the EC Treaty and Regulation No 492/2011 does not necessarily coincide with the definition applied in relation to Article 51 of the EC Treaty and Regulation No 883/2004: in the latter case the concept is much broader and covers any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants.22 The rights are acquired on the basis of citizenship; however, a person can be covered by the social security coordination system even 16 C Barnard, EU Employment Law (Oxford, Oxford University Press, 2012) 148. 17 Bercusson (n 4) 370; AM Świątkowski, Prawo pracy Unii Europejskiej (Warszawa, CH Beck, 2015) r 3 2. 18 Świątkowski (n 17) 3; CJEU, 14 July 1976, C-13/76, Donà v Mantero, para 8; CJEU, 20 ­November 2001, C-415/93, Union royale belge de société de football association and others v Bosman and others; CJEU, 20 November 2001, C-268/99, Jany and others, para 7. 19 Especially as far as ‘free movement of workers’ (Arts 45–48 TFEU) and equal pay (Art 157 and Art 153 TFEU) are concerned. 20 The Explanations to Arts 15 and 31 of the Charter suggest that the expression ‘working conditions’ is to be understood within the meaning of Art 156 TFEU; given that the term is not defined, it should not be interpreted in a restrictive way. 21 M Tomaszewska, Prawo integracji stosunku pracy. Między jednorodnością a różnorodnością (Gdańsk, Wydawnictwo UG, 2011) 282–83. See also: CJEU, 12 May 1998, C-85/96, Martínez Sala v Freistaat Bayern, para 32. 22 CJEU, 31 May 1979, C-182/78, Pierik II, para 2.

The Concept of the ‘Employment Relation’  85 when no longer possessing the nationality of a Member State of the EU when applying for social security benefits.23 Similarly, a person does not cease to be regarded as a worker because of the short term of their employment, the sui generis nature of employment in national law, low productivity, the low level of remuneration or even the subsidised character thereof.24 In other areas, such as equal treatment, both categories of workers (­employees and self-employed) are covered.25 It seems that with Directives 2000/43 EC and 2000/78/EC the EU is emphasising the fundamental rights dimension of anti-discrimination instruments. Also, the CJEU tends to apply a wide ‘European’ concept of worker when interpreting the term as contained in Article 157 TFEU (formerly 141 TEU). In Allonby the Court admits that the term ‘worker’ has a European meaning and cannot be interpreted restrictively.26 The principle of equal treatment must take precedence over any economic rationale of national provisions, even if avoidance of such discrimination would involve increased costs.27 The scope of the equal treatment directives also cover other forms of atypical employment, especially on-call workers or those on zero-hours contracts.28 Even when the European legislation on equal treatment refers to national legislation (as in Article 2a Directive 92/85), the term should be given a European meaning.29 In other sources of EU secondary law different solutions are adopted. One is to omit all reference to the categories of worker and employee (eg Directive 98/59/EC). Directive 2002/15/EC refers to the (broad) category of ‘persons performing mobile road transport activities’, which covers mobile workers, as well as self-employed drivers.30 However, some secondary instruments regulating working conditions apply such terms as ‘employee’ or ‘contract of employment or employment relationship’ and refer to national law. Article 2(2) Directive 2001/23 refers to the definition of contract of employment or employment relationship, but also excludes some forms of casual or atypical work (see Article 2(2) a–c). A similar approach can be found in Directive 2008/94/ EC, while Directive 2009/38/EC applies the term ‘employees’ without further defining this term. In the domain of health and safety the Framework Directive 89/391/EEC provides its own definition of worker: ‘any person employed by an

23 CJEU, 12 October 1978, C-10/78, Tayeb Belbouab v Bundesknappschaft. 24 CJEU, 31 May 1989, C-344/87, Bettray v Staatssecretaris van Justitie. 25 Art 2 Council Directive 86/613/EEC; Art 3.1a Council Directive 2000/78/EC; Art 3.1a Council Directive 2000/43/EC. 26 CJEU, 13 January 2004, C-256/01, Allonby, paras 65, 70, 71. 27 CJEU, 17 June 1998, C-243/95, Hill and Stapleton v The Revenue Commissioners and ­Department of Finance, para 37; Tomaszewska (n 21) 292. 28 CJEU, 12 October 2004, C-313/02, Wippel, para 40. Countouris (n 2) 184. 29 CJEU, 20 September 2007, C-116/06, Kiiski, paras 24, 38–42. 30 CJEU, 9 September 2004, C-184/02 and C-223/02, Spain and Finland v Parliament and Council, consideration no 65.

86  Joanna Unterschütz employer, including trainees and apprentices but excluding domestic servants’.31 The majority of specific Directives apply the term ‘worker’.32 In other regulations, the EU legislator indicates an employment contract or relationship defined by law, by collective agreement or based on practices in force in a Member State (Directive 97/81/EC, and Directive 99/70/EC), which leads to the conclusion that employment relations could be based on other forms of contract or other relations, such as those of civil servants. At the same time, as long ago as the judgment in Case 75/63 Unger the European Court of Justice begun to establish a ‘Community meaning’ for the term ‘worker’.33 Over 20 years later in Lawrie-Blum34 the Court explained that the term ‘worker’ in Article 48 may not be interpreted differently according to the law of each Member State, but has a Community meaning. The underlying reason for constructing the autonomous definition was to ensure freedom of movement for workers, which constitutes one of the fundamental principles of the Community. Article 45(4) TFEU provides that the principles of free movement of workers and non-discrimination on the ground of nationality do not apply in the public service,35 but civil servants without doubt are also classified as workers entitled to employment rights.36 For example, the CJEU confirmed in Sotgiu that public service workers must not be discriminated against regardless of ‘whether a worker is engaged as a workman (ouvrier), a clerk (employé) or an official (fonctionnaire) or even whether the terms on which he is employed come under public or private law’.37 This also applies to EU civil servants, whose employment is governed by the Staff Regulations.38 Also, the Lawrie-Blum judgment

31 The situation of ‘domestic servants’ is a problem in its own right beyond the definition of worker analysed in this chapter. Domestic workers are often excluded from the protection of labour laws or are treated less favourably than other wage workers. The ILO has adopted the Domestic Workers Convention, 2011 (No 189) and its supplementing Recommendation (No 201). According to the ILO the domestic work sector absorbs significant numbers of workers, many of whom belong to the poorest segments of society with little access to other work or employment. Domestic work is performed to a large extent by migrant workers, mainly women, and is entrenched in the informal economy. See: ILO, ‘Effective protection for domestic workers: a guide to designing labour laws’ (Geneva, ILO, 2012) http://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/effective_protection_for_domestic_workers_a_guide_to_designing_labour_laws_0.pdf. 32 M Risak and T Dullinger, The Concept of ‘Worker’ in EU Law. Status Quo and Potential for Changes (Brussels, ETUI, 2018) (manuscript 23–24). 33 CJEU, 19 March 1963, C-75/63, Unger v Bedrijfsvereniging voor Detailhandel en Ambachten, para 1 of the operative part. 34 CJEU, 3 July 1986, C-66/85, Lawrie-Blum v Land Baden-Württemberg, para 16. 35 Countouris (n 2) 178. 36 See, eg CJEU, 3 December 1987, C-192/85, Newstead v Department of Transport; CJEU, 29 November 2001, C-366/99, Griesmar. 37 CJEU, 12 February 1974, C- 152-73, Sotgiu v Deutsche Bundespost, paras 4–5. 38 Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community (OJ P 045, 14 June 1962, 1385); See also: CST, J26 October 2006, F-1/05, Landgren v ETF; CST, 9 December 2008, F-52/05, Q/Commission; CST, 7 July 2009, F-54/08,

The Concept of the ‘Employment Relation’  87 clarified that civil servants are in principle to be considered ‘workers’ (with exceptions, such as Article 45(4) TFEU). Otherwise the Community rules on freedom of movement for workers would be frustrated, as the meaning of those terms could be fixed and modified unilaterally, without any control by the Community institutions, by national laws which would thus be able to exclude at will certain categories of persons from the benefit of the Treaty.39

The autonomous nature of the definition of ‘worker in’ EU labour law was explicitly formulated by the CJEU in Union Syndicale Solidaires Isère: ‘the essential feature of an employment relationship … is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.40 This means that the EU concept of ‘worker’ does not necessarily match legal descriptions found in the legislation of many Member States.41 Instead, currently the Court applies following criteria and indicators:42 (i) genuine economic activity; (ii) remuneration; and (iii) subordination of worker. i.  Genuine Economic Activity This is in contrast to activities conducted on such a small scale as to be regarded as purely marginal and ancillary.43 Diverse activities taken into consideration by the CJEU include sport, such as professional or semi-professional footballers, as well as football trainers,44 basketball players,45 prostitutes46 or apprentices.47 This also includes various atypical forms of work, such as part-time work48 or on-call work,49 as long as the activities performed are genuine. Also the fact that Bernard v Europol; CST, 17 February 2009, F-51/08, Stols v Council; CST, 11 February 2009, F-7/08, Schönberger v Parliament; CST, 21 May 2014, T-368/12 P, Commission v Macchia; GC (AC), 21 May 2014; GT (AC), 26 February 2016, T-241/14 P, Bodson and Others v EIB. 39 CJEU, 23 March 1982, C-53/81, Levin v Staatssecretaris van Justitie, para 11. 40 CJEU, 14 October 2010, C-428/09, Union Syndicale Solidaires Isère, para 28. See also CJEU, 1 October 2015, C-432/14 O, para 22. 41 CJEU, 11 November 2010, C-232/09, Danosa, para 9, 40. 42 Lawrie-Blum, para 16 and 17; CJEU, 13 April 2000, C-176/96, Lehtonen and Castors Braine, para 45; CJEU, 23 March 2004, C-138/02, Collins, para 26; CJEU, 7 September 2004, C-456/02, Trojani, para 15; CJEU, 26 April 2007, C-392/05, Alevizos, para 67; CJEU, 20 September 2007, C-116/06, Kiiski, para 25; CJEU, 10 September 2014, C-270/13, Haralambidis, para 29. 43 Levin v Staatssecretaris van Justitie, para 17; Haralambidis, para 28; CJEU, 8 June 1999, C-337/97, Meeusen, para 13. 44 CJEU, 15 December 1995, C-415/93, Union royale belge des sociétés de football association and others v Bosman and others; CJEU, 8 May 2003, C-438/00, Deutscher Handballbund; CJEU, 12 April 2005, C-265/03, Simutenkov; CJEU 16 March 2010, C-325/08, Olympique Lyonnais. 45 CJEU, 3 April 2000, C-176/96, Lehtonen and Castors Braine. 46 CJEU, 20 November 2001, C-268/99, Jany and others. 47 CJEU, 20 March 2003, C-187/00, Kutz-Bauer. 48 Levin v Staatssecretaris van Justitie, para 16; Lawrie-Blum, para 21; CJEU, 3 June 1986, C-139/85, RH Kempf v Staatssecretaris van Justitie, para 14. 49 CJEU, 26 February 1992, C-357/89, Raulin v Minister van Onderwijs en Wetenschappen, para 11.

88  Joanna Unterschütz the person concerned worked only a very limited number of hours in a labour relationship may be an indication that the activities are purely marginal and ancillary.50 ii. Remuneration This is understood very broadly.51 The Court has not refused to qualify economic activity as work even if a given worker’s remuneration, because of part-time work,52 is less than that of a person employed full-time or where a worker’s remuneration is substantially less than the guaranteed minimum wage53 or even below the minimum subsistence level and the person seeks to supplement it by other lawful means.54 Remuneration may even be partly derived from public funds/subsidies.55 At the same time, it is important that the activities carried out form ‘part of the normal labour market’56 and are not merely a means of rehabilitation or reintegration.57 iii.  Subordination – Working Under the Direction of Others58 This means, in particular, that the work is performed under the direction and supervision of a given worker’s contractual partner59 and the employer determines the time, place and content of his work.60 The worker does not share in the employer’s commercial risks61 and, for the duration of that relationship, forms an integral part of that employer’s undertaking.62 A special group that illustrates the widening boundaries of the notion of ‘worker’s subordination’ comprises shareholders and members of a company’s board of directors, in respect of which a ‘worker’ had to report on their management to the supervisory board and to cooperate with that board63 or performed their work under the management and supervision of a Minister of 50 Raulin, para 14. 51 CJEU, 5 October 1998, C-196/87, Udo Steymann v Staatssecretaris van Justitie, para 11. 52 Lawrie-Blum, para 2. 53 CJEU, 3 June 1986, C-139/85, Kempf, para 14; CJEU, 4 June 2009, C-22/08 and C-23/08, Vatsouras and Koupatantze, para 28. 54 CJEU, 14 December 1995, C-317/93, Inge Nolte v Landesversicherungsanstalt Hannover, para 19. 55 See Kempf, para 14; CJEU, 26 November 1998, C-1/97, Birden v Stadtgemeinde Bremen, para 28. 56 Trojani, para 24. 57 CJEU, 31 May 1989, C- 344/87, Bettray v Staatssecretaris van Justitie, para 20. 58 Lawrie-Blum, para 17; CJEU, 6 November 2003, C-413/01, Ninni-Orasche, para 24; and also C-22/08, Vatsouras and Kouptantze, para 26; CJEU, 21 February 2013, C‑46/12, LN v Styrelsen for Videregående Uddannelser og Uddannelsesstøtt, para 42. 59 CJEU, 11 November 2010, C-232/09, Danosa, para 56; CJEU, C-229/14, Balkaya, para 40. 60 CJEU, 13 January 2004, C-256/01, Allonby, para 72. 61 CJEU, 14 December 1989, C‑3/87, Agegate, para 36. 62 CJEU, 4 December 2014, C-413/13, FNV Kunsten Informatie en Media, para 36; CJEU, 16 September 1999, C-22/98, Becu, para 26. 63 Danosa, para 49; Balkaya, para 38.

The Concept of the ‘Employment Relation’  89 I­nfrastructure and Transport, which created a relationship of subordination.64 The fact that the shareholders or other competent body, apart from directing the work of the given member of the board of directors, also have the power to remove them from their duties is also substantive.65 To take another example, the personal and property relations between spouses that result from marriage do not rule out the existence of a relationship of subordination characteristic of an employment relationship.66 In any event, the sole fact that a person is paid a ‘share’ and that his or her remuneration may be calculated on a collective basis is not of such a nature as to deprive that person of their status of worker,67 nor is the freedom to engage their own assistants.68 While even widely understood subordination, including economic dependence, is characteristic of an employment relation, various forms of dependency can be observed also in other forms of work. This also concerns self-employment, especially where the service provider relies on only one client. The preference for an autonomous understanding of ‘worker’ on the part of the CJEU was presented in Ruhlandklinik, in which the Court considered that the effet utile of Directive 2008/104 would be undermined by restricting its scope solely to those categories of persons who can be classified as workers under national law. Moreover this ‘would permit the Member States or temporary work agencies to exclude at their discretion certain categories of persons from the benefit of the protection intended by that directive’.69 The recent study of the concept of worker by Risak and Dullinger also demonstrates that the CJEU goes beyond the national understanding of the concept of worker even in reference to the secondary sources of European labour law that refer to the national understanding of the notion. In its reasoning the CJEU argues that ‘the autonomous understanding has to be applied or effet utile in the case of directives that refer to national understanding’.70 B. Self-employed The distinction between self-employed and subordinate workers has been a source of many questions and concerns both in civil-law and common-law ­jurisdictions.71 Self-employment is a very complex phenomenon, covering a 64 Haralambidis, para 34. 65 Danosa, paras 50–51, 56; Balkaya, para 39; Haralambidis, para 31. See also CJEU, 10 September 2015, C-47/14, Holterman Ferho Exploitatie and Others, para 47. Cf CJEU, 27 June 1996, C-107/94, Asscher v Staatssecretaris van Financiën, para 26. 66 CJEU, 8 June 1999, C-337/97, Meeusen, para 13. 67 Agegate, para 36. 68 Agegate, para 36; Haralambidis, para 33. 69 CJEU, 17 November 2016, C-216-15, Ruhrlandklinik, paras 36–37. 70 Risak and Dullinger (n 32) (manuscript p 46). 71 C Engels, ‘Subordinate Employees or Self-employed Workers’ in R Blanpain (ed), Comparative Labour Law and Industrial Relations in Industrialized Market Economies (Hague, Wolters Kluwer, 2004) 275.

90  Joanna Unterschütz v­ ariety of activities that historically stem from the Roman law work contract locatio operis, which covered every contract and relationship involving the provision of a personal service in exchange for remuneration. In contemporary law the term can be applied to a wide variety of contractual practices, such as work contracts, contracting, agency work, service provision or supply, the professions (the traditional ones, such as the law or medicine, as well as emerging ones, such as management consulting or advertising).72 The activities embraced by the selfemployed range from those in liberal professions or lucrative and technologically advanced small enterprises, to the most marginal and insecure forms of work.73 Genuine self-employed persons usually independently manage and organise their professional activity, work for a large number of customers without placing themselves in hierarchical subordination to them and enjoy independence, autonomy and security in the market.74 Two characteristic features of this form of economic activity are entrepreneurial risk and entrepreneurial possibilities.75 It is up to national legislators to stipulate the level of economic independence that enables someone to describe themselves as genuinely self-employed.76 However, this should not prevent courts from classifying a self-employed person as a worker if certain substantive criteria are met. In EU law the notion of self-employed is not defined. However, the personal field of application of Articles 49, 50 and 53 TFEU is designated as ‘selfemployed’. The CJEU has complemented the dichotomous division of ‘workers’ (including ‘self-employed’ and ‘dependent workers’) with the following criteria to distinguish it from unpaid employment: time, place of work and the way in which it is performed.77 At the same time, an ‘activity other than in employment’ or ‘activity as a self-employed person’ is characterised by the absence of any relationship of subordination between the trader and the person remunerating that trader.78 Also, the activities of the self-employed do not require any specific qualifications or investment.79 The CJEU indicates that self-employment is an activity performed ‘outside any relationship of subordination concerning the choice of that activity, working conditions and conditions of remuneration; under that person’s own responsibility; in return for remuneration paid to that person directly and in full’.80 72 A Perulli, Economically Dependent / Quasi-subordinate (Parasubordinate) Employment: Legal, Social and Economic Aspects (Brussels, Committee on Employment and Social Affairs, 2003) 8. 73 See CJEU, 27 September 2001, C-257/99, Barkoci and Malik, para 50. 74 U Muehlberger, Dependent Self-employment. Workers on the Border between Employment and Self-Employment (New York, Palgrave Macmillan, 2007) 4–5; Perulli (n 72) 105. 75 A Musiała, Zatrudnienie niepracownicze (Warszawa, Difin, 2011) 92. Perulli (n 72) 105. 76 Musiała (n 75) 114. 77 Asscher v Staatssecretaris van Financiën, paras 24–25. 78 Jany, para 56. See inter alia Asscher v Staatssecretaris van Financiën, paras 25, 26; Meeusen, para 15. 79 CJEU AG, 15 February 1996, C-107/94, Asscher v Staatssecretaris van Financiën, para 110. 80 Jany, para 26.

The Concept of the ‘Employment Relation’  91 The most significant difference between an employment contract and a civil or commercial contract is the scope of freedom of contract. In the latter, the parties are free to agree to any terms they find mutually acceptable. New forms of work organisation and replacement of employment contracts by contracts based on civil law do not necessarily lead to the disappearance of personal dependence.81 Instead, the autonomy of the person performing work in terms of direct subordination or control (especially of highly skilled workers) can be replaced by different forms of control: dominant position of the contractor in terms of shaping the conditions of the contract; no formal limitations concerning resolution of the contract, as well as strong control over the process of work.82 Therefore, both the literature and jurisprudence distinguish a category of dependent self-employed83 or dependent entrepreneurs.84 The notion of dependent self-employed worker expresses contractual situations in which an individual is self-employed in legal terms (or, at least, maintains that this is so), but who is ‘economically, and sometimes also personally dependent on his or her principal’.85 The problem of dependent (or false) self-employment disguising an employment relation has also been noted by the CJEU.86 Especially the status of ‘worker’ within the meaning of EU law is not affected by the fact that a person has been hired as a self-employed person under national law, for tax, administrative or organisational reasons, as long as that person acts under the direction of his employer as regards, in particular, his freedom to choose the time, place and content of his work,87 does not share in the employer’s commercial risks88 and, for the duration of that relationship, forms an integral part of that employer’s undertaking, so forming an economic unit with that undertaking.89 In practice, it may be that a given working relationship between two persons does not fall neatly into the category of either worker or self-employed person, and may display features characteristic of both.90

81 Z Kubot, ‘Szczególne formy zatrudnienia i samozatrudnienia’ in Z Kubot (ed), Szczególne formy zatrudnienia (Wrocław, Uniwersytet Wrocławski, 2000) 18; Engels (n 71) 279. 82 Kubot (n 81) 22; Engels (n 71) 285. 83 Muehlberger (n 74) 4–5. 84 H Collins, KD Ewig, A McColgan, Labour Law. Texts and Materials (Portland, Oregon and Oxford, Hart Publishing, 2005) 179. 85 Muehlberger (n 74) 4–5; Musiała (n 75) 92–93; S Sciarra, The Evolution of Labour Law (1992–2003), Volume I: General Report (Luxembourg, Office for Official Publications of the European Communities, 2005) 21. 86 FNV Kunsten Informatie en Media, paras 31, 35; Allonby, para 71. 87 Allonby, para 72. 88 Agegate, para 36. 89 Becu, para 26. See also GT, 6 February 2014, T-342/11, CEEES and Asociación de Gestores de Estaciones de Servicio v Commission, paras 43–44. 90 CJEU AG, 11 September 2014, FNV Kunsten, para 51.

92  Joanna Unterschütz C.  (Interim) Conclusions The notions of ‘worker’ and ‘self-employed’ have been interpreted by the CJEU and given autonomous or European meaning. This, however, does not necessarily limit the interpretation of the terms applied by the Charter. Quite the opposite, the rationale of the Charter is to concentrate fundamental rights, including social rights, in one legal act of the EU acquis, which can also be seen as a response to the processes of globalisation by counterbalancing the activities of transnational corporations.91 In the preamble to the Charter, rights are derived from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charter adopted by the Union and the Council of Europe and the case law of the Court of Justice of the European Union and the European Court of Human Rights. Article 6 TEU reinforces the principles already recognised in the CJEU rulings. This is important for the relationship between fundamental rights that go beyond symbolic values and Treaty freedoms.92 The Charter is therefore rather an example of the consolidation of human rights already recognised in the EU system and should be regarded as a human rights instrument within the EU legal order.93 The Charter consequently applies the term ‘worker’ or even ‘every worker’ instead of the narrower notion of ‘employee’ or even more generic terms such as ‘everyone’, similarly to the international human right instruments it refers to in the Preamble, explanations and Article 52(3).94 A wide understanding of the notion of ‘worker’ is also supported by the international sources of inspiration for the CFREU. Even though there is no direct appeal to the ILO in the Charter, the ILO Conventions constitute an important aspect of the ‘international obligations of the Member States’.95 Also, the Social Charter, referred to in explanations to 91 MA Moreau, Normes sociales, droit du travail et mondialisation. Confrontations et mutations (Paris, Dalloz, 2006) 255. 92 A Wyrozumska, ‘Inkorporacja Karty Praw Podstawowych do UE: status Karty w prawie UE, zakres obowiązywania i stosowania, główne problemy interpretacyjne z uwzględnieniem stanowiska polskiego’, in J Barcz (ed), Ochrona praw podstawowych w Unii Europejskiej (Warszawa, LexisNexis, 2008) 82; S Giubboni, Social Rights and Market Freedoms in the European Constitution. A Labour Law Perspective (Cambridge, Cambridge University Press, 2006) 213. 93 D McGoldrick, ‘The Charter and United Nations Human Rights Treaties’ in S Peers and A Ward, The European Charter of Fundamental Rights. Politics, Law and Policy (Oxford, Hart Publishing, 2004) 94; H Senden, Interpretation of Fundamental Rights in a Multilevel Legal System (Cambridge, Intersentia, 2011) 39. 94 N Countouris, ‘The Concept of “Worker” in European Labour Law: Fragmentation, Autonomy and Scope’ (2018) 47(2) 192–225, https://doi.org/10.1093/indlaw/dwx014. 95 This in itself does not exclude a conflict of values between the ILO and the EU. One example is the prohibition of night work for all women, perceived as a desired and possible goal by the ILO and as discrimination based on sex by the EU. W Sanetra, ‘Karta Praw Podstawowych Unii Europejskieja prawo pracy’ in A Wróbel (ed), Karta Praw Podstawowych w europejskim i krajowym porzadku prawnym (Warszawa, Oficyna Wolters Kluwer, 2009) 264; see also P O’Higgins, ‘The Interaction of the ILO, the Council of Europe and the European Union Standards’ in B Hepple (ed), Social Rights in a Global Context. International and Comparative Perspectives (Cambridge, Cambridge University Press, 2002) 61–63.

The Concept of the ‘Employment Relation’  93 many articles (eg Articles 28, 30, 31) was shaped on the basis of the ILO Conventions. This strongly influences the interpretation of the notion of ‘worker’ in the Charter, especially the fact that all the provisions in which personal scope is indicated as ‘worker(s)’ have counterparts in ILO instruments. If the subject matter of a given instrument is not limited to employed workers, or the instrument does not provide for any specific exclusion in respect of one or more categories of workers, then ‘worker’ is understood to cover all workers in order to give the broadest possible meaning to the term. This implies covering not only workers performing work on the basis of an employment contract but also independent workers and self-employed insofar as they do not act in the capacity of employer. The Community Charter of the Rights of Workers applies the more generic term ‘worker’. Being merely a political declaration96 it is also a source of inspiration for the Charter articles (eg Articles 28, 31). All this implies going beyond not only the national interpretation of the notion of worker but even the EU meaning based on the CJEU jurisprudence developed around Article 45 TFEU and following the wider approach taken by the ECtHR and the ILO. The human rights dimension of the rights and principles enshrined in the Charter can be fulfilled if the widest possible group of persons performing paid work is covered. The Pillar of Social Rights in Chapter II ‘Fair Working Conditions’ consequently applies the general term ‘workers’ (eg Articles 5a, 6, 7b, 8,10). In Article 5 entitled ‘Secure and adaptable employment’ the Pillar refers to ‘working conditions’ twice: in 5a in reference to equal working conditions during the employment relationship and in 5c in the context of ‘innovative forms of work’ that ‘ensure quality working conditions’. The second sentence of the latter paragraph mentions also entrepreneurship and self-employment. One could argue that the self-employed should also be covered by the requirement to ensure ‘quality working conditions’. While Article 8a on social dialogue contains only a rather weak clause on encouraging social dialogue and respecting autonomy and the right to collective action of the social partners, the second clause clearly mentions the right to information and consultation for ‘workers or their representatives’. Articles 6, 7 and 10 use the general term ‘worker’ without referring to legislation or collective agreements, which indicates again the possibility to include a wide range of persons performing paid work.97 The challenges involved in defining the notion of worker can also be illustrated by the outcome of public consultations on the EC initiative for the revision of the Written Statement Directive 91/533/EEC, which revealed that the reference to the national definition of employee can in practice narrow the scope of application of a directive. Therefore the European Commission suggests clarifying the personal scope of the revised Written Statement Directive in line with the parameters set out by the CJEU to identify an employment r­ elationship 96 Sanetra (n 95) 263. 97 Even though Rissak and Dulliger suggest that the EC applies a ‘traditional’ notion of worker based on the concept of subordination; Risak and Dulliger (n 32) 11.

94  Joanna Unterschütz by including criteria which would help achieve more consistency in the personal scope of application of this Directive while making clear that it applies to every type of person that for a certain period of time performs services for and under the direction of another person in return for remuneration, including domestic workers, temporary agency workers, on-demand workers, intermittent workers, voucher based-workers, and platform workers.98

The proposal should, however, also include self-employed workers, as far as they do not act in the capacity of employer. III.  THE EMPLOYER

The other party of the employment relation is the employer. The term is not defined in EU law and some argue that it is not needed because the employer is an entrepreneur employing workers who exercise the right of natural persons and other operators to move freely within the common market. Because the scope of the concept of entrepreneur exercising the right to free movement within the EU is broader than the term ‘employer’ it was not necessary for the CJEU to consider the scope of the right of free movement within the European Union in the case of the other side of the employment relation, employers.99 However, some sources of secondary EU law (eg Directive 89/391/EEC100) do define the notion.101 IV.  THE BUSINESS STRUCTURE

A.  The Undertaking The legal framework in which the employment relationship operates may very well depend on the respective business structure in which the employer has organised it. The undertaking – one of the basic notions of European law – is also relevant to labour law. However, there is no single definition of ­undertaking.102 It is applied in so many areas covered by the Treaties that it 98 Commission (2017) 6121, 10–11. 99 AM Świątkowski, Prawo pracy Unii Europejskiej (Warszawa, CH Beck, 2015) 74. 100 Art 3(b), ‘employer: any natural or legal person who has an employment relationship with the worker and has responsibility for the undertaking and/or establishment’. 101 The question of whether the rights enshrined in the CFREU can be invoked directly or indirectly against the respective employer will be dealt with in ch 6. 102 ‘Undertaking’ was defined in the Treaty Establishing the European Atomic Energy Community (Art 196b(b) ‘“undertaking” means any undertaking or institution which pursues all or any of its activities in the territories of Member States within the field specified in the relevant Chapter of this Treaty, whatever its public or private legal status’). The definition cannot be applied to the matters covered by the current treaty. A definition of ‘enterprise’ can also be found in Art 80 of the Treaty constituting the European Coal and Steel Community, which expired on 23 July 2002: ‘The term

The Concept of the ‘Employment Relation’  95 requires a d ­ ifferent interpretation for the purpose of each of them and the CJEU has given it a functional content and introduced an autonomous concept of undertaking.103 The ‘undertaking’ for the purposes of competition law was first interpreted by the CJEU in Hydrotherm as ‘an economic unit for the purpose of the subjectmatter of the agreement in question even if in law that economic unit consists of several persons, natural or legal’.104 This concept was further developed in Höfner and Elser,105 in which the Court applied a comparative criterion in order to establish the economic nature of its activity, which lies at the root of a functional and wide-ranging approach to the concept of undertaking.106 The second criterion applied in order to classify an activity as economic in nature is that of participation in a market or the carrying on of an activity in a market context: the CJEU maintains that ‘any activity consisting in offering goods and services on a given market is an economic activity'.107 Currently, the term is defined as every entity engaged in economic activity regardless of its legal personality or status or the way in which it is financed.108 It is not possible to list all the subjects that could possibly be qualified as undertakings. Examples include: artists, persons pursuing free professions (legal advisors, architects, self-employed doctors), professional and semi-professional sportsmen, production or agricultural cooperatives, organisations managing intellectual property, local government entities, public employment offices, public post offices, public radio and television broadcasters foundations created for the purpose of bank management and also agricultural trade unions or trade unions as long as they do not perform a public function but engage in economic markets running their own businesses.109

“enterprise”, as used in the present Treaty, refers to any enterprise engaged in production in the field of coal and steel within the territories mentioned in the first paragraph of Article 79; and in addition, as concerns Articles 65 and 66, as well as information required for their application and appeals based upon them, to any enterprise or organization regularly engaged in distribution other than sale to domestic consumers or to artisan industries.’ 103 G Materna, Pojęcie przedsiębiorcy w polskim i europejskim prawie ochrony konkurencji (Warszawa, Oficyna Wolters Kluwer, 2009) 60; CJEU AG, 28 January 1999, C-67/96, Albany, para 206, CJEU AG, 10 November 2005, C-205/03, FENIN v Commission, para 11. 104 CJEU, 12 July 1984, C-170/83, Hydrotherm, para 11. 105 CJEU, 23 April 1991, C-41/90, Höfner and Elser v Macrotron, para 21: ‘the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed and, secondly, that employment procurement is an economic activity’. 106 CJEU AG in FENIN, para 11. 107 CJEU AG in FENIN, para 13; CJEU, 12 September 2000, C-180/98 to C-184/98, Pavlov and Others, para 75; CJEU, 19 February 2002, C-309/99, Wouters and others, para 47; CJEU, 24 October 2002, C-82/01, Aéroports de Paris v Commission, para 79. 108 G Materna (n 103) 115; Höfner and Elser v Macrotron, para 21; CFI, 30 March 2000, T-513/93, Consiglio Nazionale degli Spedizionieri Doganali v Commission, para 36. 109 Decision of the Commission IV/C-29.290, Veassen, para 12; Decision of the Commission IV 29.559, RAI v Unitel, IV.2; CJEU, 12 December 1995, Decision of the Commission in 90/456/ EES; IV/31.734; CJEU, C-319/93, Dijkstra, para 33; Decision of the Commission, 24 June 2004,

96  Joanna Unterschütz EU law is not concerned with the legal and organisational forms of economic activity.110 The status of ‘undertaking’ can be attributed to a legal entity that, according to national law, may not be a subject of rights or obligations, as well as several legal or natural persons if they pursue a common economic aim together.111 It is not affected by whether a unit was formed by public institutions and financed by the state.112 This makes it similar to the notion of ‘employer’ in those legal systems in which the ‘management’ concept of employer has been adopted. For example, the Polish Labour Code (Article 2) contains the following definition of ‘employer’: ‘any organizational unit even if it has no legal personality, and any natural person, if they employ workers’. Unlike the ‘ownership’ model of ‘employer’, which defines it as a legal or natural person, being the owner of a workplace or having the right to dispose of property based on another title, this concept is called the ‘management’ model of ‘employer’. This model identifies the employer with the organisational unit, whose leadership has a mandate to manage it and control its workers, regardless of whether this entity has legal personality or not. A key attribute of the employer is the ability to hire workers on their own behalf, which is a necessary and sufficient condition.113 In the case of entities that undertake activities of a mixed character (for example, public and economic) each area of activity must be assessed separately.114 Due to the functional approach taken by the CJEU with regard to public bodies the Court examines whether the activity in question is, at least potentially, performed by private entities engaged in the supply of goods or services.115 Individuals, too, may be classified as undertakings116 if they are independent economic actors in markets for goods or services. The rationale underlying those cases is that the entities under scrutiny are fulfilling the ‘function’ of an undertaking.117 The status of an undertaking is strictly connected to the existence of an entity pursuing its activities on its own account and bearing the risks. COMP/38.549, Architects’ Association, para 38; CJEU, 14 July 1976, 13/76, Dona, para 12; CJEU, 15 December 1994, C-250/92, Gøttrup-Klim and Others, para 50; CJEU, 5 October 1994, C-323/93, Centre d’insémination de la Crespelle v Coopérative de la Mayenne, para 17; CJEU, 27 March 1974, 127/73 BRT-II, para 15; CJEU, 27 April 1994, C-393/92, Gemeente Almelo and others v Energiebedrijf IJsselmij, para 35; CJEU, 23 April 1991, C-41/90, Höfner and Elser, para 21; CJEU, 10 January 2006, C-222/04, Cassa di Risparmio di Firenze and others, para 125; CJEU, 21 September 1999, C-67/96, Albany, para 87; CJEU, 21 June 1974, 2/74, Reyners, para 52; CJEU, 12 September 2000, C-180/98, Pavlov and Others, para 77. 110 CJEU, 17 February 1993, C-159/91 and C-160/91, Poucet and Pistre v AGF and Cancava, para 17. 111 Hydrotherm, para 11; Materna (n 103) 116. 112 CJEU, 23 March 2006, C-237/04, Enirisorse, para 32. 113 M Nałęcz, ‘Komentarz do artykułu 3’ in K Walczak (ed), Kodeks pracy. Komentarz (Warszawa, CH Beck, 2017). 114 CJEU AG, 23 March 2000, Pavlov and Others, para 115. 115 CJEU, 18 March 1997, C-343/95, Diego Calì and Figli v Servizi ecologici porto di Genova, para 16; C-41/90, Höfner and Elser, para 21. 116 With regard to Italian customs agents, 18 June 1998, C-35/96, Commission v Italy. 117 CJEU AG, 28 January 1999, C-67/96, Albany, para 214.

The Concept of the ‘Employment Relation’  97 Dependent labour is by its very nature the opposite of the independent exercise of an economic or commercial activity. Workers normally do not bear the direct commercial risk of a given transaction. They are subject to the orders of their employer. They do not offer services to different clients, but work for a single employer. For those reasons, there is a significant functional difference between a worker and an undertaking providing services. That difference is reflected in their distinct legal status in various areas of EU or national law.118 Some managerial decisions, such as adopting a very flexible model of employment or payment of very low wages, may be considered examples of shifting the risk from the employer to the worker. When a natural person provides services for and under the direction of a corporate legal person the relationship between the two legal persons is described as an employer/worker relationship, with the employer directing the worker. In Suiker Unie, the Court of Justice explained that: [I]f … an agent works for the benefit of his principal he may in principle be treated as an auxiliary organ forming an integral part of the latter’s undertaking, who must carry out his principal’s instructions and thus, like a commercial employee, forms an economic unit with this undertaking.119

This is the case as long as the agent bears no financial or commercial risk in relation to the activities for which it has been appointed as an agent by the principal. The absence of risk shows that the agent has no presence on the market that is independent of the principal.120 The notion of ‘undertaking’ is especially relevant to Article 27 CFREU, which refers explicitly to information and consultation within the undertaking (which will be further commented on in chapter 21). The notion of undertaking should be understood broadly and not limited to one separate undertaking (or an establishment formed within one). The Charter does not specify what is the ‘appropriate level’ of particular activities. Depending on the subject of the consultation, the ‘appropriate level’ may be, in particular, the level of the workplace (establishment), undertaking or group of enterprises, eg in relation to the EU-wide structure. The decision in this regard belongs to the social partners.121 B.  The Establishment Another term of EU labour law122 that needs to be interpreted in an autonomous and uniform manner in the EU legal order is ‘establishment’. Similar to 118 Materna (n 103) 116. 119 CJEU, 16 December 1975, C-40/73, Suiker Unie and Others v Commission, para 480. 120 CJEU AG, 25 March 1998, C-22/98, Becu, para 53. 121 L Mitrus, ‘Komentarz do artykułu 27’ in A Wróbel (ed), Karta Praw Podstawowych Unii Europejskiej. Komentarz (Warszawa, CH Beck, 2013). 122 Rockfon, para 25; Athinaïki Chartopoïïa, para 23; CJEU, 30 April 2015, C-80/14, USDAW and Wilson, para 45.

98  Joanna Unterschütz the notion of ‘worker’, ‘establishment’ was also given a Community meaning by the CJEU against the background of another fundamental economic freedom, freedom of establishment,123 recognised also in Article 15(2) CFREU. The term appears in EU secondary law, in Council Directive 98/59/EC. The CJEU ruled in Rockfon that the term ‘establishment’, appearing in Article 1(1)(a) of Directive 98/59/EC, must be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant were assigned to carry out their duties. It is not essential for the unit in question to be endowed with a management that can effect collective redundancies independently.124 For the purposes of the application of Directive 98/59, an ‘establishment’, in the context of an undertaking, may consist of a distinct entity, having a certain degree of permanence and stability, which is assigned to perform one or more given tasks and which has a workforce, technical means and a certain organisational structure allowing for the accomplishment of those tasks.125 By the use of the words ‘distinct entity’ and ‘in the context of an undertaking’, the Court clarified that the terms ‘undertaking’ and ‘establishment’ are different and that an establishment normally constitutes a part of an undertaking. That does not, however, preclude the establishment being the same as the undertaking, where the undertaking does not have several distinct units.126 The establishment need not have any legal autonomy (including a management that can independently effect collective redundancies) nor need it have economic, financial, administrative or technological autonomy in order to be regarded as an ‘establishment’ nor must there be a geographical separation from the other units and facilities of the undertaking.127 V. CONCLUSIONS

As in the case of workers the new forms of work beg another approach to the concept of employer. With the advent of multilateral work settings, from employment agencies to complex corporate group structures, the exercise of employer functions are increasingly shared between multiple entities.128 The problem of the division of the employer is also important in the case of certain capital groups, in particular when connections between the

123 CJEU, 30 November 1995, C-55/94, Gebhard v Consiglio dell’Ordine degli Avvocati e P ­ rocuratori di Milano, para 25. See also AGET Iraklis, paras 52–53. 124 Rockfon, para 32; USDAW and Wilson, para 47. 125 Athinaïki Chartopoïïa, para 27. 126 USDAW and Wilson, paras 51–52. 127 Athinaïki Chartopoïïa, paras 28–29; Rockfon, 34, and point 2 of the operative part. 128 J Prassl, The Concept of Employer (Oxford, Oxford University Press, 2016) 13.

The Concept of the ‘Employment Relation’  99 parent company and subsidiaries are so strong that from an economic point of view these companies are in a sense ‘part of’ the mother company (especially when the parent company owns 100 per cent of the share capital of its­ subsidiaries).129 While some functions of the employer, such as concluding employment contracts and organising work will be performed by the contractual employer, collective grievances and negotiations on collective agreements will be the domain of the mother company. The concept of the division of the employer is also analysed by the labour law literature. For example, Z Kubot admits that the notion of an employer in collective labour law is broader than the one in individual labour law, and may include other entities, for example the controlling company.130 According to his concept of the employer’s segmental ability,131 two or more organisational units may jointly perform the functions of the employer, and their actions may also complement one another, for example, in the area of negotiating and concluding collective agreements.132 In some cases, in order to find an appropriate bargaining partner, the concept of employer should be expanded. Such a proposal has already been made by J Prassl, who has formulated a new ‘functional’ concept of the employer. Employers have five main functions: inception and termination of the employment relationship, procuring labour and its fruits, providing work and pay, managing the enterprise/internal market and managing the enterprise/external market.133 In light of the functional concept the employer ‘should be understood as the entity, or combination of entities, playing a decisive role in the exercise of relational employing functions, and regulated or controlled as such in each particular domain of employment law’.134 Certainly, the traditional notion of employer is difficult to apply in many new forms of employment. One example is internet platforms. Some may operate more as intermediaries, others are closer to temporary work agencies, while some are supposed to be categorised as piecework. In any case, it is difficult to find a stable legal bond and subordination characteristics for employment relations.135 Even though in some platforms all or most of the functions are fulfilled by the platform itself, there are also models in which these are shared among different entities. The platforms themselves do their best to avoid being

129 P Czarnecki, Odpowiedzialność pracodawcy a rozwój struktur holdingowych (Warszawa, Wolters Kluwer, 2014) 221. 130 Z Kubot, ‘Odcinkowa zdolność pracodawcza spółki dominującej w grupie kapitałowej’ (2015) 9 Praca i Zabezpieczenie Społeczne 20. 131 Kubot (n 130) 22. 132 The problem of obligations of contractual and non-contractual employers in the context of transfer of undertakings was analysed by the CJEU in Case C‑242/09, Albron Catering BV v FNV Bondgenoten. 133 Prassl (n 128) 32. 134 ibid, 155. 135 Prassl and Risak (n 14) 98.

100  Joanna Unterschütz identified as employers.136 In fact, this can be illustrated by the example of the Uber case in Germany. Applying the functional definition of employer instead of looking for contractual bonds will also make it possible to distribute employers’ obligations and at the same time impose obligations on different entities in accordance with the function they fulfil.137 The Charter may become a useful tool of recourse that would make it possible to cover an even broader group of people performing paid work.



136 Prassl 137 Prassl

(n 15) 5. and Risak (n 14) 123.

6 Application (Article 51) and Limitations (Article 52(1)) ARISTEA KOUKIADAKI

Article 51 – Field of application The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties. The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Article 52(1) – Limitations Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

EXPLANATIONS ON ARTICLE 51 – FIELD OF APPLICATION The aim of Article 51 is to determine the scope of the Charter. It seeks to establish clearly that the Charter applies primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity. This provision was drafted in keeping with Article 6(2) of the Treaty on European Union, which required the Union to respect fundamental rights, and with the mandate issued by the Cologne European Council. The term ‘institutions’ is enshrined in the Treaties. The expression ‘bodies, offices and agencies’ is commonly used in the Treaties to refer to all the authorities set up by the Treaties or by secondary legislation (see eg Articles 15 or 16 of the Treaty on the Functioning of the European Union).

102  Aristea Koukiadaki As regards the Member States, it follows unambiguously from the case-law of the Court of Justice that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of Union law (judgment of 13 July 1989, Case 5/88 Wachauf [1989] ECR 2609; judgment of 18 June 1991, Case C-260/89 ERT [1991] ECR I-2925; judgment of 18 December 1997, Case C-309/96 Annibaldi [1997] ECR I-7493). The Court of Justice confirmed this case law in the following terms: ‘In addition, it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules …’ (judgment of 13 April 2000, Case C-292/97 [2000] ECR I-2737, paragraph 37 of the grounds).1 Of course this rule, as enshrined in this Charter, applies to the central authorities as well as to regional or local bodies, and to public organisations, when they are implementing Union law. Paragraph 2, together with the second sentence of paragraph 1, confirms that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. Explicit mention is made here of the logical consequences of the principle of subsidiarity and of the fact that the Union only has those powers which have been conferred upon it. The fundamental rights as guaranteed in the Union do not have any effect other than in the context of the powers determined by the Treaties. Consequently, an obligation, pursuant to the second sentence of paragraph 1, for the Union’s institutions to promote principles laid down in the Charter may arise only within the limits of these same powers. Paragraph 2 also confirms that the Charter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the Treaties. The Court of Justice has already established this rule with respect to the fundamental rights recognised as part of Union law (­judgment of 17 February 1998, C-249/96 Grant [1998] ECR I-621, paragraph  45 of the grounds). In accordance with this rule, it goes without saying that the reference to the Charter in Article 6 of the Treaty on European Union cannot be understood as extending by itself the range of Member State action considered to be ‘implementation of Union law’ (within the meaning of paragraph 1 and the above-mentioned case law).

EXPLANATIONS ON ARTICLE 52 – SCOPE AND INTERPRETATION OF RIGHTS AND PRINCIPLES The purpose of Article 52 is to set the scope of the rights and principles of the Charter, and to lay down rules for their interpretation. Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case law of the Court of Justice: [I]t is well established in the case-law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market, provided that those restrictions in fact



1 CJEU,

13 April 2000, C–292/97, Kjell Karlsson and Others.

Application and Limitations  103 correspond to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, disproportionate and unreasonable interference undermining the very substance of those rights.2 The reference to general interests recognised by the Union covers both the objectives mentioned in Article 3 of the Treaty on European Union and other interests protected by specific provisions of the Treaties such as Article 4(1) of the Treaty on ­European Union and Articles 35(3), 36 and 346 of the Treaty on the Functioning of the ­European Union.

I. INTRODUCTION

The CFREU brought together in one place all of the personal, civic, political, economic and social rights enjoyed by people within the EU. In doing this, it marked a new stage in the process of European integration3 and seemed to confirm the ‘fundamentally constitutive status’ of these rights in the EU legal order. When it comes to labour rights in particular, tensions within the European Union were particularly pronounced in the pre-Lisbon Treaty period, with the Laval Quartet4 case law being a prime illustration. These were then exacerbated by the emergence of the sovereign debt crisis and the ‘structural labour market reforms’ contained in the loan agreements concluded by the EU Member States most affected by the crisis. In this context, the assumption was that if labour rights are ‘elevated to a fundamental constitutional level and given a hard edge, they will not only save workers from the worst depredations of neoliberal and austerity policies but also provide a secure basis for resocialising … Europe’.5 To that end, particular features of the Charter are the lack of distinction between civil and political rights and economic, social and cultural rights, but

2 ibid, para 45. 3 See K Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 ­European Constitutional Law Review 375. 4 CJEU, 11 December 2007, C–438/05, International Transport Workers’ Federation v Viking Line ABP; CJEU, 18 December 2007, C–341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet; CJEU, 3 April 2008, C-336/06, Rüffert v Land Niedersachsen; CJEU, 19 June 2008, C-319/06, Commission v Luxembourg. 5 J Fudge, ‘Constitutionalizing Labour Rights in Canada and Europe: Freedom of Association, Collective Bargaining, and Strikes’ (2015) 68 Current Legal Problems 267 at 268. Fudge discusses critically this assumption with specific regard to collective labour rights and immediate legal strategies for unions. Importantly, this assumption has been shared not only by academics but also by EU citizens; with regard to the latter, the increasing number of petitions tabled recently to the PETI Committee that rely on the CFREU to challenge national measures provides confirmation of this (for examples of such petitions see E Spaventa, ‘The Interpretation of Article 51 of the EU Charter of Fundamental Rights: The Dilemma of Stricter or Broader Application of the Charter to National Measures’, PE 556.930 (European Parliament, 2016) and A Koukiadaki and I ­Katsaroumpas, ‘Temporary Contracts, Precarious Employment, Employees’ Fundamental Rights and EU Employment Law’, PE 596.823 (European Parliament 2017)).

104  Aristea Koukiadaki also the fact that it constitutes a minimum guarantee of protection. In conjunction with Articles 2 and 3 TEU, the Charter could be interpreted as forming part of the ‘framing constitutions’ of the EU, providing space for normative results, on the basis of human rights, that contradict the requirements of the economic constitution.6 However, it is far from automatic that the elevation of the CFREU to EU primary law status will lead to the effective constitutionalisation of labour rights and the development more broadly of a truly European social constitution. ­Drawing largely on the work of Tuori on the multiplicity of Europe’s ­constitutions,7 this chapter will provide a critical assessment of the field of application and the nature and extent of limitations applicable to the substantive provisions of the CFREU. As perceptions of the function of the CFREU have been framed significantly by the recent economic crisis, the analysis will sometimes use the austerity measures as a case with which to illustrate the CFREU’s possible effectiveness in supporting the project of a European social constitution. The main argument is that the CJEU has used Articles 51 and 52 in order to frame clashes between different types of rights as legal issues, reinforcing in turn the functional primacy of the EU economic constitution and limiting simultaneously the scope for the effective elevation of labour rights to a fundamental constitutional level.8 The analysis identifies two main mechanisms through which such clashes are internalised in the EU legal system. The first concerns the field of a­ pplication of the CFREU vis-à-vis EU Member States: while the CJEU has been keen on adopting a broad interpretation of the field of application when the internal market or EU integration is at stake, it has not used Article 51(1) to push the boundaries of EU fundamental social rights. The second mechanism used to limit the scope for the constitutionalisation of social rights is the CJEU’s emphasis on the limitations, with particular emphasis on the proportionality test, in cases involving social rights. Taken together, they have created a dual process of, on one hand, reinforcing the primacy of economic interests, while on the other hand downgrading the importance of

6 On this, K Tuori, ‘The Many Constitutions of Europe’ in K Tuori and S Sankari (eds), The Many Constitutions of Europe (Abingdon, Routledge, 2010). See also C Kollonay-Lehoczy, K Lörcher and I Schömann, ‘The Lisbon Treaty and the Charter of Fundamental Rights of the European Union’ in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012). 7 K Tuori and S Sankari, The Many Constitutions of Europe (London, Ashgate, 2010) and K Tuori, ‘European Social Constitution: Between Solidarity and Access Justice’ in K ­Purnhagen and P Rott (eds), Varieties of European Economic Law and Regulation: Liber Amicorum for Hans ­Micklitz, Studies in European Economic Law and Regulation, vol 3 (Cham, Springer Science+Business Media, 2014) 371–400. 8 K Tuori, ‘The Economic Constitution among European Constitutions’, Helsinki Legal ­Studies Research Paper No 6, available at SSRN: https://ssrn.com/abstract=1844285 or http://dx.doi. org/10.2139/ssrn.1844285.

Application and Limitations  105 social rights, ultimately questioning the effectiveness of the constitutionalisation of labour rights itself. II.  ARTICLE 51 CFREU

A.  General Remarks The CFREU is a free-standing instrument that derives its authority from the Treaty on the European Union.9 Consistent with the principle of conferral, it is the scope of EU law that determines EU jurisdiction on fundamental rights and not the reverse. While the CFREU constitutes an important codification and clarification of fundamental rights as they exist in the EU it is thus applicable only when EU law is at stake. The limits on the scope of application are based on the TEU and the CFREU itself. Article 6(2) TEU provides that ‘the provisions of the Charter shall not extend in any way the competences of the Union as defined by the Treaties’. Secondly, Article 51(2) of the Charter makes clear that the provisions of the Charter are not to extend in any way the competences of the Union as defined in the Treaties.10 Consequently, where a legal situation does not fall within the scope of EU law, the Court does not have jurisdiction to adjudicate, and any provisions of the Charter that may be relied on cannot in themselves form the basis of such jurisdiction.11 In addition to these core rules, there are several Charter articles that contain clauses that further restrict its scope ratione materiae.12 It becomes clear that defining the field of application of the Charter is a matter of constitutional significance and as such ‘demands from the Court a convincing legal rationale for the choices it ultimately makes’.13 However, the Charter goes much further than this as Article 51(1) CFREU requires that the addressees of the Charter’s obligations ‘respect the rights, observe the principles and promote the application thereof’. It thus requires from its addressees  – namely the EU institutions, including the CJEU, and EU Member States – not only ‘passive’ compliance but also proactive engagement for the promotion of

9 Art 6(1) TEU states that the ‘Union recognises the rights, freedoms and principles set out in the Charter, which shall have the same legal value as the Treaties.’ 10 Explanations on Art 51. 11 See, in particular, CJEU GC, 8 November 2016, C‑243/15, Lesoochranárske zoskupenie VLK (EU:C:2016:838, para 51 et seq), and CJEU, 14 April 2016, C‑328/15, Târşia (not published, EU:C:2016:273, paras 23 and 24), and CJEU, 8 September 2016, C‑484/16, Semeraro (not published, EU:C:2016:952, para 43). 12 See, for instance, the reference to ‘in accordance with Union law and national laws and practices’ in Art 16 on the freedom to conduct business and Art 28 on the right to collective bargaining. 13 M Dougan, ‘Judicial Review of Member State Action under the General Principles and the Charter: Defining the ‘Scope of Union Law’ (2015) 52 Common Market Law Review 1201 at 1204.

106  Aristea Koukiadaki its application and any analysis of the rights contained in the Charter should take this into account. B.  The Relationship Between the CFREU and EU Institutions Article 51 establishes that the Charter applies primarily to the institutions and bodies of the Union in compliance with the principle of subsidiarity and clarifies that the Charter does not, in any way, modify the competences and powers of the Union. According to the explanations on Article 51, this provision was drafted in keeping with Article 6(2) TEU, which required the Union to respect fundamental rights, and with the mandate issued by the Cologne European Council.14 The term ‘institutions’ is enshrined in the Treaties: Article 13(1) TEU states that the institutions of the EU are the European Parliament, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors. Article 51(1) CFREU extend to ‘bodies, offices and agencies’ of the Union. The expression ‘bodies, offices and agencies’ is commonly used in the Treaties to refer to all the authorities set up by the Treaties or by secondary legislation.15 The language of Article 51 indicates that the Charter applies to EU institutions irrespective of whether they act under EU law. The absence of a reference to ‘when implementing EU law’, as in the case of Member States,16 means that there are no limitations to the application of the CFREU vis-à-vis institutions, bodies, offices and agencies of the Union. In conjunction with Article 263 TFEU, a necessary consequence is that any act produced by EU institutions having legal effects vis-à-vis third parties must comply with the Charter.17 The question concerning the scope of application of the CFREU vis-à-vis EU institutions became a matter of contention during the recent economic crisis.18 Against the background of the elevation of the macroeconomic constitution into the ‘pacemaker position’,19 the CJEU’s jurisprudence in this area moved, interestingly, from an initial position of silence to one of re-affirming the duty of EU institutions to comply to the CFREU in such cases. In Pringle,20 the CJEU was for the first time presented with the opportunity to test the ­compatibility

14 Explanations on Art 51. 15 See, eg, Arts 15 or 16 TFEU. 16 See analysis below. 17 For an analysis of the situation regarding the work of agencies, see A Ward, ‘Article 51 – Field of Application’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014). 18 For cases not related to the economic crisis, see the analysis regarding Art 11 on the freedom of expression and the Art 28 on the right to collective bargaining in the present volume. 19 Tuori (n 4). 20 Case C–370/12 Thomas Pringle v Government of Ireland, Ireland and the Attorney General, judgment of 27 November 2012.

Application and Limitations  107 of the European Stability Mechanism (ESM) – an intergovernmental agreement establishing the ESM as a permanent body with the power to grant loans to Member States in need of such assistance – with EU law.21 However, the CJEU said nothing about the possible application of the CFREU to the EU ­institutions, perhaps because it had taken the view that those institutions could not adopt binding acts pursuant to the Treaty. This then probably prompted the European Commission to state that: The Commission is committed to ensuring that, when implementing EC law, Member States respect the rights enshrined in the EU Charter of Fundamental Rights. However, the programme documents are not EC law, but instruments agreed between Greece and its lenders: as such, the Charter cannot be used as a reference, and it is for Greece to ensure that its own obligations on fundamental rights are respected.22

But this was not the case with Advocate-General Kokott in Pringle, who was clear in arguing that, as an EU institution, the Commission ‘as such is bound by the full extent of European Union law, including the Charter of Fundamental Rights’.23 This appeared then to assume that the EU institutions should be bound by the CFREU, even when their actions take place outside the scope of EU law.24 Whether the CFREU applied to the EU institutions, the European Commission and the ECB, when acting in the context of the ESM, was dealt with directly in the Ledra Advertising25 and Mallis26 cases. The cases concerned, respectively, the validity of the Memorandum of Understanding (MoU)27 concluded by Cyprus during the crisis, and a Eurogroup statement that referred to the

21 Treaty Establishing the European Stability Mechanism, T/ESM 2012/en. 22 Parliamentary Questions: Answer given by Mr Katainen on behalf of the Commission, 17  September 2014, E–005633–14, . The European Parliament’s Economic Committee went even further in its Report on the Operation of the Troika: ‘Regrets that the programmes are not bound by the Charter of Fundamental Rights of the European Union, the European Convention of Human Rights and the European Social Charter, due to the fact that they are not based on Union primary law’. See European Parliament, Committee on Economic and Monetary Affairs – ­ Rapporteurs O Karas and LH Ngoc, ‘Report on the enquiry on the role and operations of the Troika (ECB, Commission and IMF) with regard to the euro area programme countries’ . 23 Pringle (n 18), Opinion of AG Kokott, para 176. 24 The view of AG Kokott was consistent with that of Committee on Constitutional Affairs of the European Parliament; in 2014, the Committee held ‘that the EU institutions are fully bound by Union law and that within the Troika they are obliged to act in accordance with fundamental rights, which, under Art 51 of the Charter of Fundamental Rights of the European Union, apply at all times’, Committee on Constitutional Affairs, Opinion, 11 February 2014, 2013/2277 (INI), para 11. 25 CJEU (GC), 20 September 2016, Joined Cases C-8/15 P to C-10/15 P, Ledra Advertising Ltd v Commission and European Central Bank. 26 CJEU (GC), 20 September 2016, Joined Cases C-105/15 P to C-109/15 P, Konstantinos Mallis and Others v European Commission and European Central Bank (ECB). 27 Ledra Advertising (n 23).

108  Aristea Koukiadaki c­ onditions attached to the related loan agreement.28 On appeal from the General Court, which had dismissed the complaints as inadmissible, AG Wahl in Ledra initially stated that: After all, Article 51(1) of the Charter does not contain any limit as to the applicability of the Charter with respect to the EU institutions, as it does for Member States. Furthermore, that provision also calls on the EU institutions to promote the application of Charter.29

However, in light of Pringle, he went on to suggest that this ‘does not mean, however, that the Commission is required to impose the standards of the EU Charter on acts which are adopted by other entities or bodies acting outside the EU framework.’30 This reasoning by AG Wahl, which was essentially antithetical to the position that fundamental and human rights obligations cannot be circumvented on the pretext of delegation of functions,31 was complementary to the functional primacy of the economic constitution. But this reading of the CFREU by AG Wahl was not shared by the CJEU. Confirming Pringle, the Court stated that the involvement of EU institutions in acts based on the ESM Treaty does not change the fact that such acts fall outside the scope of EU law. But the Court then disagreed with both the General Court and AG Wahl on the nature of the involvement of the European Commission and the ECB and the relevance of the CFREU when considering a claim for damages. According to the CJEU, the Charter is addressed to the EU institutions, including … when they act outside the EU legal framework. Moreover … the Commission is bound … to ensure that such a memorandum of understanding is consistent with the fundamental rights guaranteed by the Charter.

The Commission, when negotiating and concluding a MoU on behalf of the ESM, should live up to its role of Guardian of the Treaties and ‘refrain from signing a memorandum … whose consistency with EU law [and with the­ Charter] it doubts’.32 This development is important in that it highlights a shift in the CJEU approach, namely from reinforcing a legal vacuum via its ­ambivalence in respect of the relevance of the CFREU for the involvement of EU institutions in crisis-related measures to confirming their accountability in

28 Mallis (n 24). 29 ibid, para 85. 30 ibid, para 86. See also para 90, where AG Wahl suggested that ‘it could be argued that the Commission, far from preventing a breach of EU law, would thereby have extended the applicability of the Charter into a field of law which is not meant to be regulated by that instrument’. 31 See A Fischer-Lescano, ‘Human Rights in Times of Austerity Policy: The EU Institutions and the Conclusion of Memoranda of Understanding’ (Centre of European Law and Politics (ZERP), 2014) 9, and PA van Malleghem, ‘Pringle: A Paradigm Shift in the European Union’s Monetary Constitution’ (2013) 14 German Law Journal 141ff, 158f. 32 Para 59.

Application and Limitations  109 such instances. Given the high thresholds applicable, however, it is questionable how likely damages claims can be effective in dealing with labour rights violations.33 In both Ledra and Mallis, while the CJEU set aside the orders of the General Court relating to the actions for compensation, it decided not to uphold those actions on the merits. The lack of effectiveness is compounded by the stance adopted by the CJEU in respect of the links between the CFREU and crisis-related measures affecting labour rights, an issue to which we turn later in the analysis. C.  The CFREU and EU Member States The question of application of the CFREU at Member State level is of crucial significance for labour rights. Fundamental social rights are now part of EU primary law and should, like any legal norm of EU law, be respected and, importantly, promoted when EU law is applied by courts or authorities at national level. From the perspective of the constitutionalisation of labour rights in particular, the interplay between the Charter and the EU Member States has the capacity to reinforce or challenge the existing configuration between especially the European economic and social constitutions. Primarily reflecting concerns that the reach of EU fundamental rights at national level should not be very wide,34 ­Article 51(1) stipulates that the requirement to respect fundamental rights defined in the context of the Union is binding on the Member States only when they are implementing Union law.35 This rule, as enshrined in the CFREU, applies to the central authorities, as well as to regional or local bodies and to public organisations when they are implementing Union law.36 While the term ‘implementing Union law’ is not new, a difference can be detected with the Explanations on Article 51, which state: ‘As regards the Member States, it follows unambiguously from the case law of the [CJEU] that the requirement to respect fundamental rights defined in the context of the Union is only binding on the Member States when they act in the scope of the [EU] law’. The expression in the explanations is arguably wider than the reference to ‘implementing EU law’, which may require the existence of an EU legislative measure to be implemented. 33 It should be recalled that the European Union may incur non-contractual liability only if a number of conditions are fulfilled, namely (i) the unlawfulness of the conduct alleged against the EU institution, (ii) the fact of damage and (iii) the existence of a causal link between the conduct of the institution and the damage complained of. 34 See CJEU, 26 February 2013, C-399/11, Stefano Melloni v Ministerio Fiscal ECLI:EU:C:2013:107. 35 The CJEU has held in this respect: ‘it should be remembered that the requirements flowing from the protection of fundamental rights in the Community legal order are also binding on Member States when they implement Community rules …’, Kjell Karlsson and Others (n 1), para 37. See also Case 5/88 Wachauf [1989] ECR 2609; Case C-260/89 ERT [1991] ECR I-2925; Case C-309/96 Annibaldi [1997] ECR I-7493. 36 Explanations on Art 51.

110  Aristea Koukiadaki It is broadly accepted that the concept ‘implementing EU law’ covers all situations in which Member States fulfil their obligations under the Treaties, as well as under secondary EU law. In this respect, it is possible to identify three different situations. The first two, which concern cases in which the CFREU applies, include, first, obligations that require a Member State to take action37 and second, obligations that must be complied with when a Member State derogates from EU law.38 In the third case, EU law imposes no obligation on Member States and as such, the Charter does not apply.39 The CJEU has confirmed that the concept of ‘implementing Union law’ within the meaning of Article 51 presupposes a degree of connection between the measure of EU law and the national measure at issue, which goes beyond the matters covered being closely related or one of those matters having an indirect impact on the other. In that regard, it has been held that it is necessary to determine, inter alia, whether the national legislation at issue is intended to implement a provision of EU law, the nature of that legislation and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law, and also whether there are specific rules of EU law on the matter or rules that are capable of affecting it.40 However, a more detailed analysis of the CJEU case law across different areas provides evidence of discrepancies in the interpretation of the concept ‘implementing Union law’. As Spaventa recently argued, ‘there is a varied application of the Charter which depends on the area considered (stronger in internal market, weaker in other cases)’.41 In respect of the first category, namely where internal market interests are at stake, existing case law points to a broad conception of implementation that has assimilated the meaning of ‘implementing EU law with ‘the scope of EU law’/‘governed by EU law’, which is wider than the previous expression.42 This interpretation is based on the consideration that, due to the connection between the competence possessed by the EU and by the Member States, respectively, a strict notion of implementation may not be sufficient to guarantee the objective of uniformity.43 In contrast, in cases involving non-­internal market interests the Court has exercised considerable restraint in

37 eg Wachauf (n 33) and Case C-292/97 Karlsson [2000] ECR 2737. 38 eg Pfleger and Others, C‑390/12, EU:C:2014:281, para 36. 39 eg Annibaldi (n 33). 40 See, in particular, CJEU, 10 July 2014, C‑198/13, Julián Hernández and Others, EU:C:2014:2055, para 34 et seq, and CJEU, 6 October 2016, C‑218/15, Paoletti and Others, EU:C:2016:748, para 14 et seq. 41 See analysis by Spaventa (n 3). 42 See, inter alia, the judgments in Åkerberg Fransson (C‑617/10, EU:C:2013:105, para 19) and Delvigne (C‑650/13, EU:C:2015:648, para 26). This was the result of holding that ‘fundamental rights by the Charter must … be complied with where national legislation falls within the scope of European Union law …’. F Ferraro and J Carmona, Fundamental Rights in the European Union: The Role of the Charter after the Lisbon Treaty (European Parliament, 2015) 17. 43 Åkerberg Fransson (n 40).

Application and Limitations  111 demanding Charter compliance by national authorities.44 And it is in social policy that the effects of this approach have been felt to a large extent. In emphasising that ‘the mere fact that ‘nationallegislation … comes within an area in which the European Union has powers … cannot render the Charter applicable’,45 the Court has declined in several cases to review national measures for compliance with the Charter, on the basis that Member States were not implementing EU rules when they acted.46 What is more, the CJEU has linked fundamental rights protection to the need to protect the EU’s constitutional goals rather than laying down a floor of fundamental rights protection.47 In Hernández, a case concerning the compatibility with Article 20 CFREU of Spanish rules treating unfair and invalid dismissals differently, the CJEU clearly stated that the reason for pursuing the objective of protecting fundamental rights in EU law, as regards both action at EU level and the implementation of EU law by the Member States, is the need to avoid a situation in which the level of protection of fundamental rights varies according to the national law involved in such a way as to undermine the unity, primacy and effectiveness of EU law.48

But it is far from clear why these criteria would not be fulfilled in any case in which Charter rights, including those in the Solidarity chapter, are involved. The implications of the varied application of the CFREU for the constitutionalisation of labour rights in the EU legal system are twofold. On one hand, the adoption of a wide interpretation of the notion ‘implementing EU law’, as illustrated in the jurisprudence related to the EU internal market, has progressively acted as a facilitator to the process of reinforcing the economic institution. The case law involving Article 16 CFREU exemplifies this dimension aptly. As analysed by Veneziani in this volume, the scope of Article 51 CFEU has been enlarged to protect largely Article 16 from any derogation from the fundamental freedoms by national law that does not respect the limits envisaged by general law of Treaty. The decisions in Alemo-Herron49 and AGET Iraklis50 provide a demonstration of these issues: while national measures in these cases could be

44 See, among others, Case C‑395/15 Daouidi, ECLI:EU:C:2016:917. 45 Julián Hernández (n 38) para 34. 46 See, among others, Torralbo Marcos and Case C-117/14 Nisttahuz Poclava. The approach by the Court in such cases seems consistent with the decision in Siragusa, where the following criteria were identified for the application of the CFREU: (i) whether the national rule is intended to implement EU law; (ii) the nature of the rule and whether it pursues objectives other than those covered by EU law, even if it is capable of indirectly affecting EU law; (iii) whether there are any specific EU law rules on the matter or whether there are EU law rules that are capable of having an effect on the matter’ (see also para 37 in Julián Hernández). Additionally, the Court has stated that the CFREU would not be applicable in those situations in which in which EU law in the subject area ‘did not impose any obligation on the Member States with regard to the situation in issue in the main proceedings’ (Case C-206/13 Siragusa, EU:C:2014:126, para 26). 47 Spaventa (n 3) 21. 48 Para 47, emphasis added. 49 Case C-426/11, Alemo-Herron v Parkwood Leisure Ltd, ECLI:EU:C:2013:521. 50 Case C-201/15, AGET Iraklis v Ergasias ECLI: EU:C:2016:972.

112  Aristea Koukiadaki interpreted as enriching the original pursuit of EU legislation, the Court considered that the more protective national measure fell within the scope of EU law. In expanding the scope of Article 51 to review national measures that go beyond minimum harmonisation, the promotion of social regulation was effectively weakened by the very operation of EU law.51 But it is not only through expanding the scope of application of Article 51 in cases involving the EU internal market that the process of constitutionalisation of labour rights is somewhat eroded. The latter is also the result of a narrow interpretation of the notion by the CJEU in cases that could affect the viability of the social constitution. Contrary to Alemo-Herron and AGET Iraklis, recent CJEU case law has limited the scope of application of the Charter in situations involving potential violations of the ‘Solidarity’ chapter.52 These two dimensions operate in conjunction to reinforce the criticism that the CFREU is seen as a means to an end, namely to ensure the unity, primacy and supremacy of EU law and not to ensure a minimum standard of fundamental rights protection across the EU as a whole.53 The problematic relationship between the concept ‘implementing EU law’ and labour rights protected under the CFREU is evident when examining the CJEU case law in respect of the austerity measures adopted during the economic crisis. A number of CFREU rights were affected by such measures, including the following:54 human dignity;55 the freedom of association;56 the freedom to choose an occupation and the right to engage in work;57 non‑discrimination;58 the right to fair and just working conditions;59 the right to information and consultation;60 the right of collective bargaining and action;61 protection in the event of unjustified dismissal;62 social security and social assistance;63 health

51 On this, see also M Bartl and C Leone, ‘Minimum Harmonisation after Alemo-Herron: The Janus Face of EU Fundamental Rights Review’ (2015) 11 European Constitutional Law Review 140. 52 See, among others, AG’s Opinion in Case C‑122/15 Proceedings brought by C (ECLI:EU:C:2016:65). The case dealt with a supplementary tax imposed by Finland on pensions: it was argued that the Charter was not engaged here, as it did not restrict the free movement of workers because it did not distinguish between domestic and cross-border activities and the tax was applied uniformly regardless of the origin of the income. The CJEU arrived to the same conclusion with AG Kokkott but on the basis that the national legislation did not implement EU law nor did the dispute fall within the scope of Directive 2000/78 (ECLI:EU:C:2016:391). 53 For a valuable analysis, see Spaventa (n 3). 54 For an analysis, see Fundamental Rights Agency, The European Union as a Community of Values: Safeguarding Fundamental Rights in Times of Crisis (Luxembourg, 2013). 55 Art 1 CFREU. 56 Art 12 CFREU. 57 Art 15 CFREU. 58 Art 21 CFREU. 59 Art 31 CFREU. 60 Art 27 CFREU. 61 Art 28 CFREU. 62 Art 30 CFREU. 63 Art 34 CFREU.

Application and Limitations  113 care;64 freedom of movement and of residence.65 It was initially suggested that the Court’s emerging case law regarding issues not directly linked to the economic crisis would ‘set the mood music which the Court may eventually listen to, and heed with reference to a more supportive application of the Charter to austerity measures’.66 However, up until recently the CJEU had avoided relying on the CFREU to examine disputes concerning the compatibility of austerity measures with EU law.67 The Court’s reluctance to apply the Charter in austerity cases was incorrect even on a narrow interpretation of the definition of EU law because there had been Council measures on the basis of Articles 122 and 143 TFEU that expressly required the specific cutbacks to be made.68 Indeed, as the Court has emphasised, the term ‘implementing EU law’ ‘means that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations’.69 Of course, as Peers contends, it does not necessarily follow that the relevant national decisions were in breach of the CFREU, merely that they fell within its scope as the Member States in question are implementing EU law.70 A number of reasons could be put forward for the lack of willingness on the part of the CJEU to consider the CFREU in cases involving austerity measures. The first concerns the fact that some financial assistance programmes did not fall within EU law (eg the

64 Art 35 CFREU. 65 Art 45 CFREU. 66 C Barnard, ‘The Charter, the Court – and the Crisis’, Legal Studies Research Paper Series Paper, no 18.2013, (Cambridge, University of Cambridge, 2013) at 8. Barnard refers as an example the decisions of the Court in C-515/08, Santos Palhota [2010] ECR I-000 and C-271/08, Commission v Germany (occupational pensions) [2010] ECR I-7091. 67 See here Case C–128/12 Sindicato dos Bancários do Norte and Others v BPN – Banco ­Português de Negócios SA, OJ C151 26 May 2012; Case C–434/11 Corpul Naţional al Poliţiştilor, order of 14  December 2011; Case C–134/12 Ministerul Administraţiei şi Internelor (MAI), Inspectoratul General al Poliţiei Române (IGPR) and Inspectoratul de Poliţie al Judeţului Tulcea (IPJ) v Corpul Naţional al Poliţiştilor – Biroul Executiv Central, order of 10 May 2012; Case C–462/11 Victor Cozman v Teatrul Municipal Târgovişte [2011] ECR I–197; Case C–665/13 Sindicato Nacional dos Profissionais de Seguros e Afins v Via Directa – Companhia de Seguros SA, order of 21 October 2014; Case C–264/12 Sindicato Nacional dos Profissionais de Seguros e Afins v Fidelidade Mundial – Companhia de Seguros, SA, order of 26 June 2014. The closest it had come to getting involved in such cases was in Aziz, where it empowered Spanish courts to stop repossession claims if based on unfair terms in mortgage contracts, and thus allowed better protection of the right to housing, even though this right was not mentioned in the reasoning of the Court (Case C–415/11 Mohamed Aziz v Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa), judgment of 14 March 2013. For an analysis, see M Gonzalez Pascual, ‘Welfare Rights and Euro Crisis: The Spanish Case’ in C Kilpatrick and B De Witte, Social Rights in Times of Crisis in the Eurozone: The Role of Fundamental Rights’ Challenges (EUI, 2014)). 68 S Peers, ‘Towards a New Form of EU Law?: The Use of EU Institutions outside the EU Legal Framework’ (2013) 9 European Constitutional Law Review 37. 69 Emphasis added. See, inter alia, the judgments in Åkerberg Fransson (C‑617/10, EU:C:2013:105, para 19); Pfleger and Others (C‑390/12, EU:C:2014:281, para 33); and Delvigne (C‑650/13, EU:C:2015:648, para 26). 70 See also, Spaventa (n 3).

114  Aristea Koukiadaki programmes that have been implemented on the basis of the EFSF, the ESM and bilateral loan agreements, as in the case of Greece). In this context, the Court held that the conclusion of the ESM does not infringe the principle of effective judicial protection under Article 47 CFREU because the Member States are not implementing Union law, within the meaning of ­Article 51(1) of the Charter, when they establish a stability mechanism such as the ESM where the [TEU and TFEU] do not confer any specific competence on the Union to do so.71

Similarly, the European Commission argued that when giving effect or implementing these memoranda Greece was not ‘implementing’ EU law for the purposes of Article 51 and as such the Charter did not apply.72 A second reason concerns the adequacy of the link between a relevant EU source and a Member State action.73 For instance, in Sindicato dos Bancários do Norte and Others v BPN – Banco Português de Negócios, SA,74 the Court rejected the request for a preliminary ruling on the basis that the provisions of the Portuguese Act under consideration were not implementing Union law in the sense of Article 51(1).75 In a similar manner, the Court found that it lacked jurisdiction in two cases concerning the compatibility with the fundamental rights to property, equality and non-discrimination76 of Romanian legislation that had reduced public sector pay by 25 per cent.77 While an inadequate drafted order for reference, which had failed to make expressly clear the links between the national reforms and bailout conditionality,78 could be important here, this approach by the CJEU is contrary to its established case law, under which it has been generous in reconstructing the relevant EU issues and refusing to consider the issues only when the matter is not connected in any way with EU law.79 Further, the Court failed to consider the potential link between poor framing of the references to problems of accessibility and comprehensibility that stem from the complexity of the financial assistance programmes.80

71 Pringle (n 18). 72 See reference by Spaventa (n 3) 29. 73 On this, see C Kilpatrick, ‘Are the Bailouts Immune to EU Social Challenge Because They Are Not EU Law?’ (2014) 10 European Constitutional Law Review 393. 74 See n 65 above. 75 While Case C–128/12 (n 46) concerned measures that were introduced some months before the Council Decision implementing the MoU was adopted, the Court followed the same approach, ie found no link to EU law, in two subsequent cases involving Portugal (C–264/12 and C–665/13 (both at n 46)), which directly concerned measures adopted on the basis of Council Decisions. 76 Arts 17, 20 and 21 CFREU, respectively. 77 Case C–434/11 and Case C–134/12 (both at n 46). 78 Barnard (n 64) 12. 79 Kilpatrick (n 71) 419. 80 C Kilpatrick, ‘On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts’ (2015) 35 OJLS 325.

Application and Limitations  115 Some evidence of reconsideration was provided in the Tribunal de Contas case81 concerning the compatibility of a salary reduction of judges in ­Portugal with the principle of ‘judicial independence’ set out in both Article 19(1) TEU and Article 47 CFREU. According to the referring court, the measures for temporarily cutting public sector pay were adopted within the framework of EU law or, at least, are European in origin, on the ground that those requirements were imposed on Portugal’s government by EU decisions granting, in particular, financial assistance to that Member State.82 Briefly, the Court found that the order for reference contained sufficient information to enable it to understand why the referring court was seeking an interpretation of the second subparagraph of Article 19(1) TEU and Article 47 of the Charter for the needs of the main proceedings.83 But in fact the Court emphasised early on in its judgment that it was Article 19(1) TEU that could be relied upon in national situations, irrespective of whether the Member States are implementing EU law within the meaning of Article 51(1) CFREU.84 Florescu85 better exemplifies the change in the Court’s approach. The case concerned the compatibility of Romanian legislation – introduced during the financial and economic crisis – prohibiting the combining of a public retirement pension with employment income from a public institution with Articles 17, 20, 21 and 47 CFREU. Having accepted that the relevant Memorandum of Understanding may be subject, as an act of an EU institution,86 to interpretation by the Court, the CJEU went on to hold that the CFREU was applicable in the issue at hand. The scope for discretion left in the Memorandum of Understanding to Romania did not negate the finding that the adoption of national measures in pursuance of the Memorandum was regarded as ‘implementing that law, within the meaning of Article 51(1) CFREU’.87 The objectives in both ­Decision  2009/459, which was addressed to Romania, and the Memorandum were found to be ‘sufficiently detailed and precise to permit the inference that

81 C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas. The AG considered that because the referring court had supplied more explicit, albeit relatively summary, information as to the existence of such implementation of EU law, the Court’s alleged lack of jurisdiction over the Portuguese government and the Commission was not manifestly apparent. 82 ibid, para 14. 83 ibid, para 21. 84 This can be read as making it possible for national litigants to rely on the principle of judicial independence in situations in which the Charter may not be applicable by relying on Article 19 TEU; L Pech and S Platon, (2018), ‘Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses’, http://eulawanalysis.blogspot.co.uk/2018/03/rule-of-law-backsliding-in-eu-court-of.html. On Art 47 more generally and its link to the employment relation, see the analysis in the present volume. 85 Case C-258/14, Eugenia Florescu and Others v Casa Judeţeană de Pensii Sibiu and Others, ECLI:EU:C:2017:448. 86 Para 36. 87 Para 48. See to that effect CJEU, 21 December 2011, C-411/10 and C-493/10, NS and Others, EU:C:2011:865, paras 65 to 68.

116  Aristea Koukiadaki the purpose [of the national legislation was] to implement both the ­memorandum and that decision, and thus EU law, within the meaning of Article 51(1) of the Charter’.88 But, as we shall see below, the application of the CFREU has not (yet) been translated into an effective mechanism for challenging the substance of the labour rights violations associated with the economic crisis. D.  The Question of the Horizontal Application of the CFREU The potential function of the CFREU in constitutionalising labour rights is not restricted to its application vis-à-vis EU institutions and EU Member States but also extends to its role in the application of EU fundamental rights in the context of proceedings between private parties. The answer to this question, namely the extent to which the CFREU can have horizontal effect, would be a crucial determinant of whether labour rights have acquired a ‘fundamentally constitutive status’89 in the EU legal order. Answering this in the affirmative could involve any or all of the three levels of horizontality: the first involving the imposition of direct fundamental rights obligations on private parties (‘direct effect’), the second dealing with the indirect application of fundamental rights to inter-individual disputes through judicial interpretation (‘indirect effect’) and/ or the third creating de facto obligations to private parties through obligations imposed formally on the state (‘state-mediated effect’ or ‘positive obligations’).90 It is Article 51(1) CFREU that may have interpretative value in respect of horizontality in all the senses described above. Of course, direct horizontality in the case of the Charter may not necessarily imply automatically the effective constitutionalisation of labour rights. Instead, the recognition of horizontal effect may have perverse consequences in exposing even more social rights to the dominance of the economic constitution by, for example, prioritising market integration interests to the detriment of social regulation. But such an assumption may be far from straightforward. The horizontal effect of fundamental

88 Para 48. 89 See C Thornhill, ‘The Formation of a European Constitution: An Approach from HistoricalPolitical Sociology’ (2012) 8 International Journal of Law in Context 354, 382. For an alternative view on the risks of direct horizontal effect in the case of fundamental rights, see H Collins, ‘The Constitutionalisation of European Private Law as a Path to Social Justice?’ in HW Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Cheltenham, Edward Elgar, 2011). Collins provides a case for a preference in favour of indirect horizontal effect as the method for implanting constitutional values into private law. 90 Direct horizontality binds individuals, indirect horizontality binds courts in their interpretation of the law and positive obligations bind state authorities. For an insightful analysis of the issues around EU fundamental rights, see E Frantziou, ‘The Horizontal Effect of the Charter of Fundamental Rights of the EU: Rediscovering the Reasons for Horizontality’ (2015) 21 European Law Journal 657, 662.

Application and Limitations  117 rights, especially in respect of social ones, can constitute a valuable tool for pursuing social justice by modifying the substance of the employment relation, in the case of labour rights, to protect the ‘weaker party’.91 Besides, any limit to the horizontal application of the CFREU has to be read in the broader context of EU labour law: EU labour law consists, on one hand, almost exclusively of Directives, which have no horizontal direct effect as such. On the other hand, a particular characteristic of the employment relation is that it is horizontal in nature, involving purely private disputes.92 Inasmuch as the CJEU has ensured the binding effect of Directives between individuals and the State – eg where the State is the employer – it would be possible to argue that, owing to the relationship of subordination, a similar case, ie in favour of horizontal application, could be made in respect of the relationship between workers and employers in the private sector. Article 51 CFREU does not explicitly include or indeed exclude horizontal effect as such.93 But there is evidence that in respect of social rights particularly, the approach adopted by the CJEU oscillates between explicitly acknowledging and denying the existence of such effects.94 It is true that in cases involving discrimination concerning, for instance, age, the Court has allowed for the possibility to invoke EU fundamental rights against a private party, even when the matter had been brought within the scope of EU law by virtue of a Directive, which in itself cannot be invoked against a private party.95 The justiciability of social rights in such cases has been made possible by the development of a formula that elevates the prohibition of discrimination as a general principle of EU law and not EU social rights as such.96 This formula has not been used to extend the horizontal scope of the Charter to other rights in the social domain, however.97 The Grand Chamber’s AMS decision is instructive in this respect: the CJEU held that in order that Article 27 CFREU be effective it must be given

91 A Seifert, ‘L’effet horizontal des droits fondamentaux’ (2012) 48 Revue Trimestrielle de Droit Européen 801. 92 A Kornezov, ‘Social Rights, the Charter and the ECHR: Caveats, Austerity, and Other Disasters’ in F Vandenbroucke, C Barnard and G De Baere (eds), A European Social Union after the Crisis (Cambridge, Cambridge University Press, 2017). 93 Note that specific Charter articles could be read as suggesting horizontal effect: eg Art 23 CFREU refers to equality between men and women ‘in all areas’; similarly Art 24(2) covers actions relating to children ‘whether taken by public authorities or private institutions’. 94 It would be possible to read Art 51 as recognising that the Charter addresses also the Court itself as an EU institution and as such it is for the latter to decide whether and how to give horizontal effect (on this, see S Douglas-Scott and N Hatzis, ‘EU Law and Social Rights’ in S Douglas-Scott and N Hatzis (eds), Research Handbook on EU Law and Human Rights (Cheltenham, Edward Elgar, 2017)). 95 CJEU, 22 November 2005, C-144/04, Mangold and CJEU, 19 January 2010, C-555/07, Seda Kücükdeveci v Swedex GmbH & Co KG. 96 Kornezov (n 90) 426. 97 See in this respect the contribution by K Lörcher in this volume.

118  Aristea Koukiadaki more specific expression in European or national law and as such it could not be invoked between private parties in a situation that fell within the scope of a Directive.98 According to AG Trstenjak, such a conclusion – namely against h ­ orizontality – is consistent with the idea that individuals cannot respect the legal reserve provided for in Article 52(1) of the Charter (‘Any limitation of the exercise of the rights and freedoms recognized by this Charter must be provided for by law’). This condition, which is specific to the rule of law, and to which fundamental rights, can, by its nature, only be addressed to the Union and its Member States as representatives of the public authorities.99

But such an interpretation sits uneasily with Article 6(1) TEU, which specifies that the Charter has ‘the same legal value as the Treaties’, with rights included in the latter category, namely the Treaties, being traditionally afforded horizontal application.100 Further, a reading against the horizontal application of Charter rights seems to disregard the importance of the language of the right in question. As highlighted by AG Cruz Villalon in respect of Article 27 CFREU: ‘the heading of the article in question is “Workers’ right to information and consultation within the undertaking”, the last detail meaning that it must be accepted that “the undertaking” is in some way involved in the effectiveness of that right’.101 What is more, ‘the need to protect the rights and freedoms of others’ is explicitly mentioned in Article 52(1), which concerns limitations on Charter rights, reflecting the position that the Charter may be applied in horizontal situations. Hence, it is not because of their status as rights themselves that protection under the Charter may be offered at horizontal level; it is only when these are recognised as incorporating general principles of EU law that such horizontality can be afforded by the CJEU. This is problematic as it restricts the scope of horizontality for rights under the Solidarity chapter. But it is also problematic because it operates in conjunction with the openness of the Court regarding the application of the Charter and in particular its economic fundamental rights, such as Articles 15, 16 and 17 CFREU in horizontal situations.102 In contrast to EU labour law, these economic rights are also closely connected

98 Equally importantly, the decision seemed to dispute whether Charter provisions that make reference to national laws and practices (eg Arts 28, 30 and 34) or really any of the rights contained in the Solidarity chapter, could be applied horizontally. 99 Conclusions of AG Trstenjak, 8 September 2011, ECLI:EU:C:2011:559, point 83 (CJEU, 24 January 2012, C-282/10, Dominguez, ECLI:EU:C:2012:33). Cf Conclusions of AG Cruz Villalon, 18 July 2013, ECLI:EU:C:2013:491, points 28 to 31 (CJEU, 15 January 2014, C-176/12, Association de médiation sociale, ECLI:EU:C:2014:2). 100 Case C-43/75, Defrenne v Sabena (No 2) [1976] ECR 455. 101 See n 97 above. 102 Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) [2011]ECR I-11959; Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog [2012]); Case C-510/10 DR and TV2 Danmark A/S v NCB – Nordisk Copyright Bureau; and Case C-12/11 Denise McDonagh v Ryanair Ltd [2013].

Application and Limitations  119 to the fundamental freedoms enshrined within the TFEU and, similar to the­ fundamental/economic freedoms, they may be relied on by individuals in horizontal ­situations.103 Some  evidence of reconsideration was provided in ­Egenberger104 and more importantly in Bauer et al105 In Egenberger, the CJEU held that Article 47 CFREU is a right that is sufficient ‘as such’, ie even without further elucidation in secondary l­egislation.106 It was in Bauer et  al that the CJEU dealt directly with the question of horizontal effect in respect of social rights. The cases dealt with the extent and nature of the right to paid annual leave, as provided in Article 31(2) CFREU. Having emphasised that the Charter, according to Article 6(1) TEU, has the same value as the Treaties and on the basis that Article 51(1) CFREU cannot be interpreted as precluding the horizontal application of fundamental rights, the Court went on to find that Article 31(2) CFREU is sufficient in itself to provide redress to individuals in private disputes.107 In line with Egenberger, the Court then held that if the court is unable to interpret the national legislation at issue in a manner ensuring its compliance with Article 31(2), it will be required in a situation such as that in Bauer et al. to ensure the judicial protection for individuals and to guarantee the full effectiveness by disapplying if need be that national legislation.108 While the recent decisions suggest that the Court is now more willing to recognise the normative nature of social rights, questions still remain regarding other rights in the Solidarity chapter that pertain particularly to the collective dimension of the employment relation. This is because in distinguishing Article 27 CFREU on workers’ consultation (at issue at AMS) from Article 31(2) CFREU on the basis of the reference in the former to ‘the cases and … conditions provided for by Union law and national laws and practices’, the Court confirmed the application of a dualist approach vis-a-vis the issue of horizontality of Charter rights. The interpretation of all social rights on the basis of international instruments and constitutional traditions common to EU  Member States in conjunction with relying on the principle of ‘effet utile’ would go some way towards redressing this imbalance. In light of Mangold, Egenberger and Bauer et al, the recognition of the horizontal effect of fundamental social

103 See Alemo-Herron (n 47). However, Art 16 should be considered a ‘principle’ only in terms of Art 52(5) CFREU and as such has no legal supremacy over other fundamental rights recognised in the Charter. What is more, unlike a number of rights in the Solidarity chapter, Art 16 CFREU is not subject to any specific limitation clause apart from that of Art 52 CFREU (see analysis below). 104 CJEU, 17 April 2018, C-414/16, Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, ECLI:EU:C:2018:257. 105 C-569/16, Stadt Wuppertal and Volker Willmeroth als Inhaber der TWI Technische Wartung und Instandsetzung Volker Willmeroth e. K. v Maria Elisabeth Bauer and Martina Broßonn, 6 November 2018; see also cases C-619/16, Sebastian W.  Kreuziger v  Land Berlin, 6 November 2018 and Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Tetsuji Shimizu, 6 November 2018. 106 Para 78 of the decision. 107 Para 85. 108 Para 92.

120  Aristea Koukiadaki rights would go some way towards redressing the imbalance currently existing between the economic and social constitutions of the EU. III.  ARTICLE 52(1) LIMITATIONS UNDER THE CFREU

Article 52(1) CFREU is the first limitation clause on fundamental rights at the EU (Treaty) level.109 Unlike the ECHR110 but similar to the (revised) European Social Charter,111 Article 52(1) constitutes a ‘genuine limitation clause’, setting out the conditions that every limitation on the exercise of the rights and freedoms recognised by the Charter must fulfil in order to comply with EU law. In this respect, the general requirements are reinforced by the introductory word ‘only’, requiring in turn a strict examination.112 Following through the ECHR model, no limitation is allowed under the CFREU regarding the rights under Title I, namely Articles 1–5 on human dignity,113 the right to life, the right to the integrity of the person, the prohibition of torture and inhuman or degrading treatment or punishment and the prohibition of slavery and forced labour.114 Further, the wording of Article 52(1) itself has been inspired by the case law of the CJEU on the protection of fundamental rights, which in turn has drawn on the case law of the ECtHR. An issue here is whether to use an objective or subjective assessment in order to characterise a rule as a limitation. In C-383/13 MG and NR, AG Jääskinen argued that the concept of limitation referred to in Article 52(1) must be regarded as an objective concept. Thus any provision of EU law, or of national law implementing EU law, which, de jure or de facto, is liable to limit the exercise of the rights and freedoms recognised in the Charter, may be subject to an assessment of its compatibility with the Charter and, accordingly, of whether it is liable to constitute a limitation within the meaning of Article 52 CFREU.115 Crucially, any such assessment should take place in the context of the positive obligation

109 X Groussot and GT Petursson, ‘The Emergence of a New Constitutional Framework?’ in S de Vries, U Berniz and S Weatherill (eds), The EU Charter of Fundamental Rights as a Binding Instrument (Oxford, Hart Publishing, 2015). 110 But note that Art 52(1) CFREU has the same wording as Arts 8(2) and 10(2) ECHR. 111 Art G. For an analysis, see A Koukiadaki, ‘Article G’ in N Bruun, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017). 112 On this, see n 5 above. 113 On this, see the analysis on Art 1 CFREU in this volume. 114 See, to that effect, Schmidberger, C‑112/00, EU:C:2003:333, para 80, which refers to the right to life or the prohibition of torture and inhuman or degrading treatment or punishment. It is generally accepted that the Charter does not state that any of the Charter articles may be limited; it rather sets out rules that apply if those rights are limited; S Peers and S Prechal, ‘Article 52 – Scope and Interpretation of Rights and Principles’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1469. 115 Para 80.

Application and Limitations  121 of both EU institutions and EU Member States, when implementing EU law, to ‘promote the application’ of the Charter, as set out under Article 51 CFREU.116 This could imply the existence of a principle of ‘non-regression’ in relation to rights guaranteed under the Charter and such an interpretation by the CJEU would be consistent with the human rights logic of the Charter itself.117 As discussed in the introduction, the incorporation of the Charter in the juridical constitutional structure of the EU can be seen as allowing for the partial or even complete independence of the social constitution, opening up space simultaneously for relations of conflict between the economic and the social constitutions.118 In delineating the scope for limitations, Article 52(1) may be interpreted as a conflict resolution mechanism advanced by the Charter itself. As such, its role is crucial not only in terms of managing the conflicts in the juridical field stricto sensu but also in terms of what the outcome of such processes implies for the conflict between the different constitutions. It is before the CJEU that such constellations of relationships are played out. Importantly, the CJEU has to date not made consistent reference to Article 52(1) CFREU;119 in only five cases involving social policy, all adjudicated since 2013, has reference has been made to Article 52(1).120 What is more, even where the Court referred to the provision, it is rare that it went through an analysis of each of the elements contained therein.121 This should not be interpreted as implying, however, that there is no need to engage in a clear and consistent way with limitations of Charter rights on the basis of Article 52(1) CFREU. The next sections go on to examine specific aspects of Article 52(1) CFREU in order to identify the function of the provision in the framing of clashes between the multiple constitutions of the EU.

116 See analysis above. 117 The idea that once a human right is recognised it cannot be restrained, destroyed or repealed is shared by all major international instruments on human rights (Universal Declaration of Human Rights, 1948, Art 308; European Convention on Human Rights, 1950, Arts 17 and 539; Art 5 of the two 1966 human rights covenants, namely the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. 118 Tuori (n 4). 119 For instance, there is no reference in Test Achats or Deutsches Weint, which were similar to the Volker case (see Groussot and Petursson, n 109 above). 120 C-27/16, Marinkov: Directives 2000/78 / EC and 2006/54 (manifest inadmissibility); Anonymi Geniki Etairia Tsimenton Iraklis (AGET Iraklis) v Ypourgos Ergasias, Koinonikis Asfalisis kai Koinonikis Allilengyis, ECLI:EU:C:2016:972; C-258/14 Florescu and Others vs Casa Judeţeană de Pensii Sibiu and Others, ECLI:EU:C:2017:448; Leopold Schmitzer v Bundesministerin für Inneres, ECLI:EU:C:2014:2359 (the Court did not go on to consider Article 52(1); Case C‑529/13 Georg Felber v Bundesministerin für Unterricht, Kunst und Kultur, ECLI:EU:C:2015:20 (the Court did not go on to consider Article 52(1)). 121 The provision can be broken down into distinct ‘analytical stages’, as analysed by AG Sharpston in Volker, the first time the Court relied upon Article 52(1) (para 87). These include that limitations ‘must be provided for by law’, must be the ‘subject of proportionality’ and ‘must be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.

122  Aristea Koukiadaki A.  ‘Provided for by Law’ The term ‘provided for by law’ is consistent with the principle of legality, which suggests that all limitations on human rights should be established by general rule.122 It did not constitute part of the CJEU’s standard approach in preCFREU case law but was well known from the ECHR and its interpretation by the ECtHR. Under this, a limitation ‘provided for by law’ must meet three cumulative conditions: the limitation must have some basis in domestic law (written or unwritten), the persons concerned must be able to know those limitations in advance and the limitations must be foreseeable. In analytical terms, the notion does not consist only of a formal requirement regarding the existence of a legal basis but relates also to the ‘quality of the law’ itself.123 The latter requires that any limitation, interference or restriction must previously have been the subject of a legal framework, at least in the substantive sense of the term, which is sufficiently precise having regard to the objective it pursues; that is, in accordance with minimum requirements. This may include, for instance, considering the issue of foreseeability and accessibility, eg in cases of successive changes in legislation in a short period of time, as was the case during the economic crisis.124 Given the function of the notion, namely that it constitutes, inter alia, a basis for limiting rights protected under the Charter, particular attention should be paid to clearly delineating its nature and scope. As highlighted by AG Cruz Villalon, this aspect of the question is, in my view, unavoidable and takes precedence over any other. In the absence of ‘law’ within the meaning of Article 52(1) of the Charter, it is not in fact necessary to examine, in turn, the conditions to which any limitation on the exercise of the rights and freedoms recognised by the Charter is subject and in particular the condition of proportionality.125

But to date the Court has made only infrequent reference to this requirement.126 Where explicitly considered, case law related invariably to alleged breaches of the Charter by EU and not to national law.127 A potential explanation for the Court’s silence in respect of Member State measures may lie in the distinction between a review of EU measures and national measures in light of fundamental rights: in the latter case, technical difficulties related to the source of the limitations, which may not necessarily be statutory law, and the acceptance of the

122 OM Garibaldi, ‘General Limitations on Human Rights: The Principle of Legality’ (1976) 17 Harvard International Law Journal 503. 123 See, among others, ECtHR, Leander v Sweden [1987] no 9248/81, Series A no 116, para 50. 124 For the ECtHR case law recognising this, see, for instance, Tymoshenko v Ukraine, app no 49872/11, ECtHR final judgment of 30/07/2013, paras 80–85. 125 AG Villalon, Opinion in Case C-70/10 Scarlet Extended SA, delivered on 14 April, para 37. 126 Groussot and Petursson (n 109) 139. 127 Peers and Prechal (n 114) 1471. For a recent explicit reference to the term, see Case C‑190/16, Werner Fries v Lufthansa CityLine GmbH, ECLI:EU:C:2017:513.

Application and Limitations  123 horizontal application of the fundamental provisions of EU law, may account for the lack of application of the ‘provided for by law’ condition in cases concerning a review of Member States’ measures.128 These, however, should not absolve the responsibility of the CJEU to confirm whether the ‘quality of law’ criterion is satisfied even in these cases.129 Case law involving breaches of the Charter by EU law points to an amplification of the scope for the imposition of limitations on Charter rights: while the Court has held, among other things, that an EU act of individual application may not by itself impose limitations on the exercise of CFREU rights,130 it has accepted that limitations grounded in a Council Regulation must be considered to be ‘provided for by law’.131 What is more, where the Court has verified whether or not the requirement is fulfilled, it has done this in a ‘thin manner’,132 not testing the quality of the law as such133 and, more fundamentally, not confirming whether an assessment of the quality of the law is actually required when invoking Article 52(1) CFREU.134 To date, only AG Cruz Villalon has discussed the condition in detail. Relying on the rich ECtHR case law,135 he emphasised in Scarlet Extended136 the ‘quality of the law’ doctrine and went on to suggest that this case law of the ECtHR must be taken into consideration by the CJEU when interpreting the scope of the corresponding provisions of the Charter.137 In light of Article 52(3) CFREU, evaluating the ‘quality of law’ should not be seen simply as a case of taking into consideration ECtHR case law; the latter

128 On this issue, see the insightful discussion in Groussot and Petursson (n 109) 140. 129 On this, see Peers and Prechal (n 114). 130 Case C-407/08 P Knauf Gips v Commission, [2010] ECR-I 6371. 131 CJEU, 9 November 2010, Joint Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert. 132 Groussot and Petursson (n 109) 139. 133 For simple ‘mentions’ of the condition, see, inter alia, Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, para 19; Case 85/87 Dow Benelux v Commission [1989] ECR 3137, paras 30 et seq; Case C‑368/95 Familiapress [1997] ECR I‑3689, para 26; Case C‑60/00 Carpenter [2002] ECR I‑6279, para 42; and Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6375, para 91; for a ‘review’ of the condition, see Volker und Markus Schecke and Eifert, para 66. See also the Opinion of Advocate General Kokott in Promusicae, point 53. 134 It has not indicated how in such cases responsibility should be divided between the EU and national level, either; on this, see Peers and Prechal (n 114) 1474. 135 The condition that any limitation must be ‘provided for by law’ therefore means, according to the case law of the ECHR, that the action of the public authorities must observe the limits defined in advance by the rules of law, which ‘imposes certain requirements which must be satisfied both by the rules of law themselves and by the procedures designed to impose effective observance of those rules’; J-Y Morin, ‘La Prééminence du Droit dans l’Ordre Juridique européen’ in Theory of International Law at the Threshold of the 21st Century. Essays in Honour of Krzysztof Skubiszewski (Leiden, Kluwer Law International, 1996) 643. 136 Paras 93–100. 137 Para 100. On its part, the Court seemed in that case to have dealt with the ‘quality of law’ criterion through the application of the proportionality principle. For recent ECtHR case law dealing with the issue, see Veniamin Tymoshenko and Others v Ukraine, no 48408/12 and Antović and Mirković v Montenegro, no 70838/13.

124  Aristea Koukiadaki should rather be considered to lay down a floor of standards on which the CJEU case law can only improve. B.  Legitimate Objectives to be ‘Genuinely’ Met Article 52(1) recognises two different types of legitimate objective: the first concerns ‘objectives of general interest recognised by the Union’ and the second is objectives whose aim is to ‘protect the rights and freedoms of others’.138 In contrast to the ESC and the ECHR, no reference is made to a ‘democratic society’ but this arguably applies anyway as the EU is ‘founded on’ respect for democracy, human rights and the rule of law.139 However, the Charter goes further than the ECHR in explicitly requiring that the requirements ‘genuinely’ meet objectives, thus introducing an additional hurdle when considering the nature of permissible limitations.140 As such, it is not adequate simply to refer to certain objectives; instead, a separate and in-depth analysis is required of the legal but also the factual situation.141 Such an interpretation is consistent with the general requirement that limitations are permitted only in exceptional circumstances and that they should be interpreted narrowly so as not to risk the weakening of the fundamental rights recognised in the Charter. However, case-law evidence seems to suggest that such an analysis of the factual situation, if it takes place at all,142 does so predominantly in the context of alleged breaches of the Charter by EU law, not by national law. A specific consideration is the type of ‘objectives of general interest recognised by the Union’, which might be used to justify a limitation of Charter rights. The explanations to Article 52 CFREU are at best confusing, as they refer, among other things, to objectives protected by Article 35(3) TFEU, which does not exist, and to the Karlsson case,143 which did not concern equal treatment of human beings but between EU Member States.144 The notion can be sub-divided into two types: the first concerns the EU’s objectives, such as those under Article 3 TEU, and the second concerns the interests of the EU Member

138 Certain measures may fulfil both objectives; eg the protection of national security and public order has been found to meet an objective of general interest recognised by the European Union but also contribute to the protection of the rights and freedoms of others. Art 6 of the Charter states in this regard that everyone has the right not only to liberty but also to security of person (see, to that effect, C‑293/12 and C‑594/12 Digital Rights Ireland and Others, EU:C:2014:238, para 42). 139 Art 6 TEU and Preamble to the CFREU. 140 See Kollonay-Lehoczhy, Lörcher and Schömann (n 5) 80. 141 See also the reference to this in other language versions: it is ‘tatsächlich’ in German and ‘­effectivement’ in French. 142 The Court does not tend to make references to the adverb ‘genuinely’ when going on to discuss whether an interference meets an objective of general interest or serves objectives whose aim is to ‘protect the rights and freedoms of others. 143 CJEU, Case C-292/97 Karlsson and Others [2000] ECR I-2737. 144 For a critical review, see n 5 above.

Application and Limitations  125 States.145 Contrary to the generally accepted requirement in human rights jurisprudence that rights’ limitations should be narrowly defined, the Court has adopted a broad approach when qualifying an objective as being ‘of general interest recognised by the Union’.146 The latter includes, among other things, the protection of public health and security,147 the fight against international ­terrorism148 and against serious crime,149 the avoidance of unauthorised use of internal documents in judicial proceedings150 and the establishment of a common organisation of the market.151 The objective of ensuring the ­stability of the banking system of the euro area as a whole152 and that of reducing public sector wage costs and reforming the pension system153 were also recently considered to fall within this category in disputes involving austerity measures. However, it is questionable whether the interpretation of general objectives as incorporating purely economic grounds should be accepted given the d ­ elineation of Article 52(1) CFREU and the fact that the promotion of the national economy or its proper functioning cannot serve as justification for obstacles prohibited by the Treaty.154 The acceptance of such considerations by the CJEU when considering limitations on Charter rights provides a further illustration of the framing function of the juridical constitution as serving the basic objective of furthering policy-oriented economic rights to the detriment of principle-based fundamental rights.155 The second type, ie protecting the rights and freedoms of others, covers not only fundamental rights of third parties but also all rights provided to them by EU law (eg Treaty provisions on free movement and Union citizenship).156 ­Article 52(1) thus provides for a vertical and horizontal dimension to limitations of Charter rights,157 encompassing a ‘conflict of rights’ scenario.158 The case law in this respect appears problematic: while in certain cases, reference is made

145 Peers and Prechal (n 114) 1475. 146 Lenaerts (n 1) 391. 147 Case C-293/97 Standley and Others [1999] ECR I-2603. 148 See, to that effect, Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission EU:C:2008:461, para 363, and Cases C‑539/10 P and C‑550/10 P Al-Aqsa v Council EU:C:2012:711, para 130. 149 See, to that effect, Case C‑145/09 Tsakouridis EU:C:2010:708, paras 46 and 47. 150 See, to that effect, orders of 23 October 2002, Austria v Council, C‑445/00, EU:C:2002:607, para 12; of 23 March 2007, Stadtgemeinde Frohnleiten and Gemeindebetriebe Frohnleiten, C‑221/06, EU:C:2007:185, para 19. 151 Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz, 13 December 1979. 152 See, to that effect, CJEU, 20 September 2016, Joined Cases C‑8/15 P to C‑10/15 P, Ledra Advertising and Others v Commission and ECB, EU:C:2016:701, para 69 and the case law cited. 153 Florescu, para 56. 154 See to that effect, in particular, judgments of 5 June 1997, C‑398/95, SETTG, EU:C:1997:282, paras 22 and 23; of 6 June 2000, C‑35/98, Verkooijen, EU:C:2000:294, paras 47 and 48; and of 4 June 2002, C‑367/98, Commission v Portugal, EU:C:2002:326, para 52 and the case law cited. 155 On this, see analysis in the introduction and Tuori (n 4). 156 See here Viking (n 2). 157 Lenaerts (n 1) 392. 158 Peers and Prechal (n 114) 1475.

126  Aristea Koukiadaki to the notion, albeit without expressly identifying the specific rights and freedoms involved,159 in other cases no attempt is made to clarify whether particular considerations fall under the ‘general objectives’ or the ‘rights and freedoms of others’ categories. In general, the term ‘rights and freedoms of others’ has been interpreted as encompassing rights and freedoms ranging from the right to privacy and the right to intellectual property to the right to an effective remedy, freedom of expression and freedom to carry out a business.160 This area has raised a number of issues in respect of the mechanisms used to resolve such conflicts and the next section turns to examine these issues in detail. C.  Balancing and the Proportionality Principle With the exception of Title I, the Charter does not stipulate a hierarchy of rights; as such, it is before the CJEU that such contestations are to be resolved. The dominant approach used by the Court so far has been to strike a ‘fair balance between the various fundamental rights recognised by the EU legal order’.161 The CJEU’s most recent endorsement of the balancing exercise was provided in Egenberger,162 illustrating at the same time growing divergence from the approach recently adopted by the ECtHR in cases involving similar issues.163 The practice of balancing is expected to justify the outcome of a case in a rational way by means of a well-reasoned judgment.164 However, it has been described as an irrational and illegitimate renunciation of law in favour of a largely arbitrary judicial discretion, difficult to justify according to the ideals of democracy, respect for human rights, and the rule of law and therefore, ripe for elimination from the legal process.165

159 See Joined Cases C-468/10 and C-469/10 ASNEF. 160 For an analysis, see Peers and Prechal (n 114). 161 See ex multis, C‑275/06, Promusicae, EU:C:2008:54; Promusicae, C‑70/10, Promusicae, EU:C:2011:771; Promusicae, C‑461/10, Promusicae, EU:C:2012:219; C‑619/10, Trade Agency, EU:C:2012:531; C‑544/10, Deutsches Weintor, EU:C:2012:526; Schmidberger (EU:C:2003:333); and C‑271/08, Commission v Germany, EU:C:2010:426. 162 Egenberger (n 104). 163 See R McCrea, ‘Singing from the Same Hymn Sheet? What the Differences between the ­Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the Secular State’ (2016) 5(2) Oxford Journal of Law and Religion 183–210, 198–99. An analysis entailing the balancing of competing rights was notable as well in CJEU, 14 March 2017, C‑157/15, Samira Achbita Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions, EU:C:2017:203. 164 R Alexy, A Theory of Constitutional Rights (Oxford, Oxford, University Press, 2010) 102. 165 X Groussot and G Thor Petursson, ‘Balancing as a Judicial Methodology of EU Constitutional Adjudication’ in GT Petursson, S de Vries and X Groussot (eds), Balancing Fundamental Rights with the EU Treaty Freedoms: The European Court of Justice as ‘Tightrope’ Walker (Leiden, Europa Institute, 2012) 53.

Application and Limitations  127 Given in particular that contestations between different types of rights may in fact disguise conflicts between different constitutions,166 it is essential to further break down the analysis of the balancing exercise. This involves primarily how the balancing works out and secondly where this balancing takes place, namely whether national courts or the CJEU itself is tasked with balancing the relevant rights. In respect of how balancing works, the ‘balancing exercise’ pretty much amounts to exercising the principle of proportionality. Drawn from the field of administrative law and now connected to the wave of liberal constitutionalism,167 proportionality is valued for its ability to rationalise judicial decision-making. It is commonly used to assess whether a legitimate aim of law provides sufficient benefit to justify interference with a protected right. Where two rights compete, the application of proportionality seeks to ensure that any interference with both rights should be minimised, according to a test of necessity.168 In this sense, it constitutes a ‘conflict rule’ that determines the outcome between competing interests.169 Even though proportionality was not explicitly stipulated in the preLisbon EU treaties, it was long recognised and applied in the CJEU case law.170 It was the Laval quartet case law that exposed how the application of proportionality was problematic as a conflict rule, particularly for the relationship between fundamental rights and EU freedoms. The main issue here concerned the implications of taking EU freedoms as a point of departure instead of basing the result on fundamental freedoms.171 While in Viking172 the Court started by establishing that the right to take collective action, including the right to strike, was a fundamental right forming an integral part of the general principles of Union law,173 it went on to observe that the exercise of this fundamental right had to be ‘reconciled’ with the right of establishment. The effect of this was not only to subordinate social rights to market freedoms but also to disguise, under the language of balancing and proportionality, the fact that the CJEU engaged in reality in substantive moral reasoning, in this case pursuing the EU interest in integration/effectiveness, within a market-dominance setting, rather than one of protecting fundamental rights.174

166 Tuori (n 4). 167 eg A Stone Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ in G Bongiovanni (ed), Reasonableness and Law (Berlin, Springer, 2009) 173–214. On the principle in EU law, see TI Harbo, ‘The Function of the Proportionality Principle in EU Law’ (2010) 16 European Law Journal 158. 168 Collins (n 87) 155. 169 Harbo (n 167) 164–65. 170 For a discussion, see Harbo (n 167) above and S de Vries, ‘Balancing Fundamental Rights with Economic Freedoms According to the European Court of Justice’ (2013) 9 Utrecht Law Review 169. 171 On this, see A Rosa, ‘Balancing Fundamental Rights in EU Law’ (2014) 16 Cambridge Yearbook of European Legal Studies 347. 172 Viking (n 2). 173 Art 28 CFREU existed as a ‘soft law’ instrument at the time of the Viking decision. 174 Spaventa (n 3) 33.

128  Aristea Koukiadaki Of course, the approach adopted in Viking could be seen as consistent with the then EU model, under which the economic freedoms represented the ­structure of the Union.175 However, following the introduction of Articles 2 and 6 TEU, such an approach sits rather uneasily with an understanding of the EU as having now a ‘human rights dimension’.176 In this respect, a particular function of the incorporation of the Charter in EU primary law could be to narrow down the hitherto broad scope for imposing limitations on fundamental rights.177 The requirement, among others, under Article 52(1) CFREU, for legitimate objectives to be ‘genuinely met’ could be seen here as a means to limit such risks and contribute to a more effective balancing approach. The rise of the Charter could thus be ‘transformative’ and save the Court from itself, in the words of W ­ eatherill.178 However, a risk that seems to be inherent in the process of balancing, especially regarding competing rights, is that certain rights may be completely overlooked. In Alemo-Herron, the Court proceeded to find that the UK legislation on transfers of undertakings was incompatible with Article 16 CFREU, although without considering that this law was adopted to protect workers’ rights, in particular the rights guaranteed by Article 30 of the Charter.179 Some evidence of reconsideration was provided in AGET Iraklis, a case involving this time the compatibility of Greek legislation on collective redundancies with ­Articles 16 CFREU and 56 TFEU. While AG Wahl argued that both Article 27 and Article 30 CFREU were essentially irrelevant for the purpose of the balancing test that the Court is supposed to perform,180 the Court expressly referred to Article 30 of the Charter and concluded that the rule in question could be justified on the grounds on its worker protection objectives.181 A related risk is that of incomplete assessment of how this particular aspect of Article 52(1) CFREU may be applied. In Ledra,182 a case concerning measures related to the economic crisis in Cyprus, it was held, though without much explanation, that 175 See de Vries (n 170) 178. 176 See here AG Trstenjak, who in a later case argued that ‘the approach adopted in Viking Line and Laval un Partneri … must, in addition, … sit uncomfortably alongside the principle of equal ranking for fundamental rights and fundamental freedoms’. Opinion of AG Trstenjak of 14 April 2010 in Case C-271/08, Commission v Germany, Judgment of 15 July 2010, para 183. A better alternative would involve prioritising human rights (see also Peers and Prechal (n 114) 1479). 177 The principle of proportionality is one of the general principles of EU law (see, to that effect, judgments of 6 March 2014, C‑206/13, Siragusa, EU:C:2014:126, para 34 and the case law cited, and of 9 July 2015, C‑153/14, K and A, EU:C:2015:453, para 51). 178 S Weatherill, ‘Protecting the Internal Market from the Charter’ in S de Vries, U Berniz and S Weatherill (eds), The EU Charter of Fundamental Rights as a Binding Instrument (Oxford, Hart Publishing, 2015) 227. 179 See J Kenner, ‘Article 30 – Protection in the Event of Unjustified Dismissal’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014). 180 Paras 58–61. 181 Paras 89–90. 182 Joined Cases C-8/15 P to C-10/15 P Ledra Advertising v Commission and ECB [2016] ECLI:EU:C:2016:701.

Application and Limitations  129 the ­measures introduced in Cyprus did not constitute a disproportionate and intolerable interference impairing the very substance of the appellants’ right to property.183 According to the conventional understanding of the proportionality principle, it consists of three tests applied to the allegedly infringing measure, respectively the suitability, the necessity and the proportionality stricto sensu test. The suitability test, or appropriateness test, refers to the relationship between the means and the end. The question asked is whether the measure chosen is suitable or appropriate in order to achieve the given aim proposed to achieve by using the chosen measure. The necessity test implies that the court assesses whether the chosen measure is necessary to achieve the proposed goal, in the meaning that the measure should be chosen which is least restrictive on the given norm. In the third test the measure’s proportionality is assessed stricto sensu, meaning that a measure is disproportionate if it, although suitable and necessary, nevertheless imposes an excessive burden on the individual. Another relevant issue here concerns the extent to which the margin of appreciation, often used in balancing exercises, can have a role ‘within a legal order with the different objectives characterised by limited competences and the goal of approximating the legislation and policy of its Member States in those areas’.184 This is related to the level at which the balancing exercise takes place, a process described as one of ‘institutional balancing’.185 The CJEU seems to have adopted a restrictive approach when considering the margin of appreciation in cases involving private party challenges against national systems of labour protection. Evidence of this was provided already in Viking, where the Court failed to concede some margin for discretion, found already in its earlier case law and required in cases as complex as these. But even in AGET Iraklis, while the Court suggested that a national regime requiring public authorities’ authorisation for collective redundancies was in principle capable of satisfying the requirements stemming from the principle of proportionality, it went on to reduce significantly the scope for discretion for the Greek government. This approach can be contrasted with the emerging case law involving the compatibility of austerity measures with the CFREU. In Florescu, a case

183 Para 74. See, by analogy, judgment of 10 July 2003, C‑20/00, Booker Aquaculture and Hydro Seafood, and C‑64/00, EU:C:2003:397, paras 79 to 86. 184 Peers has argued that the margin of appreciation is ‘a concept designed by an international court with plenary jurisdiction over human rights issues to take account of highly diverse situations, and has no role within a legal order with the different objectives characterised by limited competences and the goal of approximating the legislation and policy of its Member States in those areas’, S Peers, ‘Taking Rights Away? Limitations and Derogations’ in S Peers and A Ward (eds), The EU Charter of Fundamental Rights: Politics, Law and Policy, Essays in European Law (Oxford, Hart Publishing, 2004) 169. 185 A Bobic, ‘A Dynamic Analysis of Judicial Behaviour’ in M Derlén and J Lindhol (eds), The Court of Justice of the European Union: Multidisciplinary Perspectives (Oxford, Hart Publishing, 2018) 51.

130  Aristea Koukiadaki i­nvolving the most detailed assessment of the austerity measures to date,186 the Court stressed the broad scope of discretion that Member States have when adopting economic decisions and that they are in the best position to determine the measures likely to achieve the objectives pursued.187 The way proportionality was applied here bore a considerable largely resemblance to the related case law of the ECtHR,188 with the CJEU affirming the broad margin of appreciation provided to states whilst taking into account the conditions under which limitations were introduced.189 This approach has been complemented by a broad move by the CJEU away from a position of leaving it to the national courts to decide how to balance competing rights (‘deference’) to stepping in to balance the relevant rights itself (‘guidance’).190 Whereas, for instance, in Viking the task of determining whether the collective action had an objective of protecting jobs and whether the principle of proportionality was respected was considered to be a matter for the national court (the Court of Appeal in England and Wales), the CJEU decided to rule on the particular issue for itself in Alemo-Herron. A related issue here is in respect of the adequacy of the informational basis upon which the Court relies to perform the balancing exercise itself. The recent case of AGET Iraklis exemplifies clearly this issue. There the Court did not seek to assess whether the criteria relied upon by Greek Supreme Labour Council, which were far more detailed and precise than the three principles used by the Greek Minister of Labour, may be sufficient to pass the proportionality test.191

186 Fn 85 above. Sotiropoulou (T-531/14 Sotiropoulou v Council [2017] ECLI:EU:T:2017:29) was another case that raised the issue of the compatibility of austerity measures (in the form of pension cuts in Greece) with the CFREU (Arts 1, 25 and 34). It concerned an action for damages against the Council for its Excessive Deficit Decision accompanying the first Greek Memorandum of Understanding. However, the substance of the claims was not examined as a result of the way the General Court approached the need for the EU to have committed a sufficiently serious breach by manifestly and gravely disregarding the limits of its discretion (see C Kilpatrick, ‘The EU and its Sovereign Debt Programmes: The Challenges of Liminal Legality’, EUI Working Papers, LAW 2017/14). 187 Para 57. 188 See, among others, Application no. 13341/14, Silva Carvalho Rico v Portugal, 24.09.2015. 189 Fn 85 above. 190 On this point, see Peers and Prechal (2014) 1477, and T Tridimas, ‘Constitutional Review of Member State Action: The Virtues and Vices of an Incomplete Jurisdiction’ (2011) 9 International Journal of Constitutional Law 3–4, 737, 739. However, it may be the case that a ‘weaker’ link with EU legislative competences leads to more restraint on the part of the CJEU and consequently more leeway for the national court to determine the issue. 191 The Supreme Labour Council (SLC) was provided with a right to pass a ‘motivated opinion’ on any planned collective redundancies, which would then be considered by the Minister of Labour. The involvement of the SLC meant that this prerogative of public authorities was subject to a process of deliberation in which both sides of industry, ie employers and employees, as represented in the Council, maintained their autonomy, yet which was governed by broader goals set by the legislation on collective redundancies (N Countouris and A Koukiadaki, ‘Οι ομαδικές απολύσεις, το δημόσιο συμφέρον και ο μύθος του ανίσχυρου κράτους’ (2017) 76 Επιθεώρηση Εργατικού Δικαίου (Revue de Droit du Travail) 469.

Application and Limitations  131 D.  The Essence Test Any assessment of limitations on Charter rights should consider whether the proposed limitation touches the essence of the right or only an element protected at the periphery of the scope of protection.192 It is only limitations that touch on the periphery that may be permissible, provided they pursue a legitimate objective and are proportionate. The idea of the ‘essence’ of a right or freedom is inspired by the constitutional traditions shared by EU Member States193 and the case law of the ECtHR.194 While in other international human rights instruments the notion of an inviolable core or essence of rights is not explicitly stipulated but derived from the case law,195 the CFREU explicitly recognises its existence. In requiring an understanding of a threshold below which Charter rights should not be limited, the essence test in many ways constitutes the starting point for the realisation of socio-economic rights and represents a distinct step in the assessment of Charter limitations.196 In the pre-Charter period, the CJEU case law usually made reference to the ‘very substance of the right guaranteed’ rather than the ‘essence of the right’.197 Since 2009, the question has been whether Article 52(1) CFREU was meant to bring about a material change, ie making an ‘essence test’ a self-standing condition, which is separate from the proportionality analysis.198 In Sky Österreich, the Court explicitly referred to Article 52(1): before conducting a proportionality assessment, it noted that the EU Directive at stake did not ‘affect the core 192 The explanations to the Charter cite in Article 51(2) the case of Karlsson, which in turn cites para 18 of the Wachauf case, as the more appropriate foundation for Article 52(1) CFREU. AG Jääskinen noted in Case C‑129/14 PPU, ‘the Court therefore seeks, in its case-law, to strike a fair balance between, on the one hand, the various rights and interests and, on the other, the fundamental rights and economic freedoms, and in carrying out that balancing, it also takes into account the objectives underlying the limitation of a fundamental right’ (para 83). 193 See, for example, Article 19(2) of the German Basic Law, which provides that ‘[i]n no case may the essence of a basic right be affected’. For a review, see G van der Schyff, ‘Cutting the Core of Conflicting Rights: the Question of Inalienable Cores in Comparative Perspective’ in E Brems (ed.), Conflicts between Fundamental Rights (Intersentia, 2008) 131–47. 194 See, eg ECtHR, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A No 52. In the ECtHR case law, it is the ‘core test’ that is used to adjust the scope of the margin of appreciation (depth of the review). 195 See, for instance, in the case of the ECHR, Golder v the United Kingdom, in which the court acknowledged the very essence of Article 5(4) ECHR in the context of the deprivation of a mentally disabled person’s liberty, ECtHR, 21 February 1975, App No 4471/70, Golder v United Kingdom, para 38. 196 On this, see D Bilchitz, ‘Socio-Economic Rights, Economic Crisis and Legal Doctrine’ (2014) 12 I-CON 710–39. 197 See inter alia Case C-200/96 Metronome Musik [1998] ECR I‑1953, para 21, Joined Cases C-184/02 and C-223/02, Finland v Parliament and Council, Spain v Parliament and Council, para 52. According to Peers and Prechal, a requirement to respect the essence of a right permits fewer limitations than a requirement not to undermine its very substance (see however, Case T-187/11 Trabelsi, which expressly equates these two concepts). 198 Groussot and Petursson, n 109 above.

132  Aristea Koukiadaki content of the freedom to conduct business’ (emphasis added); it then proceeded to a step-by-step assessment of the proportionality principle, identifying the existence of a ‘legitimate aim in the general interest’, the suitability and necessity of the measure, turning finally to an examination of the proportionality stricto sensu of Article 15(6) of the Directive.199 It was in a more recent decision, Schrems,200 that the Court de facto applied the notion, instead of just generally referring to it. In doing this, it seemed to have acknowledged the idea that fundamental rights must be understood as having a ‘hard core’, which should remain outside the scope of application of the balancing test.201 In the area of labour rights particularly, it is the case law related to A ­ rticle 16 CFREU that points to a problematic conceptualisation of the notion ‘essence of right or freedom’. In Alemo-Herron, while no reference was made to­ Article  52(1) CFREU, it was still found that Directive 2001/23/EC on transfers of undertakings could not be interpreted in such a way so as to reduce the transferee’s contractual freedom to the point that the limitation would be liable to adversely affect ‘the very essence of its freedom to conduct business’. Moreover, the CJEU, as Groussot and Petursson have aptly described, seemed to have manipulated the ‘essence of the right’ condition, because it was playing­ Article 16 CFREU out as an absolute right, which it is not, failing simultaneously to view the right in relation to its social function.202 This went against the previous practice of the CJEU, which had made regular reference to the ‘social function’ of fundamental rights. Such a function could be seen here as part of the wider EU legal system, which requires that rights must always be put in context with other rights of equal value and with collective interests.203 Some evidence of reconsideration was provided in AGET Iraklis.204 Contrary to AG Wahl, who argued that such a requirement disproportionately interfered with the fundamental freedom to conduct a business as protected by Article 16 CFREU (and Article 54 TFEU), the Court seemed initially to distance itself from the AG’s Opinion.205 But it did not go as far as departing from its Alemo Herron

199 Paras 62–65. A similar approach was adopted in a very recent case, Fries (paras 36–39). 200 CJEU, 6 October 2015, C-362/14, Maximillian Schrems v Data Protection Commissioner. 201 See T Ojanen, ‘Making the Essence of Fundamental Rights Real: The Court of Justice of the European Union Clarifies the Structure of Fundamental Rights under the Charter: CJEU 6 October 2015, Case C-362/14, Maximillian Schrems v Data Protection Commissioner’ (2016) 12 European Constitutional Law Review 318. 202 Groussot and Petursson, n 109 above. 203 According to Geiger, this adds a practical dimension to the subject: ‘if the right is indeed to be used in accordance with its function, it must not be used “antisocially”, ie disregarding certain fundamental values and competing rights’ (C Geiger, ‘The Social Function of Intellectual Property Rights, or How Ethics Can Influence the Shape and Use of IP Law’ in GB Dinwoodie (ed), Intellectual Property Law: Methods and Perspectives (Cheltenham, Edward Elgar, 2013) 153 at 156). For a critical approach to the use of the notion by the CJEU, see Peers and Prechal (n 114) 1478. 204 On this, see Countouris and Koukiadaki (n 191). 205 In para 83 of the judgment, the Court noted that ‘the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms enshrined in Title II thereof’ means that ‘the freedom to conduct a business may be subject to a broad range of interventions on

Application and Limitations  133 understanding of Article 16, simply noting that in the AGET case, unlike in Alemo, the Ministerial veto did ‘not have … the consequence of entirely excluding … the ability of undertakings to effect collective redundancies, since it is designed solely to impose a framework on that ability’.206 IV. CONCLUSION

Any treaty for the protection of human rights gives priority to rights at face value; its goal is to protect certain individual fundamental interests not only from arbitrary state power but also from collective interests.207 In its­ Opinion  2/13, the CJEU held that the fundamental rights recognised by the CFREU are ‘at the heart’ of the EU’s legal structure.208 However, an analysis of the impact of the CFREU in the area of social rights, and particularly labour rights, has revealed that the Charter constitutes at best a peripheral force when it comes to their realisation. As Kilpatrick pointed out recently, ‘social Europe developed without all the Treaty support it needed (eg in the 1970s) and was placed under greatest pressure in the presence of its most significant support in the Treaties after Lisbon’.209 While the current state of Social Europe could be seen as simply an outcome of developments in the social, economic and political landscape in Europe, this would be incomplete without taking into account the design failures in the EU legal/institutional framework for a supranational welfare state model. From the perspective of the Charter in particular, the constitutionalisation of labour rights within the EU legal system has been compromised because the Charter has not been functioning so far as an instrument for improving human rights protection but paradoxically as a mechanism to reinforce the unity, primacy and effectiveness of EU law, underpinned by a logic of economic integration. As part of the EU juridical constitution, the Charter is in effect framing conflicts between different constitutions – in this case the social and the economic – with the effect of maintaining and even furthering the functional primacy of the economic one. This process of economic constitutionalisation through the Charter itself provides further confirmation of the role of the juridical constitution in the EU order more broadly: rather than being primary in relation to sectoral policy fields, as it is the case in national systems, the EU

the part of public authorities that may limit the exercise of economic activity in the public interest’ (para 86, emphasis added, citing Case C-283/11, Sky Österreich). 206 Para 88, see Countouris and Koukiadaki (n 191). 207 For an insightful analysis, see S Tsakyrakis, ‘Proportionality: An assault on human rights?’ (2009) 7 International Journal of Constitutional Law 468. 208 Para 169. 209 C Kilpatrick, ‘The Displacement of Social Europe: A Productive Lens of Inquiry’ (2018) 14 European Constitutional Law Review 62, 70.

134  Aristea Koukiadaki legal system responds to the needs of and implications arising from the establishment and functioning of the common market.210 In this respect, the Charter exercises both a constitutive function in terms of promoting the development of mechanisms on which the economic constitution at sectoral level relies and a restrictive function in terms of limiting at the same level, namely sectoral, the reach of the social constitution.211 From the perspective of its field of application, this is illustrated by the Charter’s ‘chilling effect’ on the application of EU ­fundamental rights to national measures’:212 this has taken place in the context of the constitutionalisation, among other things, of the concept of private autonomy as a result of the reliance on Article 16 CFREU in horizontal situations falling within the scope of EU law.213 From the perspective of the limitations applicable under Article 52(1) CFREU, the balancing approach, in the form of the principle of proportionality, in the way particularly applied by the CJEU, seems to distort rather than illuminate human rights adjudication, ultimately calling into question the scope for developing a truly European social constitution.

210 Tuori (n 4). 211 On the distinction between the constitutive and restrictive function, see Tuori (n 4). 212 Spaventa (n 3) 32. 213 X Groussot, ‘Weak Right, Strong Court – The Freedom to Conduct Business and the EU Charter of Fundamental Rights’ in S Douglas-Scott and N Hatzis (eds), Research Handbook on EU Law and Human Rights (Cheltenham, Edward Elgar, 2017).

7 Interpretation and Minimum Level of Protection KLAUS LÖRCHER

Preamble The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organisation of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment. To this end, it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention. Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out hereafter.

136  Klaus Lörcher Article 52 Scope and interpretation of rights and principles … 2.  Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties. 3.  In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. 4.  In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions. 5.  The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality. 6.  Full account shall be taken of national laws and practices as specified in this Charter. 7.  The explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States. Article 53 Level of protection Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.

EXPLANATIONS ON ARTICLE 52 – SCOPE AND INTERPRETATION OF RIGHTS AND PRINCIPLES Paragraph 2 refers to rights which were already expressly guaranteed in the Treaty establishing the European Community and have been recognised in the Charter, and which are now found in the Treaties (notably the rights derived from Union citizenship). It clarifies that such rights remain subject to the conditions and limits applicable to the Union law on which they are based, and for which provision is made in the Treaties. The Charter does not alter the system of rights conferred by the EC Treaty and taken over by the Treaties. Paragraph 3 is intended to ensure the necessary consistency between the Charter and the ECHR by establishing the rule that, in so far as the rights in the present Charter also correspond to rights guaranteed by the ECHR, the meaning and scope of those rights, including authorised limitations, are the same as those laid down by

Interpretation and Minimum Level of Protection  137 the ECHR. This means in particular that the legislator, in laying down limitations to those rights, must comply with the same standards as are fixed by the detailed limitation arrangements laid down in the ECHR, which are thus made applicable for the rights covered by this paragraph, without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union. The reference to the ECHR covers both the Convention and the Protocols to it. The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case law of the European Court of Human Rights and by the Court of Justice of the European Union. The last sentence of the paragraph is designed to allow the Union to guarantee more extensive protection. In any event, the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR. The Charter does not affect the possibilities of Member States to avail themselves of Article 15 ECHR, allowing derogations from ECHR rights in the event of war or of other public dangers threatening the life of the nation, when they take action in the areas of national defence in the event of war and of the maintenance of law and order, in accordance with their responsibilities recognised in Article 4(1) of the Treaty on European Union and in Articles 72 and 347 of the Treaty on the Functioning of the European Union. The list of rights which may at the present stage, without precluding developments in the law, legislation and the Treaties, be regarded as corresponding to rights in the ECHR within the meaning of the present paragraph is given hereafter. It does not include rights additional to those in the ECHR. 1.

Articles of the Charter where both the meaning and the scope are the same as the corresponding Articles of the ECHR: —— Article 2 corresponds to Article 2 of the ECHR, —— Article 4 corresponds to Article 3 of the ECHR, —— Article 5(1) and (2) corresponds to Article 4 of the ECHR, —— Article 6 corresponds to Article 5 of the ECHR, —— Article 7 corresponds to Article 8 of the ECHR, —— Article 10(1) corresponds to Article 9 of the ECHR, —— Article 11 corresponds to Article 10 of the ECHR without prejudice to any restrictions which Union law may impose on Member States’ right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR, —— Article 17 corresponds to Article 1 of the Protocol to the ECHR, —— Article 19(1) corresponds to Article 4 of Protocol No 4, —— Article 19(2) corresponds to Article 3 of the ECHR as interpreted by the European Court of Human Rights, —— Article 48 corresponds to Article 6(2) and(3) of the ECHR, —— Article 49(1) (with the exception of the last sentence) and (2) correspond to Article 7 of the ECHR.

2.

Articles where the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider: —— Article 9 covers the same field as Article 12 of the ECHR, but its scope may be extended to other forms of marriage if these are established by national legislation,

138  Klaus Lörcher —— Article 12(1) corresponds to Article 11 of the ECHR, but its scope is extended to European Union level, —— Article 14(1) corresponds to Article 2 of the Protocol to the ECHR, but its scope is extended to cover access to vocational and continuing training, —— Article 14(3) corresponds to Article 2 of the Protocol to the ECHR as regards the rights of parents, —— Article 47(2) and (3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation, —— Article 50 corresponds to Article 4 of Protocol No 7 to the ECHR, but its scope is extended to European Union level between the Courts of the Member States, —— Finally, citizens of the European Union may not be considered as aliens in the scope of the application of Union law, because of the prohibition of any discrimination on grounds of nationality. The limitations provided for by Article 16 of the ECHR as regards the rights of aliens therefore do not apply to them in this context. The rule of interpretation contained in paragraph 4 has been based on the wording of Article 6(3) of the Treaty on European Union and takes due account of the approach to common constitutional traditions followed by the Court of Justice (eg, judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 18 May 1982, Case 155/79 AM&S [1982] ECR 1575). Under that rule, rather than following a rigid approach of ‘a lowest common denominator’, the Charter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions. Paragraph 5 clarifies the distinction between ‘rights’ and ‘principles’ set out in the Charter. According to that distinction, subjective rights shall be respected, whereas principles shall be observed (Article 51(1)). Principles may be implemented through legislative or executive acts (adopted by the Union in accordance with its powers, and by the Member States only when they i­mplement Union law); accordingly, they become significant for the Courts only when such acts are interpreted or reviewed. They do not however give rise to direct claims for positive action by the Union’s institutions or Member States authorities. This is consistent both with caselaw of the Court of Justice (cf notably case law on the ‘precautionary principle’ in ­Article 191(2) of the Treaty on the Functioning of the European Union: judgment of the CFI of 11 September 2002, Case  T-13/99 Pfizer v Council, with numerous references to earlier case law; and a series of judgments on Article 33 (ex-39) on the principles of agricultural law, eg judgment of the Court of Justice in Case 265/85 Van den Berg [1987] ECR 1155: scrutiny of the principle of market stabilisation and of reasonable expectations) and with the approach of the Member States’ constitutional systems to ‘principles’, particularly in the field of social law. For illustration, examples for principles, recognised in the Charter include eg Articles 25, 26 and 37. In some cases, an Article of the Charter may contain both elements of a right and of a principle, eg Articles 23, 33 and 34. Paragraph 6 refers to the various Articles in the Charter which, in the spirit of subsidiarity, make reference to national laws and practices.

Interpretation and Minimum Level of Protection  139 EXPLANATIONS ON ARTICLE 53 – LEVEL OF PROTECTION This provision is intended to maintain the level of protection currently afforded within their respective scope by Union law, national law and international law. Owing to its importance, mention is made of the ECHR.

I. INTRODUCTION

Interpretation is the core of the legal and judicial exercise in dealing with (problems in) legal texts in particular in binding force by judicial bodies.1 Accordingly, at EU level, interpretation is intrinsically linked to the Court of Justice of the European Union (CJEU). Unlike national courts its difficult obligation is to find solutions to legal problems arising in an autonomous supranational system without being able to (at least explicitly) refer to national experiences. The problems are even more acute in the case of the CFREU, for several reasons. As a set of multilevel tendencies, experiences, visions, influences and so on this human rights instrument is of a particularly complex nature. The integration of civil and political with social and cultural rights into one human rights instrument (the first after the legally non-binding UDHR) or the CFREU’s position within the framework of other international and national human rights protection corpuses may illustrate some elements of this complexity. The current situation is still characterised by a lack of clarity. Several general and many more specific questions have still not been dealt with in detail by the CJEU. In particular, many of the specific CFREU provisions (contained mainly in Title VII (Articles 52 (paragraphs 2 to 7) and 53),2 itself taking into account particularly Article 6 TEU, as well as the Preamble of the CFREU) are still not very clear and are thus open to interpretation themselves as the CJEU has not very often interpreted these horizontal CFREU provisions explicitly.3 The ­relation of the general rules of interpretation to the specific CFREU provisions on interpretation is not very clear either. Although many authors have analysed the CJEU’s method of interpretation in general4 or in specific aspects it appears important to highlight the most 1 This text builds on and further expands (at least partially) on previous analyses, such as Part II in C Kollonay Lehoczky, K Lörcher and I Schömann, ‘The Lisbon Treaty and the Charter for Fundamental Rights of the European Union’ in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012) 70–78, 84–87; J Heuschmid and K Lörcher, ‘Charta der Grundrechte der Europäischen Union’ in W Boecken, FJ Düwell, M Diller and H Hanau (eds), Gesamtes Arbeitsrecht, No 350 (Baden-Baden, Nomos Verlag, 2016) 1861–940. 2 Articles without further indication refer to the CFREU. 3 According to the CJEU’s database (CURIA, search limited to judgments published in the ECR and the period between 2010 and 2017 inclusively), with the exception of Art 52(3) only a few judgments deal with horizontal issues enshrined in Arts 52(2)–(7) and 53. 4 See, for a comparative approach: H Senden, Interpretation of Fundamental Rights in a Multilevel Legal System – An analysis of the European Court of Human Rights and the Court of Justice of the European Union (Cambridge, Intersentia, 2011).

140  Klaus Lörcher relevant principles in order to provide a framework or point of reference for the interpretation of the employment-related provisions of the CFREU. II. INTERPRETATION

A.  General Principles of Interpretation i.  General Principles From the commencement of its judicial activities, the CJEU has developed a general approach to the interpretation of EU (primary and secondary) law, according to which the interpretation of a provision of Union law must take into account not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it forms part.5 The history of the emergence of a provision of Union law can also provide relevant indications for the interpretation. In the case of various possible interpretations of a provision, preference should be given to the one that is appropriate to preserve the effectiveness of the provision (‘effet utile’). Before dealing more specifically with the legal concept underlying the interpretation of the CFREU, contained mainly in Article 52, it must be stated that those orientations are not to be understood in an exclusive way. They must be embedded – as a first layer – in the framework described above. The next layer refers to the ‘normal’ interpretative methods, such as ‘effet utile’ and the references to the preambles (in the given context, the Preamble of the Charter). Moreover, further elements/principles of interpretation are taken into account by the CJEU, such as the efficiency of fundamental rights,6 international instruments to which the EU Member States have contributed in their ­elaboration7 and strict interpretation of exemptions.8 EU measures must be 5 See, inter alia, CJEU, 10 September 2014, C‑491/13, Ben Alaya, para 22 and the case law cited, CJEU (GC), 4 April 2017, C‑544/15, Fahimian, para 30, as a recent example; all emphases in ­quotations are added. 6 CJEU, 6 March 2014, C-206/13, Siragusa, para 31. This has now been recognised expressly for Article 31 (2) for providing it with a horizontal effect by two recent judgments: CJEU (GC) 6 ­November, C-569/16 ea, Bauer ea, para 91 (‘full effectiveness’) and also in further respects CJEU (GC) 6 November 2018, C‑684/16, Max-Planck-Gesellschaft, paras 61, 68 and 80. 7 CJEU, 14 February 2008, C‑244/06, Dynamic Medien Vertriebs, para 39. In that connection, it must be recalled that the protection of the rights of the child is recognised by various international instruments that the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, which was adopted by the General Assembly of the United Nations on 19 December 1966 and entered into force on 23 March 1976, and the Convention on the Rights of the Child, which was adopted by the General Assembly of the United Nations on 20 November 1989 and entered into force on 2 September 1990. The Court has already had occasion to point out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540/03, Parliament v Council [2006] ECR I-5769, para 37). 8 CJEU, 17 March 2016, C-40/15, Aspiro, para 31.

Interpretation and Minimum Level of Protection  141 interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law9 and in particular the Charter. ii.  Objectives and Context to be Taken Account of Specifically In order to make the general principles of interpretation more detailed in relation to the (social) objectives and the context there are a number of specific elements that have to be taken account of: a.  In Relation to EU Primary Law First, it appears important to mention fundamental principles, in particular those that have been included by the Lisbon Treaty,10 such as the values of the EU in Article 2 TEU and the objectives, in particular in Article 3(3) TEU and concerning social policy in Article 151(1) TFEU,11 the horizontal social clause in Article 9 TFEU,12 the promotion of the role of the social partners in ­Article 152 TFEU,13 the fundamental social rights in the Community Charter on the ­Fundamental Social Rights of Workers (Community Charter),14 as well as in the European Social Charter (ESC),15 as referred to in Recital 5 of the Preamble of the TEU and in Article 151(1) TFEU defining the social policy objectives. b.  In Relation to International Human Rights Instruments The importance of international human rights instruments cannot be underestimated. This is particularly true of those human rights instruments that have been ratified by all EU Member States. They represent a primary source of interpretation for the respective Charter articles (see Annex I) and at the same time provide a minimum level of protection (see below Article 53). But even those instruments falling short of ratification by all EU Member States are relevant for interpretative purposes. There is a general rule according to which account has to be taken of international treaties and all other international conventions

9 CJEU 15 February 2016, C-601/15 PPU, N, para 48. CJEU 19.9.2014 – C‑579/12 RX-II (Strack), para 40. 10 See to this effect in particular N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012). 11 See F Dorssemont, ‘Values and Objectives’ in Bruun, Lörcher and Schömann (n 10) 45–59. 12 See P Vielle, ‘How the Horizontal Social Clause can be made to Work: The Lesson of Gender Mainstreaming’ in Bruun, Lörcher and Schömann (n 10) 105–21. 13 See B Veneziani, ‘The Role of the Social Partners’ in Bruun, Lörcher and Schömann (n 10) 123–61. 14 See B Bercusson, ‘The European Community’s Charter of Fundamental Social Rights of Workers’ in ETUI-TTUR (eds), Labour Law and Social Europe – Selected Writings of Brian Bercusson (Brussels, ETUI, 2009) 55–88. 15 See below s III.B.ii.a.

142  Klaus Lörcher that Member States have ‘cooperated [on] or acceded to’.16 More specifically concerning ILO Conventions, the Preamble of the Community Charter states in its Recital 10 that ‘inspiration should be drawn from the Conventions of the International Labour Organization’. Accordingly, at least the following international treaties mentioned in Annex II are relevant for the following CFREU provisions. B.  Specific Principles Related to the CFREU For the purpose of interpretation, the specific context of the CFREU has to be taken into account in relation to the Preamble and the relevant provisions in Title VII. The principle is stated explicitly in Article 6(1)(3) TEU. i. Preamble Although being of a more political nature the Preamble defines the aims and the context within which the CFREU provisions have to be interpreted. Thus it has legal relevance that is recognised by the CJEU as a tool of interpretation.17 Several of its recitals are of specific importance, such as the confirmation of the EU’s basic values – ‘the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity’ (second recital) – which underlines the principle of indivisibility of fundamental rights, putting civil and political rights on the same level as fundamental social rights; the reference to ‘social progress’ (fourth recital); and the foundations of the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice of the European Union and of the European Court of Human Rights’ (ECtHR) (fifth recital). This means that not only the ESC (1961) but also the Revised European Social Charter (1996, RESC), as well as the Community Charter18 have to be taken into account (see also below and Article 53).

16 CJEU, 14 February 2008, C‑244/06, Dynamic Medien Vertriebs, para 39. It appears important to note that the CJEU has recently again referred to this formula in the social policy area (CJEU (GC) 6 November, C-569/16 ea, Bauer ea, para 81, and C‑684/16, Max-Planck-Gesellschaft, para 70). 17 There is ample jurisprudence on the objective to be taken into account (see, for example, CJEU, 10 June 2010, Cases C‑395/08 and C-396/08, Bruno and Pettini, paras 28ff; Case C‑268/06, Impact [2008] ECR I-2483, paras 110ff). 18 A Bailleux, ‘Préambule’ in F Picod and S Van Drooghenbroeck (eds), Charte des droits ­fondamentaux de l’Union européenne (Bruxelles, Bruylant, 2018) para 24. See to this effect also the two recent judgments: CJEU (GC) 6 November, C-569/16 ea, Bauer ea, paras 55 and 81, and C‑684/16, Max-Planck-Gesellschaft, para 71.

Interpretation and Minimum Level of Protection  143 Several elements such as ‘in the light of changes in society’ and ‘social progress’ point to the need to take into account the dynamic character of the Charter in its interpretation.19 ii.  Article 52 Scope and Interpretation of Rights and Principles a.  Preliminary Observations Not surprisingly, this ‘horizontal’ article was adopted only after controversial debates. And it was the sole Article that has been amended substantially after the adoption of the 2000 (Nice) version of the CFREU, which contained only the three original paragraphs 1–3. Paragraphs 4 to 7 were inserted before the constitutional treaty. Thus, paragraphs 4 to 6 were added by the Presidium of the (second) Convention in 2003, paragraph 7 by the Intergovernmental Conference (IGC) of 18 June 2004. These additions were said to be only of a clarificatory nature without touching on the substance of the CFREU (horizontal) provisions. As the title already indicates Article 52 is of a complex nature. It includes very distinct and, at the same time, several overlapping20 elements. The first and practically very relevant element is contained in paragraph 1 dealing with the ‘scope’. In reality, it means the permissible limitations to the rights guaranteed in the CFREU. They are treated specifically in a different chapter of this publication. The following paragraphs (see below) could be grouped differently according to their respective functions. One function is to guarantee a certain (minimum) level of protection. Paragraph 3 would be the most striking example, being combined with the protection of the essence in paragraph 1 sentence 1 and the level of protection in Article 53 (see below). The next function is to clarify the relationship to other instruments; paragraph 2 defines it in relation to EU primary law. Again, this function is also attributed to another paragraph 4 in relation to national constitutions, as well as to Article 53 in relation mainly to international instruments. A further function is to differentiate the provisions in the CFREU according to their character as ‘rights’ or ‘principles’ and provide the latter with a lower protective status (paragraph 5). The specific emphasis given to the references to ‘national laws and practices’ in paragraph 6 might be considered by authors not in favour of fundamental social rights as conceptual link to paragraph 5 in the sense that these references could be used to characterise the relevant provisions as ‘principles’ only. Finally, paragraph 7 provides for a specific interpretation rule concerning the ‘Explanations’ (‘guidance’, ‘due regard’). 19 ibid, para 28 ff. 20 See in particular for the overlaps between the various paragraphs of Art 52; S Peers and S Prechal, ‘Article 52 – Scope and Interpretation of Rights and Principles’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 1455ff.

144  Klaus Lörcher For transparency and accessibility purposes, the analysis of these paragraphs will not follow their specific functions but their numerical order. b.  Paragraph 2: Rights Corresponding to EU Primary Law This paragraph is of a limitative nature. According to the principle of conferral (Article 5(1) TEU) nothing in the CFREU should go beyond the existing rights in the TEU/TFEU. Of course, a different approach would have been possible under the same principle because in ratifying the TEU (which made the CFREU legally binding) the Member States could obviously have conferred new or more far-reaching rights than contained in the Treaties now. Nevertheless, in the employment relation context, the impact of p ­ aragraph 2 is, additionally, very limited as only a few rights may be considered to be ‘corresponding’ to EU primary law guarantees. According to the respective explanations this could include the following: –– data protection: Article 8(1) CFREU in relation to Article 16 TFEU and Article 39 TEU; –– freedom of movement of workers: Article 15(2) CFREU in relation ia to Article 45, expressly confirmed by the CJEU;21 –– non-discrimination on grounds of nationality: Article 21 (2) CFREU in relation to Article 18 (1) TFEU;22 –– equal treatment of men and women: Article 23 CFREU in relation to Article 157 TFEU. However, the Explanations provide for a differentiated treatment.23 Consequently, it might not be surprising to find that out of the six CJEU judgments concerning this paragraph none deals with the ‘social policy’ area. In any event, in order to assess the substantive meaning of this paragraph several elements would have to be clarified, for example, the wording (‘rights … for which provision is made in the Treaties’) would exclude ‘principles’ as provided for in paragraph 5,24 as well as EU secondary law. The words ‘for which provision is made’ ask for a definition of the degree of comparability. For the 21 Explanations: Para 2 deals with the three freedoms guaranteed by Arts 26, 45, 49 and 56 of the Treaty on the Functioning of the European Union, namely freedom of movement for workers, freedom of establishment and freedom to provide services. See, for example, CJEU, 7 April 2016, C-284/15, M and M, para 33: ‘As to whether Article 67(3) of Regulation No 1408/71 complies with Article 15(2) of the Charter, it must be borne in mind that Article 52(2) of the Charter provides that rights recognised by the Charter for which provision is made in the treaties are to be exercised under the conditions and within the limits defined in the treaties. In that vein, Article 15(2) of the Charter reiterates inter alia the free movement of workers guaranteed by Article 45 TFEU, as the explanations relating to that provision confirm …’. 22 Explanations: ‘Paragraph 1 draws on … Article 19 of the Treaty on the Functioning of the ­European Union, Article 14 of the ECHR …’. 23 See for more details Peers and Prechal (n 20) para 52.89. 24 This might become relevant for Art 23 as the Explanations to Art 52(2) cite this provision as an example of an article that might contain both rights and principles.

Interpretation and Minimum Level of Protection  145 sake of clarity, the fundamental rights in the CFREU and the corresponding rights in the Treaties should be identical. c.  Paragraph 3: Rights Corresponding to ECHR Rights The predominant role of the ECHR in respect of the CFREU is demonstrated by several provisions, the most precise of which is paragraph 3 containing two main elements. In the words of the Explanations the first element could be described as a principle of ‘consistency’ between the two instruments to the extent that the CFREU contains rights that correspond to rights guaranteed by the ECHR. The second could be called the ‘principle of the most favourable clause’ in respect of EU law, which is clearly provided for in the second sentence of paragraph 3.25 If the first element would have to be understood in a restrictive way the second element would appear to be in direct contrast to it. How could a fundamental right guaranteed in both the ECHR and the CFREU, but interpreted on the basis of the ECtHR’s case law in a restrictive way, be compatible with the CFREU’s principle allowing for ‘more extensive protection’ than what is provided for in the ECHR? In order to better reconcile the two elements, it is suggested that they should be understood and handled in a procedural way. At the first stage the ECHR and the rights enshrined therein would be examined as they contain the absolute minimum level of protection (see below section III.A). In the words of the Explanations, ‘the level of protection afforded by the Charter may never be lower than that guaranteed by the ECHR’. This is of the utmost importance, especially as this statement is accompanied by the clarification that it relates not only to the ECHR as such but also to its Protocols. Even more importantly, as stated in the Preamble of the CFREU and in the Explanations it relates also to the jurisprudence of the ECtHR. This is confirmed by the CJEU’s case law.26 This examination becomes crucial taking into account the new era of the ECtHR’s jurisprudence concerning fundamental social rights. Indeed, the Grand Chamber’s judgment Demir and Baykara27 has not only recognised the right to collective bargaining, as enshrined in Article 11 ECHR (freedom of association), but has also developed a comprehensive methodology of interpretation of the rights contained in the ECHR by referring to international (labour) standards, 25 ‘This provision shall not prevent Union law from providing more extensive protection.’ 26 See the Explanations, CJEU, 22 December 2010, C‑279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft, para 35 and 5 October 2010, C‑400/10 PPU, McB, para 53 (‘the same meaning and the same scope … as interpreted by the case law of the European Court of Human Rights’); see, for example, Heuschmid, ‘Der Arbeitskampf im EU-Recht’ in W Däubler (ed), Arbeitskampfrecht 4th edn (Baden-Baden, Nomos, 2018), § 11, paras 12 and 14. 27 ECtHR (Grand Chamber), 12 November 2008, No 34503/97 Demir and Baykara v Turkey. See, for example, K Ewing and J Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39(1) ILJ 1; K Lörcher, ‘The New Social Dimension in the Jurisprudence of the European Court of Human Rights (ECtHR): The Demiar and Baykara Judgment, its Methodology and Follow-up’ in F Dorssemont, K Lörcher and I Schömann (eds), The European Convention on Human Rights and the Employment Relation (Oxford, Hart Publishing, 2013) 3–46.

146  Klaus Lörcher such as the UN Covenant on Economic, Social and Cultural Rights, the respective ILO Conventions, the RESC and, interestingly enough, the CFREU itself. But this methodology will also have important impacts on further rights, such as the right to a private and family life (Article 8 ECHR) and the prohibition of discrimination (Article 14 ECHR).28 Having thoroughly examined these minimum requirements, the second stage would investigate the extent to which EU law in general and the CFREU in particular provide for further protection. From the longer list in the Explanations it relates to the following ­employment-related provisions:29 (1) Articles of the Charter in which both the meaning and the scope are the same as the corresponding Articles of the ECHR: –– prohibition of slavery and forced labour: Article 5(1) and (2) corresponds to Article 4 of the ECHR, –– respect for private and family life: Article 7 corresponds to Article 8 of the ECHR, –– freedom of thought, conscience and religion: Article 10(1) corresponds to Article 9 of the ECHR,30 –– freedom of expression and information: Article 11 corresponds to Article  10 of the ECHR without prejudice to any restrictions which Union law may impose on Member States’ right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR, –– right to property: Article 17 corresponds to Article 1 of the Protocol to the ECHR. (2) Articles in which the meaning is the same as the corresponding Articles of the ECHR, but where the scope is wider: –– freedom of assembly and of association: Article 12(1) corresponds to Article 11 of the ECHR, but its scope is extended to European Union level, 28 N Bruun and K Lörcher, ‘Social Innovation: The New ECHR Jurisprudence and its Impact on Fundamental Social Rights in Labour Law’ in I Schömann (ed), Mélanges à la mémoire de Yota Kravaritou: a trilingual tribute (Brussels, ETUI, 2011) 335ff. 29 All emphases in the quoted Explanations are added. 30 See, concerning Art 10(1), CJEU (GC), 14 March 2017, C‑188/15, Bougnaoui and ADDH, para  29: ‘In the same recital, the EU legislature also referred to the constitutional traditions common to the Member States, as general principles of EU law. Among the rights resulting from those common traditions, which have been reaffirmed in the Charter of Fundamental Rights of the European Union (“the Charter”), is the right to freedom of conscience and religion enshrined in Article 10(1) of the Charter. In accordance with that provision, that right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. As is apparent from the explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p 17), the right guaranteed in Article 10(1) of the Charter corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope.’

Interpretation and Minimum Level of Protection  147 –– right to a fair trial: Article 47(2) and (3) corresponds to Article 6(1) of the ECHR, but the limitation to the determination of civil rights and obligations or criminal charges does not apply as regards Union law and its implementation. This means, for example, that the protection provided for in Article 12 must not be interpreted in a way that would be lower than the protection provided for in Article 11 ECHR. Quite on the contrary, the latter provision is explicitly extended to the EU level. d.  Paragraph 4: Rights Based on Constitutional Traditions According to paragraph 4, fundamental rights as they result from the constitutional traditions common to the Member States, shall be interpreted in harmony with those traditions. However, according to Article 6(3) TEU fundamental rights resulting from those traditions already constitute general principles of EU law. This approach is now transferred to the fundamental rights of the CFREU by means of paragraph 4. Referring to the CJEU’s case law,31 the Explanations state that, under that rule, rather than following a rigid approach of ‘a lowest common denominator’ the Charter rights concerned should be interpreted in a way offering a high standard of protection which is adequate for the law of the Union and in harmony with the common constitutional traditions.

In this respect, the CJEU has considerable scope for a progressive incorporation of Member-State constitutional traditions into the CFREU. According to the Explanations this could apply to the following articles, which are related to national constitutional traditions:32 –– right to conscientious objection: Article 10(2): ‘corresponds to’;33 –– right to property: Article 17(1): ‘is … common to’;34 –– equality before the law: Article 20: ‘included in’.35

31 For example, CJEU, Cases 44/79, Hauer [1979] ECR 3727 and 155/79 AM&S [1982] ECR 1575. 32 In the (probably sole) judgment in which a referring Court had asked a question concerning Art 52(4) the CJEU did not consider it necessary to answer it because of the answer to the previous question (CJEU, 8 April 2014, C‑293/12 ea, Digital Rights Ireland ea). 33 The right guaranteed in para 2 corresponds to national constitutional traditions and to the development of national legislation on this issue. 34 This is a fundamental right common to all national constitutions. 35 This Art corresponds to a general principle of law which is included in all European constitutions.

148  Klaus Lörcher e.  Paragraph 5: Principles (Versus Rights) The term ‘principle’ in paragraph 5 is a source of considerable confusion.36 Historically, although the Preamble already referred to ‘rights, freedoms and principles’, paragraph 5 was not part of the (first) Convention’s outcome. Member States opposing fundamental social rights demanded a separate provision on the ‘principles’ and their (only limited) impact. Against this background, ­paragraph  5 defines a lower degree of legal protection for the ‘principles’ compared with the normal legal impact of ‘rights’, thus granting only limited justiciability. The main question is therefore how the two categories are defined. However, before doing so, these two categories have to be distinguished from ‘general principles of EU law’. 1.  The ‘General Principles of EU Law’ In the past, the Court has referred to ‘principles’ (constitutional principles) common to the Member States as a firm, strong – unavoidable – source of rules, compulsory even in the absence of explicit mandatory rules.37 In the social field and before the entering into force of the Charter, the CJEU has, for example, ruled that the following rights constitute ‘general principles of EU law’, which now are ‘also’ recognised in the Charter: –– prohibition of discrimination in particular on the ground of • age (Article 21),38 • sex/gender (Articles 21 and 23), –– paid leave (Article 31(2)).39 Looking at the reasoning behind such acceptances,40 the question arises why not all fundamental (social) rights enshrined in the Charter should at the same time be accepted as ‘general principles of EU law’, combined with the responsibility of the national court, hearing a dispute involving the principle of nondiscrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law.41 36 See for more details Peers and Prechal (n 20) para 52.163. 37 T Tridimas, The General Principles of EU Law 3rd edn (Oxford, European Union Law Library, 2018). 38 CJEU, 22 November 2005, C-144/04, Mangold, para 75. 39 See Contribution on Art 31 in this publication. 40 Looking only at the Mangold case the CJEU refers only to ‘the source of the actual principle underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States’; CJEU, 22 November 2005, C-144/04, Mangold, para 74. 41 CJEU, 22 November 2005, C-144/04, Mangold, para 77. Further steps in this direction have been made in the CJEU (17 April 2018, C‑414/16, Egenberger, para 81) and based on Egenberger in the

Interpretation and Minimum Level of Protection  149 Moreover, the rights provided for in the ECHR are recognised by Article 6(3) TEU42 explicitly as ‘general principles of EU law’. Additionally, rights resulting ‘from the constitutional traditions common to the Member States shall constitute general principles of the Union’s law’. This opens up the possibility for the CJEU to find new principles when taking into account any developments at the national constitutional level. Moreover, even the Preamble could be considered an argument for a horizontal effect of the rights included in the Charter.43 2.  General Qualification of Social Provisions in the Charter as ‘Rights’ Now, conversely, paragraph 5 on principles aimed at limiting ‘rights’ by turning them into mere principles is perhaps one of the most problematic ‘horizontal’ provisions. Generally speaking, the very wording of the ‘Charter of Fundamental Rights’ should, for systematic and substantive reasons, lead to the presumption that the CFREU contains ‘rights’, unless there are clear indications for the classification as ‘principles’. This approach should be applied by the examination of the respective Articles. Even more so if, additionally, the wording of the text strives for such a characterisation. Indeed, this is decisive because these words have been carefully selected. Thus, if the heading or the text itself contains formulations such as ‘right’, ‘must’, ‘no one shall’ or ‘may not’ this speaks decisively for a subjective ‘right’. Conversely, if the wording lacks any reference to a specific legal position the content of the respective provision might possibly be considered to be a ‘principle’. This could apply eg to the wording that a fundamental right (as in Article 10 (2) and Article 16) is only ‘recognised’. Moreover, the ‘Freedom to conduct a business’ as guaranteed by Article 16 does not contain any specific reference to a ‘right’. According to the Explanations, Articles 25, 2644 and 37 (in full), as well as Articles 23, 33 and 34 (in part) can be considered as examples for principles. For the purposes of the employment relation, only Articles 23 and 33 are of specific interest. Concerning the former it is clear that the substance of equality between men and women is a ‘right’ and only in a more general way might it also be

recent judgments: CJEU (GC) 6 November, C-569/16 ea, Bauer ea, in particular paras 89 and 91, and C‑684/16, Max-Planck-Gesellschaft, paras 78 and 80. 42 ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.’ 43 See, to this effect, Bailleux (n 18) para 37. 44 CJEU, 22 May 2014, Case C-356/12, Glatzel, para 74: ‘It must be recalled, as is clear from ­Article  52(5) and (7) of the Charter and the Explanations relating to the Charter of Fundamental Rights … concerning Articles 26 and 52(5) of the Charter, that reliance on Article 26 thereof before the court is allowed for the interpretation and review of the legality of legislative acts of the European Union which implement the principle laid down in that article, namely the integration of persons with disabilities.’

150  Klaus Lörcher considered a ‘principle’. As regards the latter, there is a certain difference in the wording: whereas paragraph 1 contains the wide formulation ‘[t]he family shall enjoy legal, economic and social protection’, in paragraph 2 it says ‘shall have the right’ in respect of several clearly defined elements (dismissal, paid maternity leave, parental leave). Therefore, it appears obvious that Article 33(2) contains ‘rights’. In light of the foregoing, nearly all employment-related provisions contain ‘rights’ (Articles 1, 5, 7, 8, 10, 11, 12, 15, 17(1), 20, 21, 23, 27 to 32, 33 (2)), while the following provisions reflect only principles: Article 16, 17(2), 33(1). f.  Paragraph 6: References to National Laws and Practices Paragraph 6 states that ‘(f)ull account shall be taken of national laws and practices as specified in this Charter’. The legal effect of this provision is far from clear. Mainly, two directions appear possible. The first would give this provision extra weight in relation to the content of the respective articles. The second alternative would see this paragraph as merely a declaratory statement. To date, the CJEU has referred only once to this provision, using the formulation ‘[i]t is apparent from Article 28 of the Charter, read in conjunction with Article 52(6) thereof, that protection of the fundamental right to bargain collectively must take full account, in particular, of national laws and practices’.45 Although this reference to using paragraph 6 might be seen as opting for the first alternative (further limiting the content of the respective right) it is unclear to what degree the Court would ultimately restrict this right. First of all, the wording of the Explanations is not very clear as it ‘refers to the various Articles in the Charter which, in the spirit of subsidiarity, make reference to national laws and practices’. However, the context and the assurance that the newly added provisions would not change the substance (see above) leads one to believe that it is mere duplication without specific added content. Furthermore, it should be recalled that the CJEU has interpreted similar references to national legislation and/or practice as preventing Member States from making ‘the existence of that right … subject to any preconditions whatsoever’.46 Therefore, the second alternative (declaratory nature) should be followed. g.  Paragraph 7: Value of the Explanations During the whole process of elaborating the CFREU and further developments via the Constitutional Treaty to the Lisbon Treaty, the question of defining more clearly what could or would be the content of the rights in the CFREU 45 CJEU, 15 July 2010 (GC), C‑271/08, Commission v Germany, para 38. On Art 28 CFREU, see B Veneziani, ‘Right of Collective Bargaining and Action (Article 28)’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 291ff. 46 See CJEU, Case C‑173/99, BECTU [2001] ECR I‑4881, para 53.

Interpretation and Minimum Level of Protection  151 became increasingly important. Whereas during the first Convention it was still disputed whether such a search for definitions would be necessary the compromise reached was that the existing ‘Explanations’ would in no way be legally binding but could serve as an indicative basis for a tool of interpretation. Their further development became more important. During the Constitutional Treaty discussions, a new paragraph 7 was added to Article 52 CFREU, now stating that the Explanations ‘shall be given due regard’.47 In a slightly less stringent formulation (‘with due regard’) the Lisbon Treaty in Article 6(1)(3) TEU now takes up this principle. In the Court’s words, the Explanations ‘have to be taken into consideration for the interpretation of the Charter’.48 But looking at the Explanations themselves, they demonstrate a less ambitious approach and recall in the Preamble that ‘they do not as such have the status of law’ and that ‘they are [only] a valuable tool of interpretation intended to clarify the provisions of the Charter’. Therefore, the Explanations should be seen merely as one of the elements that always and fully have to be taken account of in the interpretative process but are not the only means of interpretation. Explaining the legal value and function of the Explanations in the interpretation of the Charter, the whole document could be described more as a sort of a commentary rather than as a legal instrument itself. More specific questions require further consideration. The first relates to ‘the sources of those provisions’ expressly mentioned in Article 6(1)(3) TEU. Besides the references to the ECHR, which will be dealt with later, it should be recalled that the sources of the social provisions of the CFREU are mainly the ESC and the RESC, also referred to in the Preamble. The latter therefore form important tools for interpretative purposes and might be considered to be a specific element in the Explanations, which requires additional attention in the interpretative process. A further important question that needs to be clarified concerns the extent to which the respective Explanations could themselves restrict the content of a given fundamental right. Because they are not legally binding and have ‘only’ to be given ‘due regard’ it does not appear possible that a restriction on fundamental rights could be based solely on the Explanations. Moreover, it is important to determine ‘by whom’ due regard must be given to the Explanation. Referring to Article 51(1) one would suppose that the addressees of the Charter are the subject of the duty to pay ‘due regard’ to the Explanations. Surprisingly, however, paragraph 7 refers to ‘the courts of the Union and of the Member States’. This contradiction could be understood in terms of the way in which it reduces the legal impact of the Explanations.

47 See for more details J-P Jacqué, ‘The Explanations Relating to the Charter of Fundamental Rights of the European Union’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) paras 62.03 ff. 48 CJEU, 22 December 2010, C‑279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft, para 32. Additionally, the Preamble refers to the Explanations, see Bailleux (n 18) para 25.

152  Klaus Lörcher In the CJEU’s case law references to the Explanations are not used consistently. Sometimes they are quoted to limit the extent of the rights enshrined in the CFREU49 or (only) to confirm what the CJEU had found previously: 50 It is clear from the explanations relating to Article 52(3) of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (see, to that effect, judgments of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 20, and of 27 May 2014 in Spasic, C‑129/14 PPU, EU:C:2014:586, paragraph 54), that Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union (see, to that effect, judgment of 15 February 2016 in N., C‑601/15 PPU, EU:C:2016:84, paragraph 47).50

Sometimes, they are used in a more declaratory way.51 In some cases they are given – at least to a certain extent – an additional interpretative role eg by ­referring to the sources such as the ESC.52 In any event, they ‘should simply be

49 See, for example, concerning the scope of EU law in relation to Art 20, CJEU, 10 July 2014, C‑198/13, Julian Hernández, para 33: ‘As is apparent from the explanations relating to Article 51 of the Charter, which must be given due regard pursuant to Article 52(7) thereof, the concept of implementation provided for in Article 51 thereof confirms the case-law of the Court as to the applicability of the fundamental rights of the European Union as general principles of the EU law developed before the Charter entered into force (Case 5/88 Wachauf EU:C:1989:321; Case C‑260/89 ERT EU:C:1991:254; and Case C‑309/96 Annibaldi EU:C:1997:631), according to which the requirement to respect fundamental rights guaranteed in the legal order of the European Union is binding on the Member States only when they are acting within the scope of EU law (see, to that effect, Case C‑617/10 Åkerberg Fransson EU:C:2013:105, paragraph 18); in relation to Article 16 CJEU, 18 July 2013, C‑426/11, Alemo-Herron, para 32: That fundamental right covers, inter alia, freedom of contract, as is apparent from the explanations provided as guidance to the interpretation of the Charter (OJ 2007 C 303, p. 17) and which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into account for the interpretation of the Charter (Case C‑283/11 Sky Österreich [2013] ECR, paragraph 42).’ 50 CJEU, 28 July 2016, C‑294/16 PPU, JZ. 51 See, for example, concerning Art 47, CJEU, 30 June 2016, C‑205/15, Toma ea, para 40: ‘according to the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950.’ 52 See, for example, concerning Art 31(2), CJEU 19 September 2013, C‑579/12 RX-II, Strack, para 27: ‘According to the explanations relating to Article 31 of the Charter, which, under the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be taken into account in the interpretation of the Charter, Article 31(2) of the Charter is based on Directive  93/104 and on ­Article 2 of the European Social Charter, signed in Turin on 18 October 1961 and revised in S­ trasbourg on 3 May 1996, and on point 8 of the Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the European Council in Strasbourg on 9 ­December 1989.’ This has again been confirmed by two recent judgments CJEU (GC) 6 November, C-569/16 ea, Bauer ea, para 55, and C‑684/16, Max-Planck-Gesellschaft, para 52.

Interpretation and Minimum Level of Protection  153 taken into due consideration by the judge, which until now has been the case. Thus, they fulfil their function.’53 C.  Intermediate Conclusions Looking at the relationship between general and (Charter-)specific principles of interpretation it would appear legally logical to first try to find a solution to an interpretative problem by applying the specific principles of interpretation as they are enshrined in Article 52(2) to (7). This would also be in conformity with (if not directly required by) Article 6(1)(3) TEU requesting that the Charter’s rights and freedoms ‘shall be interpreted in accordance with the general provisions in Title VII governing its interpretation and application’. Only in case of a remaining ambiguity would the general principles of interpretation apply. However, such an approach is in contrast to the CJEU’s practice, which underestimates (if not neglects) these provisions. III.  MINIMUM LEVEL OF PROTECTION

A.  General Principles The Charter provides for different approaches in order to ensure a minimum level of protection of the rights guaranteed therein. Three dimensions can be separated. First, Article 52(1) requires that one ‘respect the essence of [the] rights and freedoms’.54 Second, Article 52(3) sets the minimum level of protection for ‘corresponding’ rights with the ECHR (see above) and, finally, Article 53 on the ‘Level of protection’ contains important elements for such a minimum (see below). B.  Article 53 Level of Protection The character and content of this Article are still under dispute because the latter defines – or at least tries to do so – the complex relationship between the different legal orders and the level of protection to be provided for. i.  External Function: Guarantee of Non-interference with Other Human Rights Instruments The first function of this Article is to clarify the (external) relationship of the CFREU with the other human rights instruments. Its definition would appear

53 Jacqué 54 See

(n 47) para 62.29. chapter 6 on Limitations in this publication.

154  Klaus Lörcher fairly easy: this provision aims at clarifying that the CFREU is not touching upon other human rights instruments. In other words: all other human rights instruments will remain fully intact and not be prejudiced by any CFREU provision. However, in its Melloni judgment the CJEU objected to this interpretation by clearly cutting short the protection in relation to national constitutions. It stated that: that interpretation of Article 53 of the Charter would undermine the principle of the primacy of EU law inasmuch as it would allow a Member State to disapply EU legal rules which are fully in compliance with the Charter where they infringe the fundamental rights guaranteed by that State’s constitution.55

This interpretation appears highly problematic. It contradicts the wording (‘Nothing in this Charter shall be interpreted as restricting or adversely ­affecting …’). Moreover, it undermines the globally accepted principle of how best to protect human rights in case of conflicting levels of protection in different human rights instruments. This principle of the most-favourable clause requires that no human rights instrument infringe any other; ie the latter should be safeguarded, be it at national or international level (see Article 5(2) ICESCR, Article 5(2) ICCPR, Article 19(8) ILO Constitution, Article 31 ESC and­ Article H RESC, respectively, Article 53 ECHR). In any event, the CJEU’s restrictive approach should at least not apply to social rights, which are conceived only as minimal rules (Article 153(2)(b) TFEU or specific provisions in the respective Directives). By definition, other (ie higher) levels of protection prevail. Therefore, the primacy of EU law cannot apply. ii.  Internal Function: Guarantee of Minimum Protection Provided for by Other Human Rights Instruments The second function is to clarify the CFREU’s ‘internal’ relationship to other human rights instruments: how do the latter impact on the CFREU’s ­interpretation? To answer this question, one might first refer to the fact that the ECHR (explicitly mentioned in Article 53) has already been described as a minimum protection in relation to those CFREU rights that ‘correspond’ to the rights guaranteed by the ECHR (see above Article 52 paragraph 3). More specifically, concerning the other instruments mentioned in Article 53, there is one element in the wording that is decisive concerning ‘international agreements to which … all the Member States are party’ (emphasis added). The significance of this wording cannot be underestimated. First, the heading of



55 CJEU,

26 February 2013, C-399/11, Melloni, para 58.

Interpretation and Minimum Level of Protection  155 the Article – ‘Level of protection’ – indicates that this Article (also) defines the (­internal) level of protection below which no interpretation of the provisions of the Charter itself (including the limitations) is possible. Second, the reference to the ECHR (as already expressed in paragraph 3, see above) is a further, clear confirmation of the interpretation of all sources mentioned in Article 53 CFREU as a minimum requirement. The Court seems to have strengthened this argument by putting the two elements of references to the ECHR in the same context.56 Third, this requirement does not appear in any of the other most-favourable clauses (referred to above). By limiting this Article to only the external function (see above) this element (‘all’ Member States) would have no sense. Indeed, it is inconceivable that the protection of other international human rights instruments would be guaranteed only if all EU Member States have ratified it. Finally, in its Fifth Recital the Charter’s Preamble refers to the ‘rights as they result, in particular, from … international obligations common to the Member States’, thus underlining the importance of the protection deriving from internationals standards accepted (at least) by all Member States. The further question might arise whether and, if so to what extent, the CJEU would also be bound not only by the standards as such but also by the case law of the competent bodies in interpreting the respective provisions. It is clear that this is the case in relation to the ECtHR (‘the rights … result, in particular, from … the case-law … of the European Court of Human Rights’, Preamble, see above). Concerning the other instruments, it appears that the CJEU only reluctantly refers to the case law of other international bodies. It should, however, do so on a more systematic basis, taking into account the developments in international courts. In particular, the International Court of Justice (ICJ) made an important statement when deciding on the impact of the Human Rights Committee’s case law. Indeed, it ‘ascribe[d] great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’.57 More important, probably, is the reasoning, which refers to the ‘necessary clarity and the essential consistency of international law’. Moreover, it should be recalled that the ECtHR is already interpreting the ECHR’s rights in light of the international instruments and the interpretation developed by the competent supervisory bodies.58 This is all the more important

56 CJEU, 9 November 2010, C‑92/09 and C‑93/09, Volker und Markus Schecke, para 51. 57 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Merits, Judgment, ICJ Reports 2010, 639, para 66: ‘Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.’ 58 See above n 27, para 85.

156  Klaus Lörcher as the Preamble refers to the importance of the ECtHR’s jurisprudence for the development of the rights enshrined in the CFREU. Accordingly, in taking these developments into account and in an effort to ensure clarity and consistency the CJEU should not only consider the relevant case law of the competent international bodies but follow it as much as possible. With regard to fundamental social rights, two levels of instruments require more specific consideration. First, the European level is defined by the ‘social counter-part’ of the ECHR: the RESC. Secondly, at the international level, the two main organisations in this respect are the UN and the International Labour Organisation (ILO).59 a.  Specific Role of (Revised) European Social Charter In general terms, the (R)ESC plays an important role in EU law. Based on the ESC adopted more than half a century ago, the updated RESC of 1996 can probably be considered to be the most far-reaching protection of fundamental social rights at the international level.60 Accordingly, it might not be surprising that the EU takes these developments into account by referring to the ESC already in the fifth recital of the TEU, as well as in Article 151(1) TFEU. Concerning the further development of the RESC, it is to be noted that, in its fifth recital, the Preamble of the CFREU refers to ‘the Social Charters adopted by the Union and by the Council of Europe’ (emphasis added). Furthermore, in many Explanations the RESC is mentioned as a source of the fundamental (social) rights.61 In general, it should be recalled that all EU Member States have ratified either the ESC or the RESC. Because the RESC extends the rights enshrined in the ESC, Article 53 CFREU leads to the conclusion that the ESC forms the absolute minimum level. That is most important in respect of Articles 5 and 6 ESC, which guarantee trade union rights. Concerning the RESC, it means that wherever the Explanations refer to any provision of the RESC as a ‘source’ for a (social) right,62 Article 6(1)(3) TEU would have to be understood at least as a sort of minimum level.

59 The CJEU sometimes explicitly refers to ILO Conventions. Besides ILO Convention No 87 on Freedom of Association (11 December 2007, C–438/05, International Transport Workers’ Federation (Viking), para 43, 18 December 2007, C–341/05, Laval, para 90) Convention No 132 on Paid leave might serve as a recent example (see CJEU 4 September 2018, C‑12 /17, Dicu, para 32). 60 See, in general, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) and in particular O De Schutter, ‘The European Social Charter as the Social Constitution of Europe’, 11–51. 61 See the references to the RESC in the Explanations concerning Arts 23, 25, 27, 30, 31, 33 and 34 CFREU. 62 See ibid.

Interpretation and Minimum Level of Protection  157 b.  Specific Role of Further International Instruments It is of the utmost importance that even the international level represents a sound basis for minimum social requirements. On the basis of Article 53 CFREU, it is clear that because the following instruments have been ratified by all EU Member States they therefore form a minimum level of protection. At UN level the International Covenant on Civil and Political Rights (ICCPR) with the protection of freedom of association and, even more importantly the International Covenant on Economic, Social and Cultural Rights (ICESR) should be highlighted. The same applies to the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Interestingly, the Union recently ratified the Convention on the Rights of Persons with Disabilities (CRPD) and is therefore bound by it in the same way as the legal minimum in interpreting the CFREU’s fundamental rights. c.  Impact on Respective CFREU Provisions Against this background, an analysis of the respective CFREU provisions shows that their minimum protection floor is guaranteed by the international instruments ratified by all EU Member States. The table in Annex I shows in its first column the relevant CFREU provisions, while the other columns contain the relevant provisions impacting on the former in the sense of minimum protection. iii.  Further Functions? Moreover, some authors see this as a non-regression provision.63 At least the word ‘currently’ used in the Explanations is seen ‘to emphasise the fact that the adoption of the Charter cannot, by itself, be used as an argument to justify a regression in fundamental rights protection offered by national and international law’.64 IV.  APPLICATION OF THE PRINCIPLES IN PRACTICE

The interesting question to be answered is how the CJEU has applied the relevant principles of interpretation in practice.

63 K Lenaerts, ‘Die EU-Grundrechtecharta: Anwendbarkeit und Auslegung’ (2012) EuR 3, 13; see also J Iliopoulos-Strangas, ‘Die Rechtsfigur des sogenannten sozialen Besitzstandes im europäischen Grundrechtsschutzsystem’ in Peter-Christian Müller-Graff et al (eds), Europäisches Recht zwischen Bewährung und Wandel: Festschrift für Dieter H Scheuing (Baden-Baden, Nomos, 2011) 555, 568 ff. For Art 30 Bruun refers to a corresponding tendency (N Bruun, Article 30, in Bercusson (n 45), point 7.1). 64 B de Witte, Article 53, in Peers (n 20), para 53.05.

158  Klaus Lörcher As a first element of the answer a closer look at the statistical evidence might help. Analysis of the CJEU’s jurisprudence between 2010 and 2017 shows at first glance that the CFREU plays only a minor role in social policy.65 Out of the 2,853 judgments66 delivered during this period only 416 refer to the CFREU. Out of these judgments only 54 deal with social policy. Looking in more detail at these 54 judgments they deal with several articles of the CFREU (sometimes more than one), the most interesting being the ones contained in the ‘Solidarity’ title67 (supplemented by a number of judgments in the other policy areas, in brackets): –– Article 27: in one case: AMS (outside the specific ‘Social policy’ categorisation in one additional case, Glatzel); –– Article 28: in five cases: Hennigs, Prigge, Epitropos tou Elegktikou Synedriou, ÖGB and Bowman (outside the specific ‘Social policy’ categorisation in two more cases: Commission v Germany, Erny); –– Article 30: in three cases: Nisttahuz Poclava, Daouidi, AGET Iraklis; –– Article 31: in 11 cases: Williams, KHS, Neidel, ANGED, Heimann, Lock, Fenoll, Sobczyszyn, Daouidi, Maio, Marques da Rosa (outside the specific ‘Social policy’ categorisation in three more cases: Strack, Sähköalojen ammattiliitto, King); –– Article 33: in three cases: Z, Maïstrellis, H (outside the specific ‘Social policy’ categorisation in two more cases: Alokpa, Depesme). Through these 31 judgments it can be shown that only Article 31 has been attributed a certain specific interest by the CJEU (and to an even lesser extent Article  28). The interest is mainly because nine of these judgments deal with paid leave (Article 31(2)), a principle of EU social law that the Court had recognised long before the entry into force of the Lisbon Treaty making the CFREU legally binding (Article 6(1) TEU). Looking now from the perspective of the ‘social policy’ area a total of 181 judgments were delivered during the respective period. Applying the ­interpretative principles, one criterion could (or should) be the reference to the Explanations (Article 52(7) CFREU, see above).

65 ‘Social policy’ is not defined in the data base. However, as ‘Social Security’ and ‘Staff Regulations of officials and Conditions of Employment of other servants’ serve as separate categories, the respective judgments are excluded from the former category. But it should be noted that not only ‘labour law’ matters are covered by ‘social policy’. 66 As the term ‘judgments’ should be related to ‘normal’ judicial work only those that are published in the ECR will be counted. This excludes all other judgments or orders, even if they are of a substantive nature (Art 99 of the CJEU Rules of Procedure). 67 As Art 29 is not commented on it is not mentioned here; the same applies to the other (social policy-oriented) Arts 34 seq.

Interpretation and Minimum Level of Protection  159 The Explanations concerning the following Articles refer to the following Directives in which the CJEU has delivered the following judgments: –– Article 27: Directives 2002/14/EC (five judgments), 98/59/EC (10 judgments); 2001/23/EC (15 judgments), in total 30 judgments; –– Article 30: Directives 80/987/EEC (eight judgments), 2002/74/EC (five ­judgments), in total 13 judgments; –– Article 31: Directives 89/391/EC (nine judgments), 93/104/EC (13 ­judgments), together with Directive 2003/88/EC (further 12 judgments), in total 34 judgments; –– Article 33: Directives 92/85/EEC (15 judgments), 96/34/EC (11 judgments), in total 26 judgments. Evidently this means that out of the more than 100 judgments – 103 to be precise – that have been delivered in cases in which a Directive explicitly mentioned in the Explanations was at stake, only in less than one-third (31) was the respective CFREU provision referred to. Bearing in mind that the references to the Charter are often only (briefly) used to supplement the reasoning or confirm what the result was already independently of the Charter, it appears clear that the latter is still taken into account only marginally in rights guaranteed by the ‘­Solidarity’ Title. V. CONCLUSIONS

The set of principles and provisions forming (or at least taken into account during) the interpretation process might be complex. However, this should not entail a reluctance to implement these principles on the part of either the CJEU or any other institution or person when interpreting the CFREU’s fundamental social rights. Indeed, they should refer explicitly to the relevant social objectives and context, as well as all specific elements deriving from the CFREU itself, such as the Explanations, which refer to the sources on which the relevant provisions have been based or by which they were inspired, such as the (Revised) European Social Charter. There might be a favourable tendency created by three new CJEU (GC) judgments on anti-discrimination and paid leave.68 This will help to ensure a more coherent, regular and practical application of these principles, in particular in the social policy field and thus make the CFREU a human rights instrument that ensures at least the equal value of economic and social objectives, rights and interests in the EU.



68 See

n 41.

160  Klaus Lörcher ANNEXES

Annex I – International Human Rights Instruments Ratified by All EU Member States Impact as minimum level of protection of the following (provisions in) human rights instruments ratified by all EU Member States or acceded to by the EU

CFREU Article

ICESCR/ICCPR ILO Convention (R)ESC ECHR Other (Article) (No) (Article)69 (Article)70 Conventions 5(1) and (2)

8

7

17

29, 105

1(2)

4 8

8

[8]

10(1)

18

11(1)

19

12(1)

8/22

15(1)

6

9 10 87, 98

5 and 6

11

1(2)

15(3)

19(4)

[14 and Prot. 12]

17

Prot. 1 Art. 1

17(2)

[Prot. 1 Art. 1]

Berne Convention

[14 and Prot. 12]

CEDAW, CRPD, CERD

21

2(1)/2(1), 26

111

23

3, 7(a)(i) and (c) 100

27 28

4§3, 20

CEDAW

21, 22, 28, 29 8(1), in ­particular (d)

30 31

E, 15, 19§4,

7(b) and (d)

87, 98

6

[11]

4§4, 24

{8}

2, 3 and 26 {8} (Continued)

69 Insofar as the Explanations refer explicitly to respective Articles in the ESC or RESC they are underlined with a single or double line, respectively. 70 See above s II.B(ii)(c); references to Arts in [ ] brackets are not mentioned in the Explanations to Art 52(3) but are mentioned either in the Explanations to the specific CFREU articles (in this case they are underlined) or are, in substance, (also) corresponding; references to { } brackets contain elements of the respective Article as recognised by the ECtHR in its case law.

Interpretation and Minimum Level of Protection  161 Impact as minimum level of protection of the following (provisions in) human rights instruments ratified by all EU Member States or acceded to by the EU

CFREU Article

ICESCR/ICCPR ILO Convention (R)ESC ECHR Other (Article) (No) (Article)69 (Article)70 Conventions 32

138, 182

7,

33(2)

8, 27

47(1)

13

47(2) and (3)

6(1)

Annex II – International Human Rights Instruments Ratified not by All EU Member States

CFREU Article

Impact of the following (provisions in) human rights instruments UN Convention

12

ILO Convention (No)

UNESCO

151

15 (1)

122, 142

15 (3)

CMW

21

CERD, CMW

Convention on Discrimination in Education

27

135, 158

28

154

30

158

31 (1)

155, 187 (and further specific Conventions)

31 (2)

1, 14

32

78, 79

33 (2)

3, 103, 183; 156

162

8 Procedure: Litigating before EU Courts in the Light of the Charter ZANE RASNAČA

I. INTRODUCTION

T

he common wisdom among lawyers is that human rights are only as real as their enforcement.1 Fundamental social rights included in the Charter are no exception. If they are not respected and enforced, then they do not matter. This chapter looks at one condition that is often decisive for the enforcement of fundamental rights – the existence of opportunities and prospects for litigation at the EU level (enforcement by judicial means).2 One way in which the adequacy of judicial enforcement can be evaluated is by assessing the constitutive elements of what political scientists call the ‘legal opportunity structure’.3 The legal opportunity structure consists of two elements, both equally important for facilitating the litigation (and enforcement) of rights: (i) judicial access and (ii) material and procedural law. The importance of the first cannot be overestimated because access is the key precondition for any involvement of the courts in asserting one’s rights. But access alone is not enough; also crucial for bringing a case are certain elements of procedural law (the overall way in which the business of the court is to be conducted, that is, ‘equality of arms’4) and material law 1 L Farkas, ‘Limited Enforcement Possibilities Under European Anti-discrimination Legislation – A Case Study of Procedural Novelties: Actio Popularis Action in Hungary’ (2010) 3 Erasmus Law Review 181. 2 Please see ch 27 by Klaus Lörcher for an analysis of the EU law requirements for national ­judicial procedures embedded in Art 47 CFREU. 3 G Fuchs, ‘Strategic Litigation for Gender Equality in the Workplace and Legal Opportunity Structures in Four European countries’ (2013) 28(2) Canadian Journal of Law and Society 189, 192. See also C Hilson, ‘New Social Movements: the Role of Legal Opportunity’ (2002) 9(2) Journal of European Public Policy 238; EA Andersen, Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation (Michigan, University of Michigan Press, 2004) Ch 8. 4 CJEU, 30 June 2016, C-205/15, Toma, para 47; CJEU, 6 November 2012, C-199/11, Otis and Others, paras 71 and 72; CJEU, 17 July 2014, C-169/14, Sánchez Morcillo and Abril García, para 49.

164  Zane Rasnača (for example, the likelihood that the court will rule in one’s favour based on its past case law). These further elements are extremely relevant in practice because a decision to bring a case is rarely made simply because an opportunity to litigate exists formally. Not only are individuals more likely to enforce their rights when legal ­opportunity structures are strong and conducive to litigation, but legal mobilisation through courts is also more likely to take place.5 This chapter will therefore look at the procedural aspects for enforcing social rights before EU courts by analysing the main elements of the EU’s legal opportunity structure. First, section II briefly introduces the main procedures before the EU-level courts, emphasising elements relevant for the enforcement of the rights in the Charter.6 Second, in section III we look at types of access to EU courts (individual and collective) and show that the protection of fundamental social rights in the EU could be improved by broadening the opportunities for both individual and collective access. Finally, because, when litigation is considered, the approach and weight given by the court to a certain legal instrument in its past case law is at least as relevant as the procedural rules, in the last part of the ­chapter (section IV), the main patterns of the CJEU’s approach to the social rights provisions in the Charter are summarised with a view to obtain an insight into how effective the Charter has been so far. Further analysis of procedural and material aspects, focussing on specific Charter provisions, can be found in Part II of this book. In this context it is important to emphasise the analysis of Article 47 CFREU (the right to an effective remedy and to a fair trial), because how this provision has been interpreted by the CJEU sets some minimum standards for assessing the adequacy of procedures before EU courts. Detailed analysis of that case law can be found in chapter 27.7 In this chapter I show that, when it comes to (fundamental) social rights, the CFREU is (still) used rather sporadically and even reluctantly by the CJEU. While at the time the CFREU came into force at Lisbon, it was predicted to have great potential to advance social rights protection in the EU,8 such an advance has been burdened by the nature of judicial procedures before EU courts, the limited access to EU courts for actors with a direct interest in advancing social rights at European level and also by the current CJEU’s approach to the Charter and its limited reliance on this legal instrument. Indeed, when these procedural

5 Fuchs (n 2) 191. 6 Further detailed descriptions of the relevant procedures in the broader context of European labour law can be found in B Bercusson, European Labour Law 2nd edn (Cambridge, Cambridge University Press, 2009) 467–518. 7 Please see ch 27 by Klaus Lörcher. 8 B Bercusson (ed), European Union Labour Law and the EU Charter of Fundamental Rights (Brussels, ETUI, 2004) 10.

Procedure  165 and material inadequacies are taken into consideration, it comes as no surprise that the Charter has not (yet) led out of the tunnel and into the light in the process of ensuring adequate social rights’ protection across the EU. II.  OVERVIEW OF (JUDICIAL) PROCEDURES

The EU judicial system consists of two supranational courts (the CJEU and the General Court) and the national courts when they apply EU law (together: EU courts). According to the CJEU, ‘the judicial authorities of the Member States … are responsible for ensuring that [Union] law is applied and respected in the national legal system’.9 Depending on the procedure used, litigants may have to go through the national judicial system in order to obtain access to the CJEU and in this sense the CJEU is intrinsically connected with the national courts and also largely ‘dependent’ on national procedural rules and remedies. However, while the national courts have the power to interpret and apply EU law, only the CJEU and the General Court have the power to review the legality of EU acts.10 Therefore, without adequate access to EU-level courts the EU cannot claim to have a ‘complete system of legal remedies and procedures designed to ensure judicial review’.11 Five procedures before the CJEU and the General Court are most relevant for litigating the social rights under the Charter: the action of annulment (Article 263 TFEU), the failure to act (Article 265 TFEU), the p ­ reliminary ­reference procedure (Article 267 TFEU), the infringement procedure (Article 258 TFEU) and the action for damages (Articles 268 and 340 TFEU). In addition, in some instances there is a possibility to seek redress before the European Ombudsman, and in the future some grievances will be possibly dealt with by the European Labour Authority.12 A.  Action for Annulment Annulment action (Article 263 TFEU) makes it possible to question the legality (validity) of acts adopted by the EU (both legislative and non-legislative).

9 CJEU, 06 December 1990, C-2/88, Zwartfeld and Others v Commission, para 17; CJEU, 22 October 2002, C-94/00, Roquette Frères, para 93. 10 CJEU, 22 October 1987, C-314/85, Foto Frost, para 15 and see also Art 263 TFEU. 11 CJEU, 25 July 2002, C-50/00 P, UPA v Council, para 30. In addition, since Lisbon 19(1) TFEU requires Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. 12 See European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing a European Labour Authority, COM(2018) 131 final.

166  Zane Rasnača It is not possible, however, to question the legality of EU primary law (such as the CFREU). Instead, the Charter can be used as a measure against which the legality of EU acts is reviewed. The action for annulment is brought directly before the General Court (­without the involvement of national courts) and natural and legal persons can bring such cases ‘against [acts] addressed to [them] or … of direct and individual concern to them’.13 There are four grounds for bringing a case: lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. Traditionally, this action has been of special interest for a wide set of (collective) stakeholders and for individuals directly affected by the decisions of EU institutions.14 At the same time, as shown below in the sections on individual and collective access, the admissibility rules have been interpreted very strictly; therefore, this procedure, when it comes to enforcing fundamental social rights, is rarely available. Importantly, however, according to Article 40 CJEU Statute, the intervention rights directly before the CJEU are open to ‘any other person which can establish an interest in the result of a case submitted to the Court’. Therefore, interested parties, such as trade unions or European social partners, could seek intervention in actions for annulment, for example, where the right to collective bargaining or the right to strike (Article 28 CFREU) is concerned. So far, however, this opportunity has not been used. B.  Action for Failure to Act When an EU institution has failed to address to an individual any act other than a recommendation or an opinion, the individual, after requesting that the institution acts, can bring a claim for an infringement to be established (Article 265 TFEU). Theoretically, this procedure could be used for requesting action from EU institutions needed for adequate enforcement of the (positive) rights in the Charter in situations in which institutions have failed to act. However, in practice, this procedure is ineffective.15 This is so because the individual is first obliged to submit a request to act to the breaching institution and a simple refusal in response would mean that action of annulment would have to be brought instead. Further, if the institution still does not act, the burden of proof would

13 Art 263(4) TFEU. 14 See, eg GC, 17 June 1998, T-135/96, UEAPME v Council, the case that triggered changes in the way ‘European social partners’ are defined by the European Commission. 15 I Daukšienè and A Budnikas, ‘Has the Action for Failure to Act in the European Union Lost its Purpose?’ (2015) 7(2) Baltic Journal of Law and Politics 209.

Procedure  167 be very heavy because the Treaties and especially the Charter, as interpreted by the CJEU, usually leave very broad discretion for EU institutions (see also section III). C.  Preliminary Reference Procedure Any Member State court has the right to refer a preliminary reference to the CJEU in case of a question about the interpretation or validity of a secondary EU law measure or the interpretation of the Treaties (Article 267 TFEU). Concerning the Charter (a piece of primary law), only a national court can request an interpretation; however, a court or tribunal ‘against whose decisions there is no judicial remedy under national law has the obligation to bring the matter before the Court’ (Article 267(3) TFEU). In practice this has, by far, been the most important procedure in litigating EU social rights.16 Even though this procedure excludes direct access to the CJEU (access can be obtained only via national courts), failing locus standi for action of annulment and failure to act, a preliminary reference procedure is often the only option available for seeking justice. Accordingly, the access to EU courts in preliminary references could be most relevant for stakeholders interested in advancing social rights protection on the EU level. All the parties in the national proceedings are parties in the proceedings before the CJEU, but only Member States and EU institutions have direct (third party) intervention rights without having obtained access at the national level.17 Therefore, for example, trade unions and the European social partners, in order to get to the CJEU, should inquire whether they have access at the national level either as applicants or as third-party intervenors. D.  Infringement Procedure Infringement procedure (Article 258 TFEU) does not offer direct or even indirect access to EU courts for natural or legal persons (including trade unions); however, it is one of the main tools for enforcing Member States’ compliance with EU law, including the CFREU. Accordingly, submitting complaints with information about (possible) Member State breaches of the Charter to the European Commission could be one way of facilitating starting an infringement procedure. Indeed, the Commission itself states that complaints are the key source of information for starting infringement procedures.18 The effectiveness 16 See ch 7 by Klaus Lörcher, in particular s IV, ‘Application of the Principles in Practice’. 17 Art 40 of the CJEU Statute read together with Art 23 of the Statute as lex specialis. 18 Information on how to submit the complaint is available under: https://ec.europa.eu/info/ about-european-commission/contact/problems-and-complaints/how-make-complaint-eu-level/ submit-complaint_en.

168  Zane Rasnača of this route is, however, greatly diminished by the broad discretion left to the Commission in deciding whether to initiate infringement procedures,19 and the lack of any intervention possibilities for the stakeholders once the case has been brought before the CJEU. E.  Action for Damages The European Union is liable for any damage caused by its institutions or by its civil servants when they perform their duties (Article 340 TFEU), and the General Court has the jurisdiction at first instance to hear such cases (Articles 256(1) 268 and 340 TFEU). In contrast to the action for annulment, the action for damages is intended not to nullify a particular measure, but rather to make good damage caused by an EU institution in the exercise of its functions.20 This procedure might gain significance in the area of social policy and labour law in relation to recent crises, and especially so because of the recent judgment Ledra Advertising, in which the CJEU was asked on appeal to assess the liability of the European Central Bank and the European Commission for breaching its obligation to ensure that the Memorandum of Understanding complies with EU law and in particular the Charter.21 In this case the CJEU ruled that the Charter applies to the EU institutions even when they act outside the EU legal framework.22 Although in the end the CJEU ruled that the Commission did not contribute to the breach of the applicant’s right to property under Article 17(1) CFREU, overall this judgment shows that action for damages potentially has a very significant role to play in litigating one’s rights under the Charter and holding the EU institutions liable. F.  Other Procedures Finally, there are some quasi-judicial and administrative routes for seeking enforcement of obligations under the Charter. First, Article 20(1)(d) TFEU gives any European citizen a right to petition the European Parliament, to seek redress before the European Ombudsman and to submit requests and complaints to any other EU institutions and to obtain a reply in return (see also Article 24 TFEU). 19 In GC, 20 January 2011, T-487/10, Ruipérez Aguirre and ATC Petition v Commission. The General Court rejected the obligation for the Commission to initiate an infringement procedure concerning ia breach of Art 28 CFREU. See also beyond the area of social policy CJEU, 14 February 1989, C-247/87, Star Fruit v Commission, para 11; CJEU, 24 March 2009, C-445/06, Danske Slagterier, para 44. 20 CJEU, 02 December 1971, C-5/71, Schöppenstedt. 21 CJEU, 20 September 2016, C-8/15 P, Ledra Advertising, para 66. 22 Such as, according to the Court, is the situation under the European Stability Mechanism (Ledra Advertising, para 67).

Procedure  169 Second, in line with Article 228 TFEU, the European Ombudsman can receive complaints not only from Union citizens but also any natural or legal (not necessarily natural) person residing in the EU concerning maladministration by EU institutions and bodies (eg unfair conduct, discrimination, abuse of power, refusal to provide information, unnecessary delays and incorrect procedures). The Ombudsman conducts inquiries either based on the complaint or his own initiative. Where an instance of maladministration is established, however, the result is not legally binding; the only right the Ombudsman has is to issue a recommendation for the (guilty) institution, a recommendation that is not enforceable before a court. Under this procedure the Ombudsman, for example, issued a recommendation finding that by not initiating an infringement procedure in a situation in which Germany had breached the Working Time Directive 2003/88/EC the Commission had not fulfilled its duties under the Treaties. The complaint before the Ombudsman that triggered the recommendation was brought by a German doctor. In the end, however, the Commission refused to comply with the recommendation, and because it is not legally binding, it has not been effectively enforced,23 thus illustrating the limited effectiveness of this route. Third, a recent Commission proposal seeks to introduce a mediation process before the European Labour Authority (ELA) (yet to be established) in disputes between national labour authorities and in cases of cross-border labour market disruptions.24 At the moment, no stakeholder involvement is envisaged but this might still change during the negotiations and in their role in facilitating coordination among stakeholders in addressing. Labour market disruptions25 the involvement of the relevant trade unions (or at least, pan-European trade union organisations), while not yet explicitly proposed, seems at least implied. Concerning fundamental rights, the proposal provides for a role for the ELA in protecting rights relating to the free movement of persons and workers (­Articles 15 and 45 CFREU), the right of access to placement services (Article 29 CFREU), in supporting the exercise of rights across borders in the field of fair and just working conditions, social security and health care (Articles 31, 34 and 35 CFREU) and non-discrimination (Article 21 CFREU).26 However, no meaningful procedures for achieving this objective have been proposed. Moreover, it seems that the ELA will act only at the request of national authorities and will not have an autonomous right to initiate investigations (eg based on complaints by stakeholders). Therefore, it is doubtful that the ELA will play any meaningful role in enforcing the fundamental social rights under the Charter. In sum, while there are certain judicial routes for enforcing one’s rights at the EU level the options are clearly limited. The critical question is, who can ­actually 23 See Summary of decision on complaint 3453/2005/GG against the European Commission ­available at: https://www.ombudsman.europa.eu/en/cases/summary.faces/en/3619/html.bookmark. 24 European Commission, COM(2018) 131 final (n 12), 2. 25 ibid 18. 26 ibid 9–10.

170  Zane Rasnača use these procedures in practice and how much access to EU courts do they ensure for both individual and collective actors when social rights are involved? III.  LIMITS TO ACCESS TO EU COURTS

Many provisions in the Charter on individual and collective social and labour rights are highly important for both individual workers and workers’ ­organisations27 across Europe.28 The access to EU courts is therefore not only relevant for protecting individuals in isolated instances but also has high strategic significance for collective actors and organisations such as trade unions or NGOs.29 Collective actors with an even more ‘special’ interest in how social rights are enforced across the EU, and accordingly, in access to EU courts, are the European social partners. They have been given a special role in the ­legislative procedure under the Social Policy title, and, since Lisbon, Article 152 TFEU expressly recognises the need for the Union to promote their role at the EU level.30 Individual access for natural and legal persons allows them to defend their own interests. Collective access, in contrast, allows collective actors to obtain redress for grievances either on behalf of a victim or without identifying one (eg by acting in the interests of the public as such, for example, where a Member State has not implemented certain EU law requirements, even if nobody has yet suffered). Various social rights are often defended in a collective way (eg the right to strike) and by collective actors (eg trade unions), and therefore what often matters for the enforcement of social rights is collective rather than individual access to EU courts. However, in reality, access to the EU judicial system is limited in various ways, and even more so when fundamental (social) rights are involved and defended by collective actors such as trade unions. There is a clear need for improvements and alternatives for the current status quo.

27 And employers and employers’ organisations as well. 28 To name a few: Art 12 on freedom of assembly and of association, Art 15 on freedom to choose an occupation and the right to engage in work, Art 23 on equality between men and women including employment, work and pay, Art 28 on the right to collective bargaining and action, Art 30 on protection in the event of unjustified dismissal and Art 31 on fair and just working conditions and others. 29 See, among others, B Fitzpatrick, ‘Towards Strategic Litigation? Innovations in Sex Equality Litigation Procedures in the Member States of the European Community’ (1992) 8(3) International Journal of Comparative Labour Law and Industrial Relations 208; Fuchs (n 2); D Anagnostou and S Millns, ‘Gender Equality, Legal Mobilization, and Feminism in a Multilevel European System’ (2013) 28(2) Canadian Law Journal 115. 30 See also the ‘Recommendations’ by the Transnational Trade Union Rights Experts Network on Article 152 TFEU in Niklas Bruun, Klaus Lörcher and Isabelle Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012) 307–22, paras 55ff.

Procedure  171 A.  Individual Access Direct access to the CJEU and the General Court for legal and natural persons other than the so-called ‘privileged applicants’ (Member States and EU institutions) is considerably limited. Often access via national courts (preliminary reference procedure) is the only option. Moreover, the access to EU courts is in no way broader in situations in which fundamental rights are involved; in fact, it might be even more complicated than in cases in which other types of EU law are at stake (see also section IV below). Finally, there are no extra opportunities for organisations with a recognised significant interest in defending social rights at the EU level, such as the European social partners. Direct access to the General Court for natural and legal persons is via procedures of annulment, failure to act and action for damages. For the application to be admissible under Article 263 TFEU the applicant has to either be specifically addressed in the contested measure or ‘individually’ and ‘directly’ concerned.31 Direct concern requires that the contested measure directly affect the situation of the applicant and that there be no implementation measures.32 Individual concern, ever since Plaumann, has been understood as the need for the parties to show that they have features or characteristics showing that the measure in question affects them as if they were directly addressed by the contested measure.33 These criteria mean that, for example, a complaint that a directive is invalid because it infringes an individual’s (social) rights under the CFREU would be inadmissible, because the directive requires implementing measures. In addition, for the action for damages to be successful the law infringed has to confer rights directly on the individual, the breach by the EU institution must be ‘sufficiently serious’ and a causal link should be established between the breach and the damage.34 The very stringent ‘sufficiently serious breach’ condition is applied by the CJEU and the General Court in cases involving breaches of fundamental rights.35 For this reason, the action for damages has somewhat limited potential in adequately addressing social rights breaches by EU ­institutions.

31 M Rhimes, ‘Nothing Ado About Much? Challenges to Anti-dumping Measures after the Lisbon Reforms to Art 263(4) TFEU’ (2017) 7(2) European Journal of Risk Regulation 374, 375; JA Usher, ‘Direct and Individual Concern – An Effective Remedy or a Conventional Solution?’ (2003) 28(5) European Law Review 575, 576. 32 CJEU, 10 September 2009, C-445/07 P, Commission v Ente per le Ville vesuviane, para 45; CJEU, 05 May 1998, C-404/96 P, Glencore Grain v Commission, para 41. 33 CJEU, 28 May 2015, C-456/13 P, T&L Sugar v Commission, para 63; CJEU, 03 October 2013, C-583/11 P, Inuit, para 72; CJEU, 19 December 2013, C-274/12 P, Telefonica v Commission, para 46. 34 CJEU, 04 July 2000, C-352/98 P, Bergaderm, para 42. 35 Eg CJEU, 02 December 1971, C-5/71, Schöppenstedt.

172  Zane Rasnača There is no way to bring a claim similar to constitutional complaints recognised in most Member States to make sure that an individual’s fundamental (social) rights under the Charter are not infringed. There are no special or extra possibilities to access the CJEU for claims having a fundamental rights quality.36 Interestingly, among others, Norbert Reich has suggested that creating a special ‘European Fundamental Rights action’ would be necessary;37 and such action could be used against EU institutions when they infringe Article 6(2) TEU (now, 6(3) TEU) or rights guaranteed subjectively to individuals under other provisions of the Treaties (including, now, the Charter). Currently, one can make the argument that the available judicial procedures do not ensure effective court access in cases in which rights included in the Charter or the ECHR, which has special significance in the EU system (see Article 6 TEU), are breached by the EU institutions. An attempt to remedy this judicial protection gap by the Treaty makers at Lisbon (the EU ‘shall accede’ to the ECHR, Article 6(2) TEU) was explicitly rejected by the CJEU.38 A special case concerning direct access could be made for the European social partners in situations covered by Article 155(2) TFEU. The Treaty gives the European social partners a role in the legislative procedure; they have the right to submit (framework) agreements for implementation in EU law. Recently, in two instances the Commission failed to forward such agreements to the Council for a (legislative) decision.39 Here an argument could be made that the Commission not only breached Article 152 TFEU (autonomy of the social partners) but also failed to support and advance the social partners’ right to bargain collectively in line with Article 28 CFREU and the rules on the European Social Dialogue set out in the Social Policy title (Articles 152, 154 and 155 TFEU). Moreover, it has been argued – most notably by Brian Bercusson – that special prerogatives in terms of locus standi should be recognised for the European social partners more generally. By analogy with the judgment in Chernobyl,40 in which the CJEU considered the European Parliament’s prerogatives to constitute ‘one of the elements of the institutional balance created by the Treaties’, he argued that given the special role played by the European social partners in the legislative procedure within the Social Policy title41 it may be possible for them

36 N Reich, ‘Judicial Protection in the EU’ (2005) 1(2) Revista Direito GV 125. 37 N Reich, ‘Zur Notwendigkeit einer Europäischen Grundrechtsbeschwerde’ (2000) 33(9) Zeitschrift für Rechtspolitik 375. 38 CJEU, 18 December 2014, Opinion 2/13 on the accession of the EU to the ECHR. 39 European framework agreement on the protection of occupational health and safety in the hairdressing sector, available at: http://www.uni-europa.org/wp-content/uploads/2016/06/EFA_ OHS_HairdressingSector_signed_20160623.pdf; European Framework agreement on information and consultation rights in central government, available at: https://www.epsu.org/sites/default/files/ article/files/EU_agreement_info_and_consul_rights_central_govern_SIGNED_EN.pdf. 40 CJEU, 04 October 1991, C-70/88, Parliament v Council, para 23. 41 Bercusson (n 8) 505.

Procedure  173 to claim that they, too, should be recognised as ‘privileged’ applicants on the same ground the European Parliament was.42 One indirect possibility that currently exists is the obligation for the Commission to ask an opinion from the European social partners in cases in which European framework agreements are interpreted by the CJEU. All of these (cross-sectoral) agreements implemented via directives in EU law contain a clause requiring the Commission to obtain an opinion from the signatory parties. However, in practice, it is unclear whether the Commission seeks this opinion in all such cases because it has failed to do so in the past43 and what happens when the opinion received clashes with the Commission’s own position that it pleads before the CJEU. While one could imagine introducing a requirement that the Commission request such an opinion in a broader range of cases (eg including fundamental social rights), such an approach might be as ineffective as the existing practice under the framework agreements. Insufficient direct access opportunities mean that the usual route in cases involving fundamental social rights would be the national courts and the preliminary reference procedure (Article 267 TFEU). Such access, however, is restricted by the (full) discretion national courts enjoy on deciding whether to refer a case to the CJEU.44 Only the last instance courts at the national level have a duty to refer (Article 267(3) TFEU).45 However, even they have discretion in situations of ‘acte clair’ – eg the correct application of EU law being so obvious as to leave no scope for any reasonable doubt.46 In the context of the Charter, a referral would be mandatory in instances in which the situation is covered by EU law47 and where there is reasonable doubt about how the Charter should be interpreted/applied in the particular case. Overall, their discretion is broad. To limit this discretion the ECtHR has ruled that where a national court of last instance fails to explain its refusal to refer under EU law, this violates the right to a fair trial in Article 6 ECHR.48 Unfortunately, an obligation to explain is not the same as an obligation to refer. Therefore, if the national court of last instance has refused to refer, the only way to challenge this would be based on state liability rules under EU law.49

42 ibid 509. 43 See CJEU, 16 September 2010, C-149/10, Chatzi, para 23 as an example of bad practice, where the opinion had not been requested by the Commission. The Commission does request the ETUC’s opinion in some cases; however, there are no publicly available data on whether or not the Commission does this in all the cases where the interpretation of the framework agreements is requested by the national court. 44 H Micklitz, ‘The Transformation of Enforcement in European Private Law: Preliminary Considerations’ (2015) 4 European Review of Private Law 491, 499. 45 ibid. 46 See CJEU, 06 October 1982, C-283/81, Cilfit and Others, 3420–21. 47 For more on this please see ch 6 by Aristea Koukiadaki. 48 ECtHR, 8 April 2014, No 17120/09, Dhahbi v Italy, paras 31–34. 49 CJEU, 19 November 1991, C-6/90, Francovich.

174  Zane Rasnača Member States are liable for loss and damage caused by breaches of Union law attributable to them.50 In practice, however, it would be extremely difficult and time-consuming to establish damages caused by the national court by not requesting a preliminary reference. Be that as it may, in the EU judicial system enormous emphasis is put on the national courts and national procedures, and in the vast majority of situations whether or not an individual whose interests are at stake (eg a worker or a trade union defending its own interests) will be able to go to the court will depend on the access rules to courts at the national level.51 The CJEU has, however, developed some general standards. According to the CJEU, Article 19(1) TFEU requires Member States to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.52 The national legal order has to designate the competent courts and to lay down the procedural rules to ensure protection of rights that individuals acquire through the direct effect of Union law; and such rules cannot be less favourable than those governing the same right of action on an internal matter.53 In the context of state responsibility the CJEU has, for example, held that barriers for obtaining access to employment tribunals when demonstrated to deter applicants wishing to rely on EU labour rights can constitute a breach of a Member State’s obligations.54 Further, in Dekker, in which Dutch law required that legal action based on the principle of equal treatment could succeed only where the applicant could prove fault by the employer, it was held to be in breach of EU law.55 In sum, access to EU-level courts for natural and legal persons is limited. Direct access has been significantly weakened by the very narrow interpretation of locus standi rules. In practice, the biggest share of the burden for ensuring adequate judicial enforcement of fundamental social rights stemming from EU law therefore rests on national judicial systems (and preliminary ruling procedure). Where adequate national procedures do not exist, it might be possible to bring a claim based on state responsibility, but this option would be lengthy and require significant resources. B.  Collective Access Interests are being protected collectively in two situations: (i) when organisations, such as trade unions, have the right to act on behalf of identified individuals (to take over their claim); (ii) when organisations act on behalf of unidentified

50 ibid para 35. 51 Reich (n 36) 125. 52 GC, 07 July 2015, T-312/14, Federcoopesca and others v Commission, paras 27–31; GC, 27 November 2012, T-541/10, ADEDY and others v Council, para 93. 53 CJEU, 16 December 1976, C-45/76, Comet BV, para 13. 54 Bercusson (n 8) 494. 55 CJEU, 08 November 1990, C-177/88, Dekker; see also ibid 494.

Procedure  175 individuals, namely in pursuing the protection of a discriminated group without the need to obtain agreement from victims or in the general (public) interest as such. When collective actors, such as trade unions, act to defend their own interests, the situation is covered by rules on individual access (see the previous section). ‘Collective access’ to EU-level courts is even more restricted than individual access. Similar to individual access, collective access to EU courts is largely dependent on national law. In preliminary ruling procedures, if the national law allows collective access, then the organisations representing collective interests will be parties also before the CJEU. While only a handful of Member States allow collective interest bodies such as NGOs to take action in the public interest without representing an individual victim in cases of fundamental rights breaches,56 for the trade unions such access at the national level has been granted much more often. At the same time, opportunities to bring a claim without identifying victim (eg where trade unions do not act to defend interests of their members but rather to defend individuals who have not explicitly assigned their claims to them or in the general interest), are still fairly limited in the EU Member States.57 In direct actions at the EU level – that is, before the General Court (eg based on Article 263(4) TFEU) – the ‘collectivism’ aspect plays an even more limiting role. For a trade union or another organisation to comply with the requirement of ‘direct and individual concern’, it has to show how it, rather than an individual worker, is individually concerned in a breach of EU law because, according to the settled case law, it is not sufficient that the members of the group are individually concerned;58 and only when the group itself is individually concerned does it have a right to action.59 This means that direct collective access to EU-level courts is precluded and the only option remains indirect access via national courts. While direct collective access at the EU level does not exist, the EU legislator in some instances has taken measures to facilitate collective access at the national level. In all the ‘new generation’ equality directives the following provision is replicated: Member States shall ensure that associations, organisations or other legal entities, which have … a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.60 56 Farkas (n 1) 185. 57 For details see European Commission, Communication ‘Towards a European Horizontal Framework for Collective Redress’, COM(2013) 401 final. 58 Reich (n 37) 128; CJEU, C-16/62 and C-17/62 Conf. des prod. de fruits v Council. 59 Reich (n 37) 128. 60 Art 7(2) Racial Equality Directive (2000/43/EC); Art 9(2) Equal Treatment Framework Directive (2000/78/EC); Art 17(2) Gender Equality Employment Directive (2006/54/EC); Art 8(3) Gender Equality Goods and Services Directive (2004/113/EC); Art 9(2) Gender Equality Self-Employment Directive (2010/41/EU).

176  Zane Rasnača Thus, the EU legislator has envisaged a strengthened role for civil society actors to engage in judicial and/or administrative proceedings in pursuit of equality goals.61 As convincingly argued by Elise Muir and Sarah Kolf, such an expansion of EU law towards ensuring more adequate access to courts for collective actors has had a significant impact on facilitating litigation in some Member States.62 However, for now, the need always to act only with the agreement of the victim significantly limits access. EU-level rules on collective access have not been adopted in areas covered by the Charter other than equality and non-discrimination. Also, the CJEU has been favourable towards domestic legislation on collective enforcement, going even beyond EU law requirements.63 In Feryn the CJEU ruled that the Racial Equality Directive (2000/43/EC) does not preclude Member States from granting more favourable rules for associations with a legitimate interest.64 In Accept the Court went further and ruled that the need for collective actors to get an agreement from the individual victim within the meaning of Article 9(2) of Equality Framework Directive 2000/78/EC, does not prevent Member States from giving certain organisations rights to bring proceedings without acting in the name of a specific complainant or even in the absence of an identifiable complainant.65 The CJEU considered that such national rules provide for a higher level of protection than the Directive. It remains to be seen whether the EU legislator in the future will implement such a – higher – standard also directly in EU rules and therewith ensure that collective actors such as trade unions have better opportunities to protect fundamental rights across the EU.66 One could imagine expanding and facilitating collective access to the EU (including national) courts also in other areas of significant social interest where there either already are secondary law measures in place or where they will be adopted in the future. Such an approach by the EU legislator would strengthen the enforcement of EU fundamental social rights. Especially suitable areas seem to be workers’ right to information and consultation (Article 27 CFREU), the right to collective bargaining and action (Article 28 CFREU) and the right to working conditions that respect workers’ right to health and safety (Article 31 CFREU); the former traditionally has a collective dimension and the latter represents an area of EU law with an elaborate EU-level legal framework and therefore a boost to judicial enforcement would be especially welcome. 61 Anagnostou and Millns (n 29), 115. 62 E Muir and S Kolf, ‘Belgian Equality Bodies Reaching out to the CJEU: EU Procedural Law as Catalyst’, EUI Working paper, LAW 2017/17 (eds E Muir, C Kilpatrick, J Millerand, B de Witte) 21. 63 ibid 31. 64 CJEU, 10 July 2008, C-54/07, Feryn. 65 CJEU, 25 April 2013, C-81/12, Asociatia Accept. 66 There are plans to broaden collective redress possibilities in the area of consumer protection (see, most recently, the Commission’s Report on the implementation of the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (2013/396/EU), COM(2017) 40 final.

Procedure  177 Overall, concerning fundamental social and labour rights, there are strong arguments for broadening collective access opportunities. First, in fundamental rights disputes, victims of human rights abuses are always in an inherently more unfavourable position. This is especially so when it comes to fundamental social and labour rights because also the balance of power between workers and employers is inherently uneven. Collective entities such as trade unions are therefore important for rebalancing these power relationships, and because they are better resourced, they are better placed to empower the disadvantaged individual(s) via litigation than the individual himself. For example, in the context of equality, Dawson and Muir have argued that the available individual enforcement mechanisms might be insufficient for protecting vulnerable minorities.67 To ensure their adequate protection, the EU enforcement system should be complemented by an intermediate ‘collective’ level that would entitle NGOs and/or other organisations representing collective interests to pursue collective enforcement of EU fundamental rights.68 This line of reasoning could be applied to other fundamental (social) rights. Second, certain social and labour rights are collective or have a significant collective dimension. This is so, for example, with regard to the workers’ information and consultation rights and the right to collective action. This would then justify the broadening of collective access. In addition, breaches of certain individual rights can take place on a scale significantly beyond individual situations. For example, discrimination often takes place on large scale. Rather than surfacing at the individual level, such discrimination can often be ‘a reflection of long-standing, structural and institutional concerns reflecting deficiencies in political, social and economic processes’.69 In such situations a group justice model through class, collective or representative action is more appropriate than individual action.70 The need for broader collective access to courts is also linked to resources that individuals might lack. Legal aid and representation through membership organisations then becomes crucial.71 In addition, in such cases the gathering of evidence requires ‘inside information’ which only a trade union may possess or a lengthy and burdensome process of retrieving the necessary documentation. This would be very difficult for an individual but achievable for the trade union.72 Third, one can look at the fundamental rights from what Dawson calls a ‘procedural perspective’ that ‘sees human rights law and policy as geared towards entering individuals into the political process on a fairer and more 67 M Dawson and E Muir, ‘Individual, Institutional and Collective Vigilance in Protecting ­Fundamental Rights in the EU: Lessons from the Roma’ (2011) 48 CMLR 751, 754. 68 ibid 754. 69 Farkas (n 1) 182. 70 ibid 183. 71 Fuchs (n 2) 192. 72 Fitzpatrick (n 29) 212.

178  Zane Rasnača ­equitable basis’.73 From this perspective the success of EU fundamental rights policy is not defined by its ability to defend particular fundamental values alone, but also by its capacity to ensure that a full range of viewpoints are able to define and advance the EU’s basic values.74 Public interest litigation based on collective access to EU courts would be particularly suitable for inducing the existing process with more deliberative capacity, necessary for legitimising and even ‘democratising’ the EU’s processes from a procedural perspective. The European social partners, who already play a special role in developing the EU law through their mandatory consultation and the European social dialogue, seem especially well placed to defend not only their own, but panEuropean social interests more generally. They bring different expertise from the parties to the case, knowledge of the national and industrial relations systems of all the Member States.75 One way to facilitate better enforcement of social rights across the EU would therefore be to broaden the locus standi for collective interest organisations, such as the European social partners, both at national and EU level. However, this is not the only possible solution. Harlow has argued that the most economical way of increasing interest representation without overloading the CJEU is not to change the locus standi rules but through intervention rights.76 This would respond to the current reality in which the CJEU is increasingly dealing with core interests of trade unions; however, such cases often arrive before the Court without a trade union being a party77 or with only one national trade union being a party, representing solely national rather than a pan-European interest. In such situations broader intervention rights for pan-European interest organisations would make it possible to provide more balanced expertise in court. Moreover, because collective direct access to EU courts is not currently available, such a development would in part remedy this flaw in the EU judicial system. In sum, in the area of fundamental social and labour rights the EU’s reliance on individual enforcement constitutes a serious weakness.78 This is especially the case in situations involving (fundamental) social rights. Some of the points discussed above reveal the need to broaden collective access to ‘EU courts’, both direct and indirect. There are various ways in which collective access to courts could be strengthened. The first route is EU secondary law, as partly already achieved by the anti-discrimination directives. The second route would be to expand direct access to the CJEU either by relaxing the criteria of locus standi or by introducing special access rights for certain actors (eg European social 73 M Dawson, ‘Regenerating Europe through Human Rights? Proceduralism in European Human Rights Law’ (2013) 14 German Law Journal 651, 670. 74 ibid. 75 Bercusson (n 8) 515. 76 C Harlow, ‘Towards a Theory of Access for the European Court of Justice’ (1992) 12(1) ­Yearbook of European Law 213, 248; See also Bercusson (n 8) 512. 77 Bercusson (n 8) 502. 78 Compare the argument made by Dawson and Muir (n 67).

Procedure  179 partners). Finally, intervention rights for certain actors representing collective pan-European interests could be expanded. IV. THE CJEU’S (LIMITED) USE OF THE CHARTER

At the end of the day, one’s perception of the odds of a favourable ruling are often the key element in making the (strategic) decision on whether or not to litigate. The most accessible courts will be rarely used if the odds are not in the litigant’s favour. While some strategic cases are brought simply to trigger a broader discussion, and cases based on the Charter could be also brought with the sole aim of facilitating the use of this legal instrument, the prospect of success will still always matter, not only for individuals but also for collective actors. Therefore, material aspects are as important a part of the legal opportunity structure as access to the courts. To date, the social rights in the Charter have been used by the CJEU and the General Court in numerous ways. One can clearly distinguish at least three main modes of application: (i) the Charter as an element in determining locus standi; (ii) the Charter as an aid for interpreting EU and national law; (iii) the Charter as an (independent) source of EU law. Up to now, for the most part, judgments reveal the Charter’s insignificance rather than its strength, and only in areas in which the Charter complements a meaningful body of secondary law does one find encouraging outcomes.79 The case law shows that the social provisions in the Charter are used by the CJEU fairly reluctantly, both when it comes to their scope and their content. Such an approach unduly restricts the enforcement of fundamental social rights. More strategic use of the Charter should therefore be encouraged in order to gradually attempt to expand the applicability of social rights in the EU system. A.  The Charter and Locus Standi Rules In numerous cases applicants, by relying on the Charter, have attempted to challenge the strict EU-level admissibility rules for direct actions. Unfortunately, these attempts have all been unsuccessful. In Inuit the Court rejected any widening of locus standi under Article 263 TFEU based on Article 47 CFREU.80 Rejecting the arguments raised by the

79 In large part, this is so due to the settled case law on Art 51(1) CFREU discussed elsewhere (ch 6 by Aristea Koukiadaki). 80 Inuit (n 33).

180  Zane Rasnača applicants, the CJEU confirmed the General Court’s position expressed at the first instance that the Charter did not intend to change the judicial review system established by the Treaties, and while Article 263 TFEU must therefore be interpreted in light of Article 47 CFREU, such an interpretation cannot set aside conditions expressly laid down in the Treaty (such as direct and individual concern as interpreted by the CJEU in its standing case law).81 Therefore, any added value by the Charter concerning locus standi under Article 263 TFEU was rejected. This restrictive approach was continued in Beul v Parliament and Council,82 in which the applicant tried to rely on Article 15 CFREU (freedom to choose one’s occupation). The applicant challenged the EU Regulation that had inter alia introduced a rule according to which members of the accountancy profession are not allowed to perform any function in the auditing supervision of public-interest undertakings.83 By relying on Article 15 CFREU he argued that he is individually concerned by the Regulation because his right to carry out his professional activity under the supervision of an administratively autonomous body has been reduced to nothing.84 The General Court rejected the applicant’s claim by relying on its past case law without even analysing the content of ­Article 15 CFREU and changes brought along by the Charter.85 In contrast to attempts to relax EU-level locus standi rules by relying on the Charter, such attempts have been more successful concerning locus standi rules at the national level. For example, in Schrems – a case concerning protection of personal data – the CJEU ruled that Article 47 CFREU requires national law to provide options for realising the rights arising on the basis of EU secondary law and to ensure that anyone whose rights are violated has an effective remedy available before the national courts.86 In addition, concerning the right of trade unions to bring a case on behalf of workers, in Finnish electricians’ union87 the CJEU ruled that, where the assignment of claims by workers to the trade union is prohibited in the home Member State, it cannot prevent the trade union from bringing the action (on behalf of the same workers who have assigned their claims to it) in the host Member State in accordance with the host country’s rules; prevention would constitute a breach of the Posted Workers Directive88 read in light of Article 47 CFREU. 81 ibid, paras 97 and 98. 82 GC, 23 November 2015, T-640/14, Beul v Parliament and Council. 83 Art 21 of Regulation (EU) No 537/2014; ibid para 27. 84 He referred by analogy to CJEU, 18 May 1994, C-309/89, Cordoniu v Council, paras 21 and 22. It suffices that the contested act undermines an established status enjoyed by the party seeking the annulment of that act. 85 Beul v Parliament and Council (n 82) paras 42, 45. 86 CJEU, 06 October 2015, C-362/14, Schrems, para 95. 87 CJEU, 12 February 2015, C-396/13, Sähköalojen ammattiliitto. 88 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services

Procedure  181 In several cases, therefore, the Charter has been used by the CJEU to interpret locus standi rules at both the EU and the national level. While attempts to widen direct access to EU-level courts with the help of the Charter have been unsuccessful, similar attempts at widening the rules at the national level have been more successful. Accordingly, where national law prevents or unduly restricts the possibility to bring actions based on EU law before national courts, opportunities to challenge this based on the Charter can be explored. B.  Charter as an Aid for Interpreting EU and National Law For the most part, however, the Charter has been used by the Court as an aid for interpreting EU law. Since the coming into force of the CFREU, it has been used by the Court to (i) define the scope of EU secondary law; (ii) strengthen the enforcement of general principles of EU law; and (iii) define the application of (social) rights included in the Charter. i.  Defining the Scope of EU Secondary Law The CJEU has used the Charter to define – and potentially even broaden – the scope of application of EU secondary law. In Commission v Ireland, the CJEU based its reasoning that a certain housing benefit falls within the scope of Directive 2003/109/EC89 on the consideration that, because, according to Article 34 CFREU, the Union recognises and respects the right to social and housing assistance, insofar as the benefit in question in the main proceedings fulfils the purpose set out in Article 34 CFREU, it has to be considered, under EU law, to constitute part of the core benefits within the meaning of Article 11(4) of Directive 2003/109/EC.90 Here the Court relied on the Charter to justify an inclusive interpretation of a directive. In Fuß, a case involving the Working Time Directive 2003/88/EC, the CJEU relied on Article 47 CFREU to limit the employer’s possibility to simply transfer the employee, who had requested compliance with maximum weekly working time, to another position.91 According to the Court, fear of such a reprisal would deter victims of abuses of weekly working time to challenge the employer and in this way the implementation of the Directive would be jeopardised.92 In some cases, therefore, the Charter can play a promising role in fostering a worker-friendly line of interpretation of EU secondary law. However, this is rarely the case. In the majority of cases the Charter has simply been mentioned

89 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. 90 CJEU, 02 May 2011, C-570/10, Commission v Ireland, para 92. 91 CJEU, 14 October 2010, C-243/09, Fuß, paras 62, 66. 92 ibid para 66.

182  Zane Rasnača as a source strengthening the importance of certain rights granted by measures of EU secondary law and nothing more. In H93 the CJEU referred to the fact that the right to parental leave has been included in Article 33(2) CFREU.94 However, the scope and content of this right were analysed only in the context of the secondary measure, the Parental Leave Directive 2010/18/EU. An analogous approach by the CJEU can be found in other cases.95 In such cases, the Charter has been interpreted as adding nothing new to EU law and as simply re-­establishing the importance of some rights already present in EU s­ econdary law. ii.  Strengthening the Enforcement of General Principles of EU Law Especially interesting is the relationship between the Charter and EU secondary law when general principles of EU law are involved.96 The recognition of a general principle, in contrast to fundamental rights, in some cases, seems to be the key factor enabling the Court to request that the national court set aside discriminatory provisions of national law, thus, in fact, recognising horizontal direct effect.97 The same approach, and again concerning the general principle of equality, was taken by the Court in judgments in Kücükdeveci98 and HK Danmark.99 In all these cases the CJEU also referred to the Charter to strengthen its reasoning. However, the existence of a well-established (at least in the Court’s opinion) general principle rather than rights in the Charter was the key element and the exception to the prohibition of horizontal direct effect so far has been reserved solely for cases in which the general principle of equality has been at stake. The Court’s approach in analogous situations, but involving workers’ rights to information and consultation, has been much more restrictive. In AMS the CJEU rejected the possibility of the applicant relying on Article 27 CFREU ‘on its own’. The CJEU rejected horizontal direct effect of Article 27 CFREU and also stated that, in contrast to the situation with the Equality Framework Directive 2000/78/EC and Article 21 CFREU, invoking that Article, together with the Information and Consultation of Employees Directive,100 would not help.101

93 CJEU, 07 September 2017, C-174/16, H. 94 ibid para 32. 95 See also, eg CJEU, 19 July 2017, C-143/16, Abercrombie & Fitch Italia; CJEU, 02 June 2016, C-122/15, C; CJEU, 01 October 2015, C-432/14, O; and CJEU, 21 December 2016, C-539/15, Bowman. 96 See also ch 7 by Klaus Lörcher. 97 CJEU, 09 March 2017, C-406/15, Milkova, paras 55–57, 64–67. See also CJEU, 22 November 2005, C-144/04, Mangold. 98 CJEU, 19 January 2010, C-555/07, Kücükdeveci. 99 CJEU, 26 September 2013, C-476/11, HK Danmark. 100 Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community. 101 CJEU, 15 January 2014, C-176/12, Association de médiation sociale, para 49.

Procedure  183 A similar route was taken by the General Court in IPSO v ECB.102 Accordingly, the Charter rights alone, without the general principles (a source of EU law developed exclusively by the CJEU), do not suffice for extending the possibilities to rely directly on EU law before national courts. iii.  Defining the Application of (Social) Rights Finally, the Charter has also been used by the Court to balance Charter rights and principles with (against) each other. In AGET Iraklis the applicant sought to rely on Article 16 CFREU (freedom to conduct a business).103 The CJEU argued that, where the national law restricts a fundamental freedom and the Member State seeks to rely on the overriding reasons of public interest to justify such restriction, national legislation can fall within the exception only if it complies with fundamental rights.104 The Court, even though it found that there might be a restriction of the freedom to conduct business, as argued by the applicant, then considered that such a restriction is in line not only with Article 52(1) but also with other fundamental rights embedded in the Charter, namely Article 30 (the right to protection against unjustified dismissal).105 Therefore, the CJEU (sort of) balanced the Charter rights against each other as part of the ‘justification step’ in analysing a restriction of the freedom of establishment. This, approach could be considered more ‘worker friendly’ than the approach taken by the CJEU eg in the (in)famous judgments Viking and Laval,106 in which the fundamental rights were seen as encroaching upon the fundamental freedoms. Such instances, where the social provisions in the Charter are actively used by the CJEU in the interpretation of secondary law, however, are still rare. Most of the time, and even when the preliminary reference questions referred by the national courts explicitly request interpretation of the Charter, the Court in its reasoning tends to rely exclusively on the interpretation of secondary law and only formally mentions the Charter provisions in its answer to the national court. For example, in Sánchez Morcillo and Abril Garcia107 the national court in its preliminary question had referred to Directive 93/13/EEC108 and Articles 47, 34(3) and 7 CFREU.109 However, the CJEU, while it did mention Article 47 CFREU as supportive of its reasoning, did not provide any analysis of the limits

102 GC, 13 December 2016, T-713/14, IPSO v ECB, para 89. 103 CJEU, 21 December 2016, C-201/15, AGET Iraklis, para 63; see also CJEU, 30 April 2014, C-390/12, Pfleger and Others, para 35. 104 ibid. 105 AGET Iraklis (n 103) paras 85–89. 106 M Beijer, The Limits of Fundamental Rights Protection by the EU. The Scope for the Development of Positive Obligations (Cambridge, Intersentia, 2017) 167. 107 CJEU, 16 July 2015, C-539/14, Sánchez Morcillo and Abril García. 108 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. 109 ibid para 23.

184  Zane Rasnača this provision sets for the rights afforded by the Directive.110 The rest of the provisions were mentioned only in the operative part of the order.111 The Court took a similar approach in Heimann112 where, although the national court asked for interpretation of both the Working Time Directive 2003/88/EC and Article 31(2) CFREU, the Court did not analyse what exact rights follow from Article 31(2) CFREU, but rather relied solely on the interpretation of Article 7(1) Working Time Directive, although, once again, it did mention the Charter provision in the operative part of its judgment.113 The same approach can be found in Fenoll.114 In sum, in only a few cases has the CJEU seemed to use the Charter as a meaningful aid in interpreting EU secondary law. In such cases this seems to facilitate interpretation favourable to (at least some) social rights. At the same time, the Court’s approach is still overly cautious in the majority of cases in which the Charter has been relied upon by the parties or the national court, and the judgments refer to the Charter as a mere formality. Therefore, and despite the Charter being in force for more than 10 years, it still remains to be seen whether strategic use of the Charter will yield better results in the future. C.  Charter as an (Independent) Source of EU Law In cases in which no (‘implementing’) secondary law is involved, and the parties seek to rely on the Charter ‘on its own’, the case law reveals, first, the Court’s reluctance to give a meaningful role to collective social rights included in the Charter; and second, when checking the validity of EU secondary law against social rights included in the Charter, the Court leaves broad discretion to the EU legislator. The only situations in which the CJEU has applied the Charter in a significant way have been ones that do not involve social rights.115 Overall the CJEU seems more comfortable in its interpretation of individual rights, and especially individual rights that have been fleshed out in EU secondary law (eg equality and non-discrimination rights). The Court has taken a much more restrictive and even rejective tone concerning collective rights. For example, in Hennings116 the rules on pay for public sector contractual employees had been laid out in a collective agreement.117 In this case the national court had inquired not only about the possibility that the rules were ­discriminatory based on age (under EU law) but also whether the right

110 ibid

paras 31, 36. para 51. 112 CJEU, 08 November 2012, C-229/11 and C-230/11, Heimann and Toltschin. 113 ibid paras 21, 22 and 38. 114 CJEU, 26 March 2015, C-316/13, Fenoll, paras 17 and 43. 115 See also ch 21 by Bruno Veneziani. 116 CJEU, 08 September 2011, C-297/10 and C-298/10, Hennings and Mai. 117 ibid para 34. 111 ibid

Procedure  185 to ­negotiate collective agreements (Article 28 CFREU) should be taken into account.118 The CJEU, however, reiterated its approach in Viking and Laval and argued that the right to collective bargaining has to be exercised (strictly) in line with EU law and rejected any possibility to balance Article 21 CFREU and the Equal Framework Directive 2000/78/EC against Article 28 CFREU. In practice, it meant that the right to collective bargaining had to be exercised in line with the Equal Framework Directive (and not vice versa, which would have been more appropriate).119 Similarly, in Prigge the Equal Framework Directive (age discrimination) was considered by the Court to set limits to the right to collective bargaining and these limits were considered to be automatically compatible with Article 28 CFREU without any further analysis.120 The CJEU did not engage in any (meaningful) analysis of the right to collective bargaining and the freedom and autonomy enjoyed by the social partners. From the perspective of EU constitutional law, the traditional role played by the Charter is in assessing the validity of EU secondary law. The social rights, however, have rarely been relied upon in such cases. One exception was Fries,121 in which the CJEU scrutinised a situation where a pilot had been dismissed because he had reached the age after which it is prohibited to fly commercial aircrafts, as laid down in the Annex of Regulation No 1178/2011.122 The CJEU assessed the compatibility of this prohibition with Article 21 CFREU123 and suggested that the EU legislature has very broad discretion concerning complex medical questions.124 The CJEU found that the substance of the right to work (Article 15(1) CFREU) had not been affected and the EU legislature had adequately evaluated the situation.125 This approach, characterised by broad discretion for the EU legislator and low scrutiny from the CJEU when applying social rights, was continued in ONEm where the Court did not afford Article 15(2) CFREU any significance that would be ‘independent’ from other pieces of EU law. In response to the question of whether Article 67(3) of Regulation No 1408/71 complies with ­Article 15(2) CFREU (freedom to choose occupation), the CJEU argued that the ‘rights recognised by the Charter for which provision is made in the treaties are to be exercised under the conditions and within the limits defined in the ­treaties’.126 According to the Court, it follows that, because the challenged



118 ibid

para 52. paras 67 and 68. 120 CJEU, 13 September 2011, C-447/09, Prigge and Others, paras 46–48. 121 CJEU, 06 July 2017, C-190/16, Fries. 122 ibid para 27. 123 ibid para 28. 124 ibid para 59. 125 ibid paras 70–80. 126 CJEU, 07 April 2016, C-284/15, ONEm and M, para 33. 119 ibid

186  Zane Rasnača provision of the contested Regulation complies with Articles 45 and 48 TFEU, it is ‘automatically’ compatible also with Article 15(2) CFREU.127 In Glatzel128 the CJEU again left broad discretion for the EU legislator by ruling that, although Article 26 CFREU requires the EU to respect and recognise the right of persons with disabilities to benefit from integration measures, the principle enshrined in that article does not require the EU legislature to adopt any specific measure. According to the CJEU, Article 26 CFREU cannot, in itself, confer on individuals any subjective right that they could invoke in the absence of implementing measures.129 From one side, therefore, the EU legislator has no obligation to adopt any implementing measures for enforcing Article 26 CFREU, and from the other, without any implementing measures the Article has no real meaning for individuals. One situation in which the rights in the Charter have played some role has been where the parties have relied on rights also found in the ECHR, with significant ECtHR case law. In such cases the CJEU has interpreted the provisions of the Charter very much in light of the case law of the ECtHR. An approach very much in line with the case law of the ECtHR was taken, for example, concerning the right to property (Article 17 CFREU) in Florescu and others.130 Also in Toma, a case that, however, was outside the social field, the CJEU relied on both the Charter and the ECHR (and the corresponding case law) in its examination of whether the national legislation infringed Article 47 CFREU.131 Although the Court found no breach, the judgment is a rare example in which the CJEU extensively interpreted the Charter (Article 47) and also engaged extensively with the ECHR to support its reasoning. Unfortunately, such cases have so far not involved social rights and international human rights instruments, other than the ECHR, with a significant role in protecting social rights at international level (eg the ESC and ILO Conventions), have largely been ignored. Recently, however, the CJEU in Egenberger,132 based on EU law, provided more protection in combatting discrimination based on religious grounds than the ECtHR has so far ensured,133 by ruling that effective judicial review must be available where an application for employment is rejected by arguing that ‘religion constitutes a genuine, legitimate and justified occupational requirement’ for the particular position.134 However, notably, the CJEU did so by relying on both the Charter (Articles 21 and 47) and the Equal Treatment Framework Directive (2000/78/EC). Whether an equally progressive interpretation would

127 ibid para 34. 128 CJEU, 22 May 2014, C-356/12, Glatzel, para 52. 129 ibid para 78, see, to that effect concerning Art 27 CFREU; Association de mediation sociale (n 101), paras 45 and 47. 130 CJEU, 13 June 2017, C-258/14, Florescu and others, paras 49–50 and the following paras. 131 CJEU, 30 June 2016, C-205/15, Toma, para 46. 132 CJEU, 17 April 2018, C-414/16, Egenberger. 133 Compare with ECtHR, 14 September 2017, Application No 56665/09, Károly Nagy v Hungary. 134 Egenberger (n 132) para 59.

Procedure  187 have been adopted based solely on the Charter if no secondary law existed, might be doubtful. In sum, social rights have been applied by the CJEU in various ways. First, the Court has rejected attempts to broaden the EU-level locus standi rules. Attempts to broaden court access at the national level have met with a bit more success. Second, most frequently, the Charter has been applied or referred to alongside EU secondary law. In some such cases the Court has given the social rights in the Charter significant added value complementary to rights found in the secondary measure; however, in the majority of cases the Charter has been merely formally mentioned and the social rights, even upon explicit request by national courts, have not been analysed by the Court at all. Finally, when assessing the validity of EU secondary law against the Charter, the Court has left very broad discretion to the EU legislator. Overall, the Court’s past case law suggests that social rights play a weak and insufficient role in its judicial reasoning, and the chances of success for litigants seeking to rely on them are still weak. This does not mean that the Charter should not be invoked by applicants; rather, it means that it has to be done in a strategic way in order to facilitate more ‘social rights-friendly’ case law in the future. V. CONCLUSIONS

To date, the social rights’ potential of the Charter has to a considerable extent remained untapped, at least partly because of weak legal opportunity structures within the EU system. This weakness, however, is not created solely by the EU institutional framework, but to a large extent also by the CJEU’s reluctance to expand access to EU courts and its rejection of (any) attempts to engage it in adequately serious application of social rights included in the Charter. The procedures currently available do not make it possible to seek a remedy for social rights breaches quickly and efficiently. Access to EU-level courts is very restricted, and in cases relying on the CFREU, even more so. It would be practically impossible for a natural or legal person to bring a case challenging the legality of a legislative act based on the Charter due to the stringent criteria for establishing locus standi. Indirect access depends almost entirely on national procedural law. Moreover, in enforcing social rights, what often matters is collective rather than individual access, but currently there is no opportunity for direct collective access to EU courts. Finally, the last but by no means the least barrier discouraging litigation is the Court’s past case law, which reveals only reluctant and sporadic use of the social rights found in the Charter. The CJEU has refused to expand access to it by relying on the Charter and for the most part the Charter has served as an instrument aiding application of EU secondary law without gaining much

188  Zane Rasnača independent significance. Although until now the Court’s case law suggests a minimal role for social rights in the EU system, it remains difficult to predict beforehand whether the CJEU will exercise a stronger or weaker form of judicial review and whether the Court will afford social rights a greater or a smaller role in particular cases. Therefore, while the social rights in the Charter theoretically have great potential, the weak and insufficient EU legal opportunity structure currently prevents meaningful judicial enforcement and discourages legal mobilisation. To remedy this one could of course envision Treaty and legislative change. However, as this chapter has shown, many of the obstacles actually stem not so much from the institutional framework as from the case law of the CJEU. Therefore, it would be an enormous step towards more adequate judicial enforcement of social rights across the EU if the EU courts took the Charter, and in particular social rights, more seriously in its substantive and, above all, procedural dimension.

Part II

Specific Articles Title I – Dignity

190

9 Article 1 – Human Dignity BARBARA KRESAL

Article 1 Human dignity Human dignity is inviolable. It must be respected and protected.

EXPLANATIONS The dignity of the human person is not only a fundamental right in itself but ­constitutes the real basis of fundamental rights. The 1948 Universal Declaration of Human Rights enshrined human dignity in its preamble: ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’ In its judgment of 9 ­October 2001 in Case C-377/98 Netherlands v European Parliament and Council [2001] ECR I-7079, at grounds 70–77, the Court of Justice confirmed that a ­fundamental right to human dignity is part of Union law. It results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted.

I. INTRODUCTION

A.  Context and Main Content Article 1 is extremely general in its wording, and fundamental and overarching in its meaning; the right to human dignity forms the basis for and the essential part of the substance of all other human rights, including those relevant in the field of labour relations.1 The CFREU Explanations to Article 1 refer to the

1 The concept of human dignity plays a central role in human rights discourse and is seen as providing the basis for human rights in general; C McCrudden, ‘Human Dignity and Judicial

192  Barbara Kresal Universal Declaration of Human Rights (UDHR), which builds on the indivisible nature of all human rights, including fundamental social rights, and in its preamble points explicitly to the inherent dignity of all human beings; that is, ‘all members of the human family’. Human dignity should be understood as the basis, the very source and the final goal of each and every human right. It is explicitly mentioned in the ­Preamble to the Charter, at the very beginning, where it is stated that ‘the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity’. The first chapter of the Charter is titled ‘Dignity’ and includes, in addition to the general provision on human dignity in Article 1, also the right to life, the right to integrity of the person, the prohibition of torture and inhuman or degrading treatment or punishment and the ­prohibition of slavery and forced labour. But the scope of human dignity goes beyond these provisions. Human dignity has been declared one of the core values on which the European Union is founded (see Article 2 TEU). And, according to Article 3 TEU, the EU’s aim is to promote peace, its values (ie respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights) and the well-being of its peoples. Human dignity is mentioned in many national constitutions, for example in Germany’s Basic Law and the Belgian Constitution, and such constitutional provisions and their interpretation should also be taken into account when analysing Article 1 and its meaning. They can be a source of inspiration for further development of the concept of human dignity in the Charter.2 It is a complex task to define human dignity. According to Collins, a theory of human rights has to identify a list of rights that has a sufficiently concrete and distinctive application of deeper values, such as liberty and dignity.3 McCrudden identifies three elements as the minimum core or the ‘basic minimum content’ of human dignity: that every human being possesses intrinsic worth, merely by being human, that this intrinsic worth should be recognised and respected by others, and that recognising the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa.4 Young explains that the value of dignity

I­nterpretation of Human Rights’ (2008) 19(4) The European Journal of International Law 656, 680. The concept of dignity constitutes one of the fundamental ideas of the human rights regime (MA Tóth, ‘The Right to Dignity at Work: Reflections on Article 26 of the Revised European Social Charter’ (2008) 29(3) Comparative Labor Law & Policy Journal 275). 2 Constitutional traditions have an important role also in the case law of the CJEU. See more in Koen Lenaerts, ‘The Role of National Constitutions in EU law – From Shared Values to Mutual Trust and Constructive Dialogue’ (2018) 73(1–2) Pravnik 5–16. 3 H Collins, ‘Is There a Right to Work?’ in Virginia Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015) 27. 4 McCrudden (n 1) 679. On human dignity in general see also C McCrudden (ed), Understanding Human Dignity (Oxford, Oxford University Press, 2014); A Barak, Human Dignity – The Constitutional Value and the Constitutional Right (Cambridge, Cambridge University Press, 2015).

Article 1  193 evokes the individual’s claim to be treated with respect and to have one’s intrinsic worth recognised; she further analyses how human dignity substantiates economic and social rights.5 Davidov points to the strong connection between dignity and the idea that ‘labour is not a commodity’ and to the need to minimise the commodification of labour.6 When defining the concept of ‘Social Europe’, Mikkola identifies respect for human dignity as one of the essential elements and conditions thereof.7 In the context of labour relations, it is useful to analyse the concept of human dignity and the corresponding Article 1 from two different perspectives. On one hand, human dignity must also be respected and protected in the field of labour relations; labour relations must be organised in a way that respects the workers’ dignity at work. By entering into an employment relation, ­workers cannot waive their right to human dignity. Workers are human beings and therefore entitled to human rights and human dignity within existing labour relations. Labour laws must guarantee certain (minimum) rights to the workers in order to safeguard their fundamental right to human dignity in employment. On the other hand, human dignity can be observed also from another ­perspective in the context of labour relations, in other words, labour rights. ­Workers’ rights have the potential to bring human dignity (declared in a very abstract and general manner in human rights instruments, including the Charter) into people’s everyday lives. Labour rights have the potential to empower people with human dignity. The role of labour rights is the actual realisation/concretisation of the abstract concept of human dignity in practice for the majority of people who earn their living by working for someone else. But this requires that labour rights are adequately regulated and implemented, at a sufficiently high level and in such a way that everyone who is in need of such protection enjoys labour rights and is covered by labour law, including non-standard workers etc. From a human rights perspective, labour rights are essential for realising people’s human dignity in practice, in their everyday life, and a necessary precondition for full realisation of other human rights as well.8 According to Sinzheimer, protecting human dignity is one of the main goals of labour law.9 The CESCR’s General Comment No 18 on the right to work

5 KG Young, Constituting Economic and Social Rights (Oxford, Oxford University Press, 2012) 42–50. 6 G Davidov, A Purposive Approach to Labour Law (Oxford, Oxford University Press, 2016) 61. 7 M Mikkola, Social Human Rights of Europe (Porvoo, Karelactio, 2010) 34. 8 B Kresal, ‘Mutating or Dissolving Labour Law? The Fundamental Right to Dignity of Working People Questioned (Once Again)’ in M Rigaux, J Buelens and A Latinne (eds), From Labour Law to Social Competition Law? (Cambridge-Antwerp-Portland, Intersentia, 2014) 150–51. 9 M Weiss, ‘Re-Inventing Labour Law?’ in G Davidov and B Langille (eds), The Idea of Labour Law (Oxford, Oxford University Press, 2011) 44. It is important that labour law protects all persons who need that kind of protection (D Senčur Peček, ‘Pojem delavca s primerjalnega in EU vidika [The concept of a Worker from the Comparative and the EU Perspective]’ (2016)(2–3) 16 Delavci in delodajalci 190).

194  Barbara Kresal confirms and reinforces this approach by stating explicitly that ‘the right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity’ and that work ‘must be decent work’.10 To conclude, the right to human dignity can be considered to be the source of certain labour rights in order to guarantee dignity at work, and vice versa, labour rights can be considered the source of human dignity, an essential part of it. Catherine Dupré describes human dignity as the EU’s most important ­fundamental right and its first foundational value, the real ‘golden rule’ of the EU. She is also critical, explaining that recently, during the management of the financial and economic crisis, ‘little regard has so far been paid to human dignity, and individuals’ central place at the heart of the EU’s activities has arguably been exclusively occupied by considerations of financial and budgetary rigour’.11 B.  Relationship to Other Provisions of the Charter Because human dignity has been recognised as a ‘fundamental value’, a foundation and a basis for all other human rights, Article 1 is related to all other substantive provisions of the Charter. As already mentioned, the first chapter of the Charter is dedicated to ‘Dignity’. Especially the connection with Article 5 on the prohibition of slavery and forced labour is relevant in the field of labour law, but also – in very extreme cases of labour exploitation and inhuman working conditions – the connection with Article 4 on the prohibition of torture and inhuman or degrading ­treatment or punishment cannot be overlooked.12

10 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No 18: The Right to Work (Art 6 of the Covenant), 6 February 2006, E/C.12/GC/18 (http://www.refworld. org/docid/4415453b4.html). 11 C Dupré, ‘Article 1’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014), 24. There is an extensive literature on the impact of crisis on fundamental social rights and people’s well-being, for example N Countouris and M Freedland (eds), Resocialising Europe in a Time of Crisis (Cambridge, Cambridge University Press, 2013); K Kresal Šoltes, ‘Kršitve temeljnih socialnih pravic v imenu kriznih varčevalnih ukrepov [Violations of Fundamental Social Rights in the Name of Austerity Measures]’ (2013) 13(1) Delavci in delodajalci 11–27; S Laulom and C Teissier, ‘Which Securities for Workers in Times of Crisis: An Introduction’ (2014) 5(3–4) European Labour Law Journal 206–10 and others. Laulom and Teissier point to the fundamental social rights as the basic protection that every worker should be given in order to face social risks capable of undermining their dignity. 12 See, for example, the FRA reports: FRA – European Union Agency for Fundamental Rights, Severe labour exploitation: Workers moving within or into the European Union – States’ obligations and victims’ rights (Vienna, 2015) and FRA, Migrants in an irregular situation employed in domestic work: Fundamental rights challenges for the European Union and its Member States (Vienna, 2011).

Article 1  195 In the field of labour relations, special attention should be paid to the interdependence between Article 1 and Article 31 (Fair and just working conditions) in which the right of every worker ‘to working conditions which respect his or her health, safety and dignity’ is enshrined (paragraph 1).13 Bogg emphasises that the specific reference to ‘dignity’ in Article 31 points to an important explicit connection with Article 1 and therefore Article 31 should be regarded as a provision with very significant normative weight and importance, as the most fundamental of the labour rights in the Charter.14 All other labour (and social) rights in the Chapter ‘Solidarity’ have a strong connection with Article 1 as well. As the equality principle is inevitably linked with dignity,15 the whole chapter ‘Equality’ (Title II) also reflects the spirit of Article 1 on human dignity. The essence of human dignity is equality and on the pillar of equality a whole set of human rights is built, which cover different aspects of human existence and activities, some more concrete and others more general, but all aimed at empowering the person concerned with human dignity; there is no human dignity if people are not treated equally.16 Advocate General Poiares Maduro noted in his Opinion in Coleman that equality is one of the fundamental principles of EU law and that the values underlying equality are those of human dignity and personal autonomy. According to Maduro, at the very minimum, ‘human dignity entails the recognition of the equal worth of every individual’ because ‘one’s life is valuable by virtue of the mere fact that one is human, and no life is more or less valuable than another’.17 Last but not least, the rights in the chapter ‘Freedoms’ should be mentioned, some of which are particularly relevant also in the field of labour relations; for example, Article 15 (Freedom to choose an occupation and right to engage in work), Article 7 (Respect for private and family life) and Article 8 (Protection of personal data). Special attention should be paid to the Charter’s provisions that form the basis for collective labour rights, which are an important component of human dignity at the workplace (Article 12 on freedom of assembly and of association from the ‘Freedoms’ chapter and Article 27 on the workers’ right to information and consultation within the undertaking and Article 28 on the right of collective bargaining and action from the ‘Solidarity’ Chapter).

13 See also K Lörcher’s commentary on Article 31 in ch 24 of this book. 14 A Bogg, ‘Article 31’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 837. 15 For example, Art 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights.’ 16 Kresal (n 8) 150. 17 CJEU AG, Opinion of Advocate General Poiares Maduro, 31 January 2008, C-303/06, Coleman, paras 8 and 9.

196  Barbara Kresal C.  Relationship to Other Relevant Instruments i.  EU Instruments As already mentioned, according to Article 2 TEU, the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, and the aim of the EU is to promote these values, peace and the well-being of its peoples (Article 3 TEU).18 Human beings with their inherent dignity should be at the centre of concern of all normative activities, policies and actions of the EU.19 From this point of view, all EU directives in the field of labour law are relevant. When drafting, as well as implementing and interpreting EU labour legislation, the fundamental right to human dignity can serve as a guiding tool and has to be taken into account. All workers’ rights have to be interpreted in such a way that they best fit into the paramount concept of human dignity. Because human dignity is inviolable, it must be respected and protected also within labour relations. The anti-discrimination directives (Directives 2006/54, 2000/78 and 2000/43) that prohibit harassment at work, which is a particularly sensitive issue and a specific topic within the ambit of the right to dignity at work,20 are of special importance, as are the directives on health and safety at work, among others. Within the European social dialogue structure, the European social partners concluded a Framework agreement on harassment and violence at work in 2007.21 In 1989, the Community Charter of Fundamental Social Rights for Workers was adopted, and in 2017 the European Pillar of Social Rights.

18 See more on the values, among them human dignity, and the potential of the CFREU in this respect in F Dorssemont, ‘Values and Objectives’ in N Bruun, K Lörcher and I Schőmann (eds), The Lisbon Treaty and Social Europe (Oxford and Portland, Hart Publishing, 2012) 45–59. 19 Respect for human dignity is, for example, explicitly mentioned also in Art 21 TEU (general provisions on Union’s external action): ‘The Union’s action on the international scene shall be guided by the principles which have inspired its own creation …: … the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, …’. This aspect should be particularly important also in relation to the negotiation and conclusion, as well as the interpretation of trade and investment agreements, such as CETA, TTIP and similar. Relevant labour rights’ aspects of the fundamental right to human dignity should be duly reflected in such agreements. 20 The definition of harassment in Directive 2006/54 (similar definitions can be found in other anti-discrimination directives as well) explicitly refers to dignity, ie ‘where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment’ (Art 2(1c,d) Directive 2006/54). 21 Framework agreement on harassment and violence at work concluded by ETUC/CES, BUSINESSEUROPE, UEAPME and CEEP on 26 April 2007 (https://drive.google.com/file/d/ 0B9RTV08-rjErYURTckhMZzFETEk/view).

Article 1  197 ii.  Council of Europe Instruments Many Council of Europe treaties are relevant to Article 1. In the context of labour relations, the most important are the ESC and the ECHR. It is worth mentioning that the Revised European Social Charter 1996 was the first international human rights instrument that explicitly included the right to dignity at work (Article 26). Csilla Kollonay-Lehoczky explains that paragraph 1 of Article 26 ESC is a ‘classic’ non-discrimination article, prohibiting sexual harassment as a form of discrimination, whereas paragraph 2 of Article 26 ESC is the first international provision to establish a fundamental right to protection of human dignity against harassment creating a hostile working environment related to any specific characteristic of a person.22 The ECSR emphasises in its Statement of Interpretation in relation to Article 26(2) ESC that, irrespective of admitted or perceived grounds, harassment creating a hostile working environment characterised by the adoption towards one or more persons of persistent behaviours that may undermine their dignity or harm their career must be prohibited and suppressed, and that the protection must include the right to appeal to an independent body in the event of harassment, the right to obtain adequate compensation and the right not to be retaliated against for upholding these rights.23 As the first international standard on this issue, it is not surprising that the concept of dignity in Article 26 ESC is still narrow and addresses only the immaterial aspects, ie sexual harassment and moral harassment at work in general.24 Other provisions of the ESC guaranteeing different fundamental labour rights – including the right to work (Article 1), the right to just conditions of work (Article 2), the right to safe and healthy working conditions (Article 3), the right to fair remuneration (Article 4) and many others – are also related to human dignity. For example, the right to fair remuneration (Article 4 ESC) includes also the right of workers to remuneration such as would give them and their families a decent standard of living (paragraph 1). According to ECSR case law, the concept of ‘decent standard of living’ goes beyond merely material basic necessities such as food, clothing and housing, and includes resources necessary to participate in cultural, educational and social activities.25 The European Committee of Social Rights (ECSR) refers to dignity as one of the core values underlying the whole ESC: The Charter was envisaged as a human rights instrument … It is a living instrument dedicated to certain values which inspired it: dignity, autonomy, equality 22 C Kollonay-Lehoczky, ‘Article 26: The Right to Dignity at Work’ in N Bruun, K Lörcher, I  ­Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford and Portland, Hart Publishing, 2017) 439–40. 23 ECSR, Conclusions 2007, Statement of Interpretation on Art 26(2). 24 See also Tóth (n 1) 315. 25 ECSR, Conclusions 2010, Statement of Interpretation on Art 4(1).

198  Barbara Kresal and ­solidarity. … Human dignity is the fundamental value and indeed the core of ­positive European human rights law – whether under the European Social Charter or under the European Convention of Human Rights.26

iii.  ILO Instruments Human dignity and the concept of decent work have been firmly integrated into many important ILO documents. Already the ILO Declaration of ­Philadelphia, 1944 proclaims that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’ (Part II, sub a). Protection of the dignity of the worker as a value has been reaffirmed through the adoption of numerous ILO conventions and recommendations and is also closely related to the ILO Declaration on Fundamental Principles and Rights at Work 1998 and to the ILO Declaration on Social Justice for a Fair Globalization 2008. The Declaration institutionalises the ILO Decent Work Agenda as the core of the ILO’s policies.27 Indicators of decent work have been developed that are linked to the four strategic pillars of the Decent Work Agenda, ie (i) international labour standards and fundamental principles and rights at work, (ii) ­employment creation, (iii) social protection and (iv) social dialogue and tripartism.28 The ILO concept of decent work has become widely recognised and is reflected (at least at the declaratory level) in many other international documents, development declarations, free trade and investment agreements. According to the ILO, decent work comprehends dignity, equality, a fair income and safe working conditions, voice at work and rights to protect people from exploitation.29 It puts people at the centre of a society’s development. The ILO Declaration on Social Justice emphasises that the fundamental values of freedom, human dignity, social justice, security and non-discrimination are essential for sustainable economic and social development and efficiency. Decent work is considered to be a means of living in dignity.30 iv.  UN Instruments As already mentioned, the Preamble of the UDHR starts with the recognition of inherent dignity. Article 1 UDHR states that ‘all human beings are born free 26 ECSR, 8 September 2004, Decision on the merits, No 14/2003, FIDH v France, paras 27–31. 27 ILO, Declaration on Social Justice for a Fair Globalization (Geneva 2008) 1. 28 ILO, Decent work indicators: guidelines for producers and users of statistical and legal framework indicators (Geneva, International Labour Office, 2013). 29 ILO, Decent Work video (http://www.ilo.org/global/topics/decent-work/lang--en/index.htm). 30 ‘For many, it is the primary route out of poverty, for many, it is about realizing personal aspirations in their daily existence and about solidarity with others, and everywhere and for everybody, decent work is about securing human dignity’ (ILO, Reducing the decent work deficit. A global ­challenge, Report 1A, 89th session ILC (Geneva 2001) 6.

Article 1  199 and equal in dignity and rights’. Dignity is further mentioned in Article 22 UDHR in relation to the right to social security, as well as in Article 23 UDHR, dedicated to the right to work and more specifically in paragraph 3 to the right to just and favourable remuneration. Among numerous important UN documents, the International Covenant on Economic, Social and Cultural Rights has to be mentioned, which in its Preamble states that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’ and that ‘these rights derive from the inherent dignity of the human person’. It is also strongly emphasised in the Preamble that ‘the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights’. The interdependence and indivisibility of all human rights are crucial for a correct understanding of the potential of the fundamental right to human dignity. II. CONTENT

A.  General Observations The content of the right to human dignity in general, and specifically in the field of labour relations, is difficult to define with precision. Many authors point to the vagueness of the concept of human dignity. It is a dynamic concept in the sense that its concretisation depends on time, place and culture.31 Tóth describes the concept of the dignity of the worker as elusive, depending on cultural, moral and contextual considerations.32 McCrudden argues that there is little common understanding of what dignity requires substantively and that it is context-specific and varies significantly from jurisdiction to jurisdiction.33 According to Dupré, human dignity could become a powerful factor of integration and the engine driving an EU system of human rights protection, but also ‘there is a risk that dignity might become a powerful locus of disagreement and controversy, with a potentially divisive impact’.34 The scope of Article 1 is very wide, taking into account its general nature and far-reaching concept of human dignity. It applies to all human beings

31 K Reyniers, ‘Human Dignity and Decent Work as Ultimate Objectives of Labour Law’ in M Rigaux, J Buelens and A Latinne (eds), From Labour Law to Social Competition Law? (Cambridge-Antwerp-Portland, Intersentia, 2014) 162. 32 Tóth (n 1) 315. 33 McCrudden (n 1) 681–714. 34 Dupré (n 11) 13.

200  Barbara Kresal and consequently, in the field of labour relations, to all workers, whereby this notion should be understood as widely as possible. All workers engaged in any type of work – standard and non-standard, self-employed, in a regular or an irregular situation, even in illegal work – are covered by Article 1 and should enjoy effective protection against violations of their dignity as human beings when working for someone else. Workers do not waive their right to human dignity by entering labour relations. All workers irrespective of their personal characteristics, such as age, gender or nationality, are covered by Article 1. Human dignity is inherently linked to the notion of a human being, a person. The Charter speaks in Article 1 of human dignity. Only physical persons, human beings, are protected by Article 1, and not companies, agencies, institutions and other legally-constructed entities.35 B.  Field of Application When defining the field of application of Article 1 and relevant labour/social rights, due regard should be taken of Article 51, according to which the CFREU applies to the institutions and bodies of the EU and to the Member States only when they are implementing EU law, whereby the Charter does not establish any new powers or tasks of the EU or modify existing ones.36 Taking into account the general and overarching nature of the right to human dignity, Article 1 is relevant in relation to all labour law issues dealt with by the provisions of the treaties or EU directives in this field, ie equality/ anti-discrimination directives, working time and health and safety directives, posted workers directives, non-standard work directives as well as many other labour law directives. Besides, as De Schutter explains, to guarantee a right it is not necessary to have the power to take measures that will implement it because the commitment to respect a right may imply that the EU commits not to restrict the ability of the Member States, which are competent in this regard, to adopt such measures aiming at the realisation of the right in question.37 To conclude, the field of application for Article 1 should be defined in a broad sense.

35 ibid 16. 36 For an in-depth analysis of the field of application and Art 51 see A Koukiadaki’s commentary in ch 6 of this book. 37 O De Schutter, The European Social Charter in the Context of Implementation of the EU ­Charter of Fundamental Rights (Brussels, European Parliament, 2016) 15. De Schutter points out that in order to respect a particular right there is no need for the EU to have the power to take ­measures that fulfil the said right: all that is required is that it abstains from taking measures that might affect its implementation.

Article 1  201 C.  Specific Rights i.  Rights Protecting Workers’ Immaterial and Material Interests It goes without saying that Article 1 covers civil and political, as well as economic, social and cultural rights. Dupré points out that human dignity would be deprived of its significance if it were used exclusively in relation to civil and political rights.38 Its material scope is very wide. Due to its overarching and fundamental nature, being a fundamental right in itself and the source of each and every human right, it is impossible to describe all specific rights deriving from the right to human dignity that are relevant in labour relations. Although Article 1 does not explicitly define any specific right, it can be used, alone or in conjunction with other Charter provisions – especially Article 31 on fair and just working conditions and other labour rights – as a source for ­numerous specific rights in the field of labour law, such as the right to decent (limited, worker-friendly and family-friendly) working time, the right to decent remuneration, including a minimum level of remuneration guaranteeing a decent standard of living, the right to physical and moral integrity of the worker and the right to be protected against inhuman working conditions in general and so on. In the field of labour relations the right to human dignity should cover both the immaterial and the material interests of workers. Reyniers suggests that it refers to the protection and realisation of the physical, as well as the mental integrity of human beings.39 A narrower approach in Article 26 RESC limiting the right to dignity at work only to sexual harassment and harassment at work in general – ie to the moral integrity of workers – should not be perceived as an obstacle to activating the full potential of the general right to human dignity also in the field of labour relations. As Dupré noted, human dignity is the source of all rights contained in the CFREU, including therefore all ‘solidarity rights’, social rights and welfare provisions.40 ii.  The Missing CJEU Case Law on Article 1 in Labour Cases If the right to human dignity is understood in a broad sense, as a foundation, source and essential part of all other human rights – ie as an overarching concept touching upon every aspect of human existence and stemming from the very essence of humanity and recognition of the intrinsic worth of human beings – then its content should also be defined in terms of labour rights that



38 Dupré

(n 11) 17. (n 31) 162. 40 Dupré (n 11) 17. 39 Reyniers

202  Barbara Kresal form the essential part of human dignity and the CJEU should also refer to ­Article 1 in cases dealing with labour relations issues.41 The reason why Article 1 has not been invoked by the CJEU very often and especially not in labour cases may well lie in the fact that more specific (labour) rights with a more precisely defined content are included in the CFREU. As long as there is a more specific right, it seems that there is no need to invoke a general and fundamental Article 1 on the right to human dignity.42 The CJEU has referred to Article 1 mainly in cases involving migrants, asylum seekers, involuntary hospitalisation and in some criminal cases.43 McCrudden notes that also the ECtHR tends to treat as a violation of human dignity only extreme human rights violations, such as torture and inhuman and degrading treatment or slavery, servitude and forced labour. Because the ECtHR is very cautious in bringing forward ‘dignity’ arguments in support of their conclusions in employment rights cases, except in cases of the most extreme type, McCrudden expresses concerns that by linking labour rights to human dignity labour law might risk losing its autonomy and labour rights may struggle for recognition by human rights courts.44 Despite these fears, the centrality of labour rights in the concept of human dignity and, vice versa, the centrality of human dignity in labour rights should be acknowledged more explicitly and widely and should also be reflected in the case law. iii.  A Source of ‘New’ Fundamental Labour Rights and a Means for their Interpretation The fact that Article 1 on human dignity is connected to all other rights in the Charter, including labour rights, and has a fundamental and overarching

41 Not just in exceptional cases of extreme labour exploitation that may amount to inhuman t­ reatment. 42 Another explanation could be that although the Charter explicitly builds on the indivisibility of all human rights, be they civil and political or economic and social rights, and that they are all put on the same footing without any hierarchy among those rights in the Charter (except for the primacy of human dignity as a fundamental right and a universal value), labour rights are still – without any reasonable explanation and legal argumentation – considered ‘less serious’ and ‘less rights’. Such an approach should be overcome and rejected because it is not in accordance with the wording and spirit of the Charter. On indivisibility of fundamental rights and their universal nature as the most distinctive features of the CFREU see also S Coppola, ‘Social Rights in the European Union: The Possible Added Value of a Binding Charter of Fundamental Rights’ in G di Federico (ed), The EU Charter of Fundamental Rights – From Declaration to Binding Instrument (Dordrecht, Springer, 2011) 210. See also F Dorssemont, ‘Values and Objectives’ in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford and Portland, Hart, 2012) 56–57. 43 For a detailed overview of CJEU case law relevant to Art 1 see the FRA’s case-law database at http://fra.europa.eu/en/case-law-database. 44 A Bogg, C Costello, ACL Davies and J Prassl (eds), The Autonomy of Labour Law (Oxford and Portland, Hart, 2015) 11, 94, 288.

Article 1  203 f­unction, can have different effects. As Dupré points out, the right to human dignity can have a subsidiary function and becomes relevant in the absence of a more specific right.45 It can be used as a source from which ‘new’, more concrete rights may be derived.46 Article 1 can also have an impact on the interpretation of other rights. Given that all Charter provisions on fundamental rights are interrelated, that means that other provisions in the Charter, including those dealing with labour relations, have to be interpreted in light of the right to human dignity as a fundamental value in the constitutional legal order of the EU. Many authors have called for a more elaborated legal concept of human dignity and for a more precise identification of the elements of its content, also in terms of labour rights issues. Vial argues, however, that a precise definition is not necessary and may even run the risk of colliding with different national concepts of human dignity.47 Nevertheless, linking specific labour rights (individual as well as collective labour rights) with Article 1 on human dignity may well reinforce these rights, add to their fundamental nature and, in certain cases, also help to develop their content. Because some labour rights are defined in the Charter in a rather general manner and some of them even rather narrowly, this potential of linking them with Article 1 should not be overlooked for a correct interpretation of these rights. iv.  Workers Should be Treated as Human Beings and Not as Commodities Although the concept of decent work is difficult to specify, it seems that Reyniers’ attempt to do so might be useful; ie decent work refers to employment that ensures workers’ fundamental rights in the best possible way and presumes that work must meet certain demands of quality (as regards reasonable working time, fair pay, safe and healthy working environment, content of work, equal treatment and non-discrimination, participation in decision-making process within the enterprise).48 Tóth develops a definition of the content by referring to Article 23 UDHR; ie the right to work, the right to equal pay, the right to just and favourable working conditions and remuneration and freedom of association are identified as manifesting the requirements of the dignity of workers.49 The outcome of the ILO project aimed at developing and identifying Decent Work Indicators may also be helpful. These indicators cover 10 substantive

45 Dupré (n 11) 7. 46 McCrudden (n 1) 721. 47 C Vial, ‘Article 1 – Dignité humaine’ in F Picod and S Van Drooghenbroeck (eds), Charte des droits fondamentaux de l’Union européenne: Commentaire article par article (Bruxelles, Bruylant, 2018). 48 Reyniers (n 31) 165–66. 49 Tóth (n 1) 277.

204  Barbara Kresal elements that represent the structural dimensions of the decent work measurement framework: (i) employment opportunities; (ii) adequate earnings and productive work; (iii) decent working time; (iv) combining work, family and personal life; (v) work that should be abolished; (vi) stability and security of work; (vii) equal opportunity and treatment in employment; (viii) safe work environment; (ix) social security; and (x) social dialogue, employers’ and ­workers’ representation.50 Not just defining the relevant aspects of decent work is important, but also the substantive content of these aspects, ie the level of workers’ rights. Here, the reference to internationally agreed minimum labour standards, as well as relevant opinions and interpretations by the supervisory bodies – such as the ECSR for the ESC and the ILO supervisory bodies for the ILO conventions – have to be taken as a starting point. If the Charter is taken seriously, as it should be, the wording of Article 1, as well as its aim and purpose (together with the aim and purpose of the whole Charter and taking into account Articles 2 and 3 TEU) undoubtedly indicate that people and their material and immaterial well-being should be at the heart of the EU’s concerns. Consequently, as Dupré points out, a combined reading of Article 2 TEU and Article 1 CFREU indicates that the development of the single market has to be pursued with the interests of human beings at its heart.51 Because human dignity is inviolable, it must be respected even where a specific right is restricted, as emphasised by the Explanations to Article 1. That means that economic freedoms, for example, when restricting labour rights (which form, as explained above, essential aspects and elements of human dignity),52 must not go beyond what is necessary and proportionate and must not in any case interfere with workers’ right to dignity. D. Limitations The wording of Article 1 (human dignity is inviolable) suggests that no limitations are possible. According to the Explanations, human dignity is the substance of other rights; therefore, if any of these rights is restricted, these restrictions may not in any event harm the dignity of the person concerned; such

50 ILO (n 28). 51 Dupré (n 11) 16. 52 As a rule, the CJEU’s approach to such situations is to consider labour rights as restrictions on economic freedoms which can be justified under certain conditions. The upshot of this approach is described by Curzon and many other authors as market-oriented (SJ Curzon, ‘Internal Market Derogations in Light of the Newly Binding Character of the EU Charter of Fundamental Rights’ in G di Federico (ed), The EU Charter of Fundamental Rights – From Declaration to Binding Instrument (Dordrecht, Springer, 2011) 151).

Article 1  205 a restriction would violate the essence, the core of the right and at the same time Article 1 on human dignity. Many authors emphasise an absolute character of the right to human dignity, as a consequence of its inviolability. This would mean that Article 1 falls outside the scope of Article 52(1) which, under prescribed conditions, allows certain limitations on the exercise of the rights enshrined in the Charter; ie human dignity cannot be limited at all.53 In that way Article 1 and Article 52(1) reinforce each other and follow the idea that there is a core of each right, at least such that is necessary to protect and respect human dignity, which has to be protected in any case. However, in the Omega case,54 for example, the CJEU used Article 1 as a justification for a restriction on economic freedoms, but did not provide it with an absolute character (see paragraphs 34–36). Similarly, for example, in the Laval case, the CJEU, referring to Schmidberger55 and Omega, explained that the exercise of the fundamental rights at issue, that is, freedom of expression and freedom of assembly and respect for human dignity, respectively, does not fall outside the scope of the provisions of the Treaty. Such exercise must be reconciled with the requirements relating to rights protected under the Treaty and in accordance with the principle of proportionality.56

Dupré presents the arguments in favour of the relative character of Article 1 and warns that, although an absolute concept of dignity could be used in extreme cases as a last resort in the event of a violation of the very essence of humanity, it may also bring it about that any questioning and subsequent evolution of its meaning and of the rights derived from it would be very difficult, if not impossible.57 If an absolute character of human dignity is accepted, we run the risk that the content of that right will tend to be defined in a (too) narrow way, focused only on the minimum essence of basic humanity. An absolute character of this right would mean that the entire content of the right to human dignity is at the same time the core of this right, ie that the core of the right covers the right entirely and that there is no distinction between the right and its core, which again is rather contradictory. On the other hand, if restrictions on the right to human dignity are allowed, under the conditions laid down in Article 52(1) this might be in contradiction with the very wording of Article 1 (and the Explanations to Article 1) and the concept of inviolability of this right. Further CJEU case law on this issue should clarify the situation and resolve this dilemma.



53 Vial

(n 47). 14 November 2004, C-36/02, Omega. 55 CJEU, 12 June 2003, C-112/00, Schmidberger, para 77. 56 CJEU, 18 December 2007, C-341/05, Laval, para 94. 57 Dupré (n 11) 21–22. 54 CJEU,

206  Barbara Kresal E. Enforcement Article 1 may be invoked before the CJEU within the procedure for a preliminary ruling, as well as when an action for annulment is brought before the CJEU.58 Violations of human dignity by the EU institutions may also be addressed in EU staff cases before the General Court (previously the Civil Service Tribunal). EU law does not regulate any specific remedy against violations of human rights; national legal systems of enforcement and the respective remedies are therefore relevant and probably even more effective in this regard.59 III. CONCLUSIONS

As Dupré argues, the codification of human dignity under Article 1 CFREU provides a solid basis for human rights protection. It protects the person as a whole and not just specific types of rights (eg civil and political rights). Human dignity is thus intertwined with the equality requirement and is an inherently human quality that exclusively protects human beings.60 It seems that the true potential of Article 1 on the right to human dignity has not yet been adequately used in the field of labour relations. The CJEU has not yet referred to it (alone or in conjunction with one of the Charter’s labour rights provisions) in matters dealing with labour relations. Nevertheless, it is important to stress both, that the right to human dignity is a basis and source for fundamental social rights and, in particular, rights at work, and that labour rights form an essential part of human dignity. Labour rights are a necessary precondition for the actual realisation and concretisation of the abstract concept of human dignity in everyday life of real people. According to Ben-Israel, accepting a worker’s labour as an extension of their personality signifies that work cannot be considered only in relation to its market value, but also has to be considered in terms of a moral dimension that reflects freedom and dignity.61 Full recognition of the principle of indivisibility and the equal hierarchical level of all human rights within the EU constitutional order is crucial. Kenner is critical in this respect, saying that the evidence suggests that the present hierarchical approach will be maintained and that by implying the

58 Considering the detrimental effects of certain austerity measures in relation to respect for human dignity, it seems that the possibility to challenge such measures by an action for annulment could be one option in response to unacceptable austerity measures. 59 ibid 23. 60 ibid 24. 61 R Ben-Israel, ‘The Rise, Fall and Resurrection of Social Dignity’ in R Blanpain (ed), Labour Law, Human Rights and Social Justice: Liber Amicorum in Honour of Ruth Ben-Israel (The Hague, Kluwer, 2001) 4.

Article 1  207 superiority of the ECHR and its Court in comparison with the ESC and the ECSR (see Article 52(3) CFREU), the Charter appears to reaffirm the ‘second generation’ status of economic and social rights.62 Such an approach demands improvement. It is for the CJEU, in dialogue with the national (constitutional) courts and other relevant institutions, to bring out the full meaning of the Charter’s normative concept of indivisible rights and to strengthen, through its case law, the fundamental nature of labour rights, also by linking them with the concept of human dignity enshrined in Article 1.

62 J Kenner, ‘Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights – A Legal Perspective (Oxford-Portland, Hart, 2003) 24–25.

208

10 Article 5 – Prohibition of Slavery and Forced Labour NIKLAS BRUUN AND JOANNA UNTERSCHÜTZ

Article 5 Prohibition of slavery and forced labour 1.  No one shall be held in slavery or servitude. 2.  No one shall be required to perform forced or compulsory labour. 3.  Trafficking in human beings is prohibited.

EXPLANATIONS 1.  The right in Article 5(1) and (2) corresponds to Article 4(1) and (2) of the ECHR, which has the same wording. It therefore has the same ­ meaning and scope as the ECHR Article, by virtue of Article 52(3) of the Charter.­ Consequently: –– no limitation may legitimately affect the right provided for in paragraph 1; –– in paragraph 2, ‘forced or compulsory labour’ must be understood in light of the ‘negative’ definitions contained in Article 4(3) of the ECHR: For the purpose of this article the term “forced or compulsory labour” shall not include: (a)  any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b)  any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c)  any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d)  any work or service which forms part of normal civic obligations.

210  Niklas Bruun and Joanna Unterschütz 2.  Paragraph 3 stems directly from human dignity and takes account of recent ­developments in organised crime, such as the organisation of lucrative i­llegal immigration or sexual exploitation networks. The Annex to the Europol Convention contains the following definition which refers to trafficking for the purpose of sexual exploitation: “traffic in human beings: means subjection of a person to the real and illegal sway of other persons by using violence or menaces or by abuse of authority or intrigue with a view to the exploitation of prostitution, forms of sexual exploitation and assault of minors or trade in abandoned children.” Chapter VI of the Convention implementing the Schengen Agreement, which has been integrated into the Union’s acquis, in which the United Kingdom and Ireland participate, contains the following wording in Article 27(1), which refers to illegal i­ mmigration networks: “The Contracting Parties undertake to impose appropriate penalties on any person who, for financial gain, assists or tries to assist an alien to enter or reside within the territory of one of the Contracting Parties in breach of that Contracting Party’s laws on the entry and residence of aliens.” On 19 July 2002, the Council adopted a framework decision on combating trafficking in human beings (OJ L 203, 1 August 2002, p. 1) whose Article 1 defines in detail the offences concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation, which the Member States must make punishable by virtue of that framework ­decision.

I. INTRODUCTION

A.  Context and Main Content The prohibition of slavery and forced labour is an essential and traditional core element in all civil and political human rights instruments. It is even generally accepted that the prohibition of slavery and servitude has to be considered a peremptory norm of international law on human rights; it is of an absolutely binding nature from which no exceptions are permitted.1 At the same time, social human rights instruments refer to the prohibitions indirectly by declaring the right to work that one ‘freely chooses or accepts’ (Article 6(1) ICESCR) or ‘occupation freely entered upon’ (Article 1(2) ESC). In the twenty-first century, apart from the persistence of situations of c­ hattel slavery, where a person has de jure ownership over another, the existence of a variety of new slavery-like practices – forced labour, bonded labour or debt bondage practices, forced prostitution and sex slavery, the worst forms of child



1 See

also Art 15(2) ECHR.

Article 5  211 labour, trafficking in persons, and early and forced marriages – has not been eliminated.2 According to the ILO, slavery and forced labour are still a major problem globally, although new forms of coercion and exploitation also characterise modern slavery.3 The ILO estimates that, worldwide, 40 million people were victims of modern slavery in 2016 because they were being forced to work against their will under threat: –– 25 million people in forced labour; –– 15 million people in forced marriages. Women and girls accounted for 71 per cent of modern slavery victims. One in four victims of modern slavery were children. Forced labour of children is defined as work performed by a child under coercion applied by a third party (other than their parents) either to the child or to the child’s parents, or work performed by a child as a direct consequence of his other parent or parents being engaged in forced labour. Debt bondage affected half of all victims of forced labour imposed by private actors. Furthermore, on average, there were an estimated 4.1 million people in state-imposed forced labour in 2016. They included citizens recruited by their state authorities to participate in agriculture or construction work for purposes of economic development, young military conscripts forced to perform work that was not of a military nature, and those forced to perform communal services that were not decided upon at the community level. One common form of forced labour is forced sexual exploitation of adults, imposed by private agents for commercial sexual exploitation, and all forms of commercial sexual exploitation of children. This encompasses the use, procuring or offering of children for prostitution or pornography. Compared with earlier human rights instruments, the novelty of Article 5 is that it includes a prohibition of trafficking in human beings. While the concept of trafficking in persons has been addressed in a number of earlier instruments, the most recent and widely accepted definition is that contained in a Protocol to the United Nations Convention against Transnational Organized Crime, the so-called Palermo Protocol, adopted in 2000. The definition specifies that the crime of trafficking is a process constituted by three distinct elements: act, means and purpose (exploitation). Coercion is one of the means enumerated in the Protocol, which states that when coercion (or any other means) is used to get victims into an exploitative situation, actual exploitation need not happen for a trafficking crime to have taken place. 2 S Scarpa, Trafficking in Human Beings: Modern Slavery (Oxford, Oxford University Press, 2008) 5. 3 See ILO, Global Estimates of Modern Slavery (Geneva, ILO, 2017) Available at: http://www.ilo. org/wcmsp5/groups/public/---dgreports/-dcomm/documents/publication/wcms_575479.pdf.

212  Niklas Bruun and Joanna Unterschütz B.  Relationship to Other Provisions of the Charter Article 5 is closely related to Article 1 on human dignity because violations of Article 5 by definition also violate Article 1. Many forms of slavery and forced labour may also violate Articles 3 and 4, because they may amount to inhuman or degrading treatment or violate the right to integrity of the person concerned. Also, Article 15 regarding freedom to choose an occupation and right to engage in work is violated in the context of forced labour. Article 18 recognises the right to asylum, which might open possibilities to escape forced labour and Article 19 (2) recognises the principle of non-refoulement, which is a jus cogens principle of international law, providing for the prohibition of expelling and deporting a person to a country where he or she may be subject to torture or other serious human rights violations. Modern slavery and forced labour may violate a number of equality rights: For example, forced marriage of girls amounts to sex discrimination under ­Articles 21 and 23, while forced child labour violates Article 24. Finally, forced labour makes most solidarity rights meaningless (including information and consultation, Article 27), while it may, additionally, gravely violate Article 31(1), as it expressly refers to ‘working conditions which respect his or her … dignity’ and Article 32 referring inter alia to prohibition of child labour. C.  Relationship to Other Relevant Instruments i.  EU Instruments Article 79 TFEU sets out that the Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings, in particular women and children.4 Article 83(1) TFEU gives the EU competences to: by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.



4 See

for more detail Art 79 TFEU.

Article 5  213 Based on Articles 82–83 TFEU the EU has adopted the Directive on preventing and combating trafficking in human beings and protecting its victims.5 Earlier on, the EU had adopted the Directive on the residence permit issued to thirdcountry nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities.6 The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016 sets the policy framework and identifies five priorities the EU should focus on. It also outlines a number of actions that the European Commission proposed to implement during 2012–16 in concert with other actors, including Member States, European External Action Service, EU institutions, EU a­ gencies, international organisations, third countries, civil society and the private sector. Those priorities are as follows: 1. 2. 3. 4.

identifying, protecting and assisting victims of trafficking; stepping up the prevention of trafficking in human beings; increased prosecution of traffickers; enhanced coordination and cooperation among key actors and policy coherence; 5. increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings. ii.  Council of Europe Instruments The model for the Article 5 is – as clearly stated above in the explanations  – ­Article 4 ECHR, which differs from Article 5 in two respects. It does not explicitly mention the exceptions and it lacks the reference to trafficking in human beings in point 3. As will be developed below the meaning and scope of Article 5(1) and (2) must be interpreted in conformity with Article 4 ECHR.7 Furthermore in 2005 the Council of Europe Convention on Action against ­Trafficking in Human Beings was adopted.8

5 Directive 2011/36/EU, which replaced the Council Framework Decision 2002/629/JHA on combatting trafficking in human beings. 6 Directive 2004/81/EC. 7 See Case law guide on Art 4 (updated on 31 August 2017) http://www.echr.coe.int/Documents/ Guide_Art_4_ENG.pdf; Art 1(2) ESC and the case law of the ECSR, see Digest 2008 (https:// rm.coe.int/168049159f), 22–23: ‘2. Prohibition of forced or compulsory labour’; V Mantouvalou, ‘Prohibition of Slavery, Servitude and Forced and Compulsory Labour under Article 4 ECHR’ in F Dorssemont, K Lörcher, I Schömann (eds), The European Convention on Human Rights and the Employment Relation (Oxford and Portland Oregon, Hart Publishing, 2013). 8 CETS No 197, https://www.coe.int/en/web/anti-human-trafficking. This Convention has been ratified by all EU Member States and this transforms it into a minimum standard according to Art 53; see the Chapter on Interpretation in this publication.

214  Niklas Bruun and Joanna Unterschütz iii.  ILO Instruments The ILO has a longstanding history regarding prohibition of slavery and forced labour. The Forced Labour Convention No 29 came into force in 1930. Here the term ‘forced or compulsory labour’ ‘shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’ (Article 2). The definition, however, is followed by a list of situations that fall outside the scope of term ‘forced and compulsory labour’. In 1957 the ILO adopted the Abolition of Forced Labour Convention (No  105). In 1998 these two Conventions were defined as two of the eight Conventions of Fundamental Rights that all Member States have to implement and report on, regardless of whether they have ratified them or not.9 In 2014 the Protocol to the Forced Labour Convention was adopted,10 as well as the 2014 Recommendation on supplementary measures regarding forced labour. The 2014 Protocol stipulates that each Member State shall take effective measures to prevent and eliminate its use, to provide victims with protection and access to appropriate and effective remedies, such as compensation, and to sanction the perpetrators of forced or compulsory labour. Furthermore, each Member State shall develop a national policy and plan of action for the effective and sustained suppression of forced or compulsory labour in consultation with employers’ and workers’ organisations. The Protocol also reaffirmed the ­definition of forced or compulsory labour contained in the Convention. Therefore the measures referred to in the Protocol shall include specific action against trafficking in persons for the purposes of forced or compulsory labour. ILO Convention No 182 (1999) regarding the elimination of the worst forms of child labour, identifies trafficking as one of several ‘worst forms of child labour’. ILO Convention No 189 (2011) also contains explicit provisions aimed at the protection of this group of vulnerable workers from forced labour (­Article 3) and also obligations for Member States to take measures to ensure that domestic workers enjoy effective protection against all forms of abuse, harassment and violence (Article 5). iv.  UN Instruments The Universal Declaration of Human Rights in its Article 4 already had a clear provision prohibiting slavery and forced labour.11 Also Article 8 ICCPR has such a provision, which is framed with similar exceptions to ILO Convention No 29. There exist some cases under the Optional Protocol concerning Article 8, but it is one of the Articles that which has drawn the least attention.12 9 ILO Declaration on Fundamental Principles and Rights at Work 1998. 10 It entered into force on 9 November 2016. 11 Already the 1926 League of Nations Convention on Slavery was important. 12 Art 8 CCPR is one of the few articles whose interpretation has not been developed within the framework of a General Comment.

Article 5  215 The 1979 UN Convention on the Elimination of All Forms of Discrimination against Women in its Article 6 requires States parties to take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of the prostitution of women. The 1989 Convention of the Rights of the Child prohibits trafficking in ­children for any purpose (Article 35), as well as the sexual exploitation of ­children (Article 34) and forced or exploitative labour (Article 36). In 2000 the UN adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol), which also defines the concept of trafficking in human beings. II. CONTENT

A.  General Observations Article 5 contains one of the most fundamental rights in the tradition of civil and political rights, but also rights that have received a new and important relevance in the context of globalisation. Although Article 5 formulates prohibitions, there is no doubt that this article establishes a subjective right (not only a p ­ rinciple within the meaning of Article 52(5)) protecting against slavery, servitude, slave trade in all its forms, and finally against forced or compulsory labour.13 Article 5 does not contain any positive definition of ‘forced and compulsory labour’, but in practice the ECtHR14 has as a starting point applied the definition from the ILO Convention No 29, according to which ‘forced and compulsory labour’ means ‘all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. When applying this definition one has to take into account that this definition does not cover the kinds of work and service that are listed in ­Article 4(3) ECHR. The list does not enumerate any exceptions to Article 4(2), but they form part of the definition of ‘forced and compulsory labour’. In practice, the general prohibitions of slavery and forced labour in the international instruments are invoked rather rarely; often they are dealt with together with specific restrictions of child labour or domestic workers and other vulnerable groups. Article 5(3) is implemented in several European countries in the form of legislation criminalising trafficking for labour exploitation as abuse of vulnerability in conditions incompatible with ‘human dignity’.15 13 J Sobczak, ‘Komentarz do artykułu 5’ in A Wróbel (ed), Karta Praw Podstawowych Unii Europejskiej. Komentarz (Warszawa, CH Beck, 2013). 14 See ECtHR, 23 November 1983, A 70, Van der Mussele v Belgium. 15 See ILO, Forced Labour and Human Trafficking. Casebook of Court Decisions (Geneva, ILO, 2009) 57.

216  Niklas Bruun and Joanna Unterschütz B.  Field of Application The significance of Article 5 in EU law is restricted by the two general limitations under Article 51: Article 5 only applies generally to EU institutions and Member States when they are implementing EU law and the EU Charter does not establish any new power or task for the Union. As a consequence, the Charter can be invoked in the Member States regarding Article 5(3), whereas forced or compulsory labour can be invoked only in the context of the trafficking of human beings, because here it has to be regarded as an instance in which Member States are implementing EU law.16 In the context of purely ‘national’ violations of the prohibition of forced or compulsory labour, on the other hand, the victims have to invoke other international instruments. Article 5 also encompasses forced labour imposed not only by private entities, but also by state authorities. Article 5 clearly, by its wording, does not contain any limitation regarding its scope of application to certain categories of workers or certain types of labour. ‘Labour’ does, however, refer to ‘work’ or ‘services’ and Article 5 cannot normally be applied to education and training where compulsory education and education schemes are generally accepted. Subjects covered by Article 5 include all natural persons, also with limited – legally or actually – ability to act, including, of course, legal capacity. But whatever legal persons and all other collective entities might be excluded from the subjective scope of Article 5 it applies to everyone, adults or children, whether or not they are EU citizens and in particular to third country nationals that might be in a vulnerable position. C.  Specific Rights i.  Positive Obligations States that are parties to the Charter bear responsibility for any actions or omissions of their bodies, officers or representatives who violate the prohibitions formulated in the text of Article 5. Of course, the State cannot be held responsible for acts or omissions of individual natural persons who do not have any functions in its organisational structures, as well as for the activities of private entities, corporations, enterprises, various associations and organisations. However, the States are obliged to create such a legal structure that will not allow violation of Article 5 and will open the way for effective enforcement of claims concerning the elimination of such violations, and will ensure the effective nature of such proceedings.17 16 H Askola, ‘Article 5’, in S Peers, T Hervey, J Kenner, A Ward (eds), The EU Charter of Fundamental Rights. A Commentary (Oxford and Portland, Oregon, Hart Publishing, 2014) 104. 17 Sobczak (n 13).

Article 5  217 In Siliadin v France the ECtHR noted that, with regard to certain Convention provisions (Articles 2, 3 and 8) the fact that a State refrains from infringing the guaranteed rights does not suffice to conclude that it has complied with its obligations under Article 1. In this connection, it held that limiting compliance with Article 4 ECHR only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective (paragraph 89). It therefore held that States have positive obligations under Article 4 ECHR. A State is required to prevent, regulate and protect persons against actions of private parties that might violate Article 4, that is, to take operational measures to protect victims and also to investigate potential violations of Article 4, as well as cooperate with authorities of the state of origin, transit and destination in case of investigations concerning human trafficking that took place in their territories.18 It should also put in place adequate measures regulating businesses often used as a form of human trafficking.19 Especially recent regulation of forced labour and trafficking requires strong action from State parties in this regard. Both the ILO 2014 Protocol to the Forced Labour Convention, as well as secondary legislation on trafficking are strongly focused on positive State obligations to prevent and remedy different forms of forced labour. ii.  Material Scope a. Slavery Slavery should be defined according to Article 1(1) of the 1926 Slavery Convention as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.20 Interpretation of this d­efinition varies from a very narrow one applied by the ECtHR in Siliadin21 to the wider approach encompassing both de jure and de facto slavery, which include the ability to purchase or transfer a person; the absolute use of a person, their labour or the ownership of the product of that labour; as well as the indeterminacy or the inheritability of the status or condition of a person held in slavery.22 But if the worker performed his work voluntarily and his entitlement to payment has never been denied, according to ECtHR in Sokur v Ukraine the dispute involves civil rights and obligations, but does not disclose any element of slavery within the meaning of Article 4(1) ECHR.23 18 Mantouvalou (n 7)148. 19 ECtHR, 7 January 2010, No 25965/04, Rantsev v Cyprus and Russia, para 283. 20 See also ECtHR, 11 October 2012, No 67724/09, CN and V v France and 13 November 2012, No 4239/08, CN v United Kingdom. 21 The ECtHR referred to exercising a genuine right of legal ownership over her, thus reducing her to the status of an ‘object’; ECtHR, 2005, No 73316/01, Siliadin v France. 22 J Allain, The Law and Slavery. Prohibiting Human Exploitation (Leiden, Martinus Nijhoff, 2015) 166. 23 ECtHR, 26 November 2002, No 29439/02, Sokur v Ukraine.

218  Niklas Bruun and Joanna Unterschütz b. Servitude The concept of ‘servitude’ – an obligation to provide one’s services that is imposed by the use of coercion – is to be linked with the concept of practices similar to slavery.24 In Siliadin v France the ECtHR considered that the victim was held in servitude because, in addition to the fact that she was required to perform forced labour, she was a minor. She had no resources, she was vulnerable and isolated with no means of living elsewhere than the home where she worked, at the mercy of and in complete dependence on her employers, without any freedom of movement or free time.25 In Chowdury v Greece the ECtHR states that the ‘fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of Article 4 of the Convention lies in the victim’s feeling that his or her condition is permanent and that the situation is unlikely to change’, but assessed that applicants could not have had such a feeling because they were all seasonal workers recruited to pick strawberries.26 c.  Forced and Compulsory Labour ‘Forced and compulsory labour’ is defined in Article 2 of ILO Convention No 29 as ‘all work or service that is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. It is important to underline that ‘all work or service’ encompasses all types of work, employment or occupation, regardless of its legal basis or possible illegal character. The term may refer to prostitution, which is illegal in some c­ ountries, or domestic work in a private household, which is often not regulated by labour law.27 Even though Convention No 29 explicitly states that the definition of forced or compulsory labour formulated therein applies only for the purpose of the Convention, nevertheless it should also be applied to Article 5. Prohibition concerns all forms of forced labour, although in contrast to the regulations on slavery and similar practices, it permits exceptions from this prohibition on analogy with ILO Convention No 29. Therefore the issue of the interpretation of those situations not covered has been important. Especially within the ILO supervisory system the interpretation of the concept has been clarified.28 In the absence of a precise distinction between the concepts of ‘forced labour’ and ‘compulsory labour’, it is assumed that forced labour is the case when the element of coercion is actual; for example, debt bondage (usually fictitious),

24 Art 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 30 April 1957 covers debt bondage, serfdom, forced marriage and similar practices and child exploitation. 25 ECtHR, 2005, No 73316/01, Siliadin v France. 26 ECtHR, 2017, No 21884/15, Chowdury and others v Greece. 27 B Andrees, A Handbook for Labour Inspectors (Geneva, ILO, 2008) 4. 28 See the General Survey 2007.

Article 5  219 which might involve imprisoning the victim, collecting her identity documents, using violence, including sexual violence, and threats, including the threat of denunciation to the competent authorities that the person is remaining illegally in the territory of the country, deprivation of food or shelter and so on. Compulsory labour, however, is based on legal regulations.29 It may be difficult to distinguish forced labour from cases of employee exploitation, when, most often due to bad economic circumstance, the employee agrees to work under unfavourable conditions, often not seeing an alternative; his freedom is not limited, he can at any time terminate the contract between him and the employer. These circumstances do not necessarily qualify as forced labour.30 There are many forms of pressure and coercion that might be present in working life. The ECtHR held there to be a violation of Article 4(2) ECHR in a case obliging a resigning army officer to buy back his remaining years of service.31 Moreover, trade unions have raised concerns regarding: –– obligations to perform overtime work under threat of a penalty;32 –– obligations for unemployed workers to accept a job offer under threat of economic sanctions (loss of unemployment benefits);33 and –– obligations for striking workers to take up work under threat of various sanctions. In all these kinds of situations the general assessment has been that normally they do not amount to forced or compulsory labour. Only in situations in which work or service is imposed by exploiting the worker’s vulnerability, under the menace of a penalty, dismissal or payment of wages below the minimum level, does such exploitation cease to be merely a matter of poor conditions of employment and becomes one of imposing work under the menace of a  penalty.34

29 L Garlicki, ‘Komentarz do artykułu 4’, in L Garliicki, P Hofmański, A Wróbel (eds), Konwencja o ochronie praw człowieka i podstawowych wolności. Tom I. Komentarz do artykułów 1-18 (Warszawa, CH Beck, 2010) 146. 30 ILO, A Global Alliance against Forced Labour. Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (Geneva, ILO, 2005) 6. 31 ECtHR, 4 June 2015, No 51637/12, Chitos v Greece. 32 However, in ECtHR, 12 October 2017, No 57818/10, Tibet Menteş et al v Turkey, para 68, the ECtHR noted that the applicants – workers in airport shops complaining about unpaid overtime – had voluntarily agreed to their conditions of work involving continuous twenty-four-hour shifts. The mere possibility that they could be dismissed in the event of refusal did not, in the Court’s view, correspond to ‘the menace of any penalty’; in the same vein see ECtHR, 6 February 2018, No 7442/08, Adigüzel v Turkey, para 34. 33 The UN Human Rights Committee tried such a case under CCPR (Communication N 1036/2001). The Committee found the case admissible, but argued that the absence of a degrading or dehumanising aspect of the specific labour performed resulted in the view that the applicant had not been obliged to perform ‘forced or compulsory labour’. 34 To this effect see: ECtHR, 20 November 2002, No 29439/02, Sokur v Ukraine, in which the applicant was transferred to less lucrative employment (ECtHR, 3 December 2005, No 38020/03, Antonov v Russia).

220  Niklas Bruun and Joanna Unterschütz In ILO practice, work in plantations and export processing zones have in some cases been regarded as forced labour.35 Strike situations have primarily been dealt with under the Conventions regulating freedom of association. d.  Human Trafficking Exploitation of workers can take many forms, the most drastic of which is ­trafficking in human beings for forced labour. However, one can speak of a specific continuum (or spectrum) of exploitation that runs from one pole  – decent work – through various cases of violating workers’ rights to trafficking in human beings, which is the most extreme.36 Directive 2011/36/EU in ­Article 2 formulates a definition of human trafficking that draws from the one enshrined in the Palermo Protocol: the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability (a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved) or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Among forms of exploitation the Directive enumerates exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, ­slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. The definition comprises three elements that have to coincide in order to qualify the action as human trafficking: action (recruitment, transportation and so on); means (threat or use of force and so on); and purpose (exploitation).37 It also deems the consent of the victim irrelevant if any prohibited means were applied. In Rantsev the ECtHR extended the scope of Article 4 ECHR so that it covers also trafficking in human beings. The Court explained that using the ECHR as a living instrument the trafficking itself falls within the scope of Article 4 ECHR without the need to identify whether treatment to which the complainant was subject constitutes slavery, servitude or forced labour.38 This attitude may also help to shift the emphasis from the ‘prosecution oriented’ approach present in

35 ILO, Giving Globalisation a Human Face (Geneva, ILO, 2012) 123. 36 B Andrees, Forced Labour and Trafficking in Europe: How People are Trapped in, Live Through and Come Out (Geneva, ILO, 2008) 22. 37 P Daniluk, ‘Komentarz do art 115’ in RA Stefański (ed), Kodeks karny. Komentarz (Warszawa, CH Beck, 2017). 38 Rantsev (n 19) 281.

Article 5  221 EU anti-trafficking measures towards positive action, including protection of victims of human trafficking.39 D.  Limitations and Exclusions Article 4 ECHR and Article 2.2 ILO Convention No 29 explicitly exclude work performed in the following circumstances. i.  Compulsory Military Service Compulsory military service is excluded from the scope of ‘forced or compulsory labour’, but the work has to be of a ‘military character’. This ‘military character’ has been given a rather broad interpretation in practice. Both service instead of military service (conscientious objection) and service related to­ military activities (such as road construction or engineering) are covered. Persons serving in the army on a voluntary basis are not covered. However, in Chitos v Greece40 the Court found a violation of Article 4(2) ECHR on the ground that the authorities had placed a disproportionate burden on the applicant concerned. The case concerned the obligation imposed on an army officer to pay the State a substantial sum of money to allow him to leave the military before the end of the contracted service period. Even though the Court accepted that it was legitimate to demand compensation in order to recover costs associated with army officers’ education, there had to be a balance between the different interests involved. ii.  Civic Obligations Normal civic obligations may involve certain forms of service. In Van der Mussele v Belgium41 the Court accepted that the applicant, a pupil-advocate, had suffered from lack of remuneration and of reimbursement of expenses, but that the loss went hand in hand with the advantages he had enjoyed and had not been shown to be excessive. The ECtHR held that while remunerated work may qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of business. Noting that the ­applicant had not had a disproportionate burden of work imposed on him and that the amount of expenses directly occasioned by the legal work he performed



39 Askola

(n 16) 115. 19 October 2015, No 51637/12, Chitos v Greece. 41 ECtHR, Van der Mussele v Belgium (paras 34–41), see n 14. 40 ECtHR,

222  Niklas Bruun and Joanna Unterschütz in ­question had been relatively small, the Court concluded that he had not been a victim of compulsory labour for the purposes of Article 4(2). The jurisprudence also indicates that the obligation imposed on notaries to apply reduced fees when dealing with the affairs of some social organisations does not imply that they are forced to work by forced or compulsory work.42 The ECtHR also included compulsory service as a lay judge in ‘ordinary civil duties’. On this occasion, the ECHR found that the criteria for delimiting forced labour are what define what is considered a normal state. A work that is normal in itself may cease to be such if the selection of the group or individuals who are to perform it is discriminatory.43 Examples of ‘any work or service which forms part of normal civic ­obligations’ include: compulsory jury service;44 compulsory fire service or a financial contribution payable in lieu of service;45 an obligation to conduct free medical examinations;46 or the legal obligations imposed on companies in their capacity as employers to calculate and withhold certain taxes, social security contributions and so on from the salaries and wages of their employers.47 In Steindel v Germany48 the ECtHR decided that a physician’s obligation to participate in emergency medical service did not amount to compulsory or forced labour for the purposes of Article 4(2) ECHR as the services to be rendered did not fall outside the ambit of a physician’s normal professional activities, they were remunerated, not disproportionate and finally the obligation – aimed at ensuring the availability of medical services during these times – is founded on a concept of professional and civil solidarity and is aimed at averting emergencies. The ECtHR has developed standards for assessing what can be regarded as normal in relation to the obligations incumbent on people performing specific professions, which include factors such as whether the services provided go beyond the normal professional activity of the person concerned, whether services are provided for remuneration or without remuneration, or whether the service takes into account a different compensatory element, whether the service obligation is based on the concept of social solidarity and whether the imposed burden is disproportionate. iii.  Work in Detention Compulsory labour of convicted persons ‘in the ordinary course of detention’ is excluded from the scope of the ECHR. ILO Convention No 29 contains a 42 ECtHR, 13 December 1979, No 8410/78, X v Germany, DR 18/213. 43 ECtHR, 20 June 2006, No 17209/02, Zarb Adami v Malta; ECtHR, 8 July 1994, No 13580/88, Karlheinz Schmidt v Germany, para 29). 44 Zarb Adami v Malta, see n 43. 45 Karlheinz Schmidt v Germany, see n 43. 46 ECtHR, 28 June 1995, No 23866/94, Reitmayr v Austria. 47 Commission, Four Companies v Austria. 48 ECtHR, 14 September 2010, No 29878/07 Steindel v Germany.

Article 5  223 similar provision, but requires also that the work or service ‘is carried out under the supervision and control of a public authority’ and that such persons are not ‘hired to or placed at the disposal of private individuals, companies or ­associations’ (Article 2(2)(c)).49 The exception covers all cases of deprivation of liberty, accepted by the ECHR, including supervision of minors, deprivation of liberty of the mentally ill, contagiously ill, alcoholics, drug addicts and vagrants.50 These restrictions can be of relevance in the context of the privatisation of institutions of detention. In accordance with Article 53 (as ILO Convention No 29 has been ratified by all EU Member States) these requirements also apply under Article 5. The ECtHR held that the fact that a prisoner was not paid for the work he did, did not prevent work of this kind from being regarded as being performed ‘in the ordinary course of detention’.51 The same applied to work for which the prisoner was not being affiliated to the old-age pension system or work performed after the prisoner had reached retirement age.52 iv.  Service During an Emergency or Calamity Service during an emergency or calamity threatening the life or well-being of the community is excluded from the scope of forced or compulsory labour. In the case of I v Norway53 the ECtHR stated that it is not forced or compulsory work to impose on young dentists the obligation to travel to the north of the country. In this case a state of emergency threatening the good of society was a catastrophic lack of dentists. It was emphasised that ordinary civic duties should be understood above all as citizens’ obligations to undertake joint efforts in the general interest or for the local community, such as extinguishing fires or similar actions, undertaken to prevent a natural disaster. Such duty was also considered compulsory in the fire service in BadenWürttemberg, stating additionally that the premium paid within this service is compensatory and constitutes a benefit that forms part of normal civic duties. 49 See, eg CEACR general observations concerning Germany in the Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, ILO, 2017) 198. http:// www.ilo.org/public/libdoc/ilo/P/09661/09661(2017-106-1A).pdf. 50 This issue was the subject of decisions of the ECtHR; see extract from 18 June 1971, Nos 2832/66 e t al, De Wilde, Ooms and Versyp v Belgium. 51 See ECtHR, 9 October 2012, No 11332/04, Zhelyazkov v Bulgaria, para 35 and 12 March 2013, No 15303/10, Floroiu v Romania, paras 35–37. Compare, however, with Recommendation Rec(2006)2 of the Committee of Ministers to the Member States of the Council of Europe on the European Prison Rules, adopted on 11 January 2006, which the ECtHR also mentions. 52 See ECtHR (GC), 7 July 2011, No 37452/02, Stummer v Austria, and ECtHR, 9 February 2016, No 10109/14, Meier v Switzerland. It seems, however, that the application of severe sanctions such as solitary confinement for a refusal to work entails work ‘under the menace of penalty’ under ILO Convention No 29. See also the partly dissenting opinion from Judge Tulkens in Stummer v Austria. 53 ECtHR, 18 December 1963, No 1668/62, Yearbook of the European Convention on Human Rights, Vol 6, p 278, MA Nowicki, Europejska Konwencja Praw Człowieka, Wybór Orzecznictwa (Warszawa, Wolters Kluwer, 1999) 57.

224  Niklas Bruun and Joanna Unterschütz All exceptions, despite their diversity, are based on leading concepts of public interest, social solidarity and what is normal in the ordinary state of affairs.54 E. Enforcement Article 4 requires that Member States penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prohibit and punish such acts.55 In the context of trafficking, the ECtHR has taken the position that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking, which includes measures to prevent trafficking and to protect victims, in addition to measures to punish ­traffickers.56 In its opinion, it was clear from the provisions of these two instruments that the Contracting States, including almost all of the Member States of the Council of Europe, have formed the view that only a combination of m ­ easures addressing all three aspects can be effective in the fight against ­trafficking. The obligation to introduce the liability of legal persons for the crime of human trafficking, among other things in order to exploit their work, results from Article 5 Directive 2011/36/EU, which also establishes a catalogue of sanctions to be applied to legal persons; liability of legal persons in relation to participation in trafficking in human beings is mentioned, without prejudging whether it is criminal, civil or administrative; international agreements are also mentioned. This Directive (Article 8) obliges the Member States to refrain from prosecuting or imposing penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to human trafficking. It also contains measures for assistance, support and protection for victims of human trafficking, including children, as well as an obligation to ensure a system of compensation. III. CONCLUSIONS

The field of application of Article 5 is limited by Article 51(1) as EU competence is limited to measures related to trafficking in human beings (including ­trafficking for forced labour and slavery), but measures related only to slavery,

54 ECtHR,

8 July 1994, No 13580/88, Karlheinz Schmidt v Germany, A 291–B, paras 22–23. Rantsev v Cyprus and Russia (n 19) para 285. 56 ibid para 284. 55 See

Article 5  225 servitude and forced labour to a large extent fall under the competence of the Member States. Despite its apparently limited influence Article 5 contains a positive right and is strongly interrelated with other articles of the Charter. Practices described in Article 5 will always infringe a worker’s human dignity (Article 1) and may not qualify as fair working conditions (Article 31(1)). The actual conditions of the work performed may bear traces of discrimination, especially on the grounds of race, colour, ethnic origin and sex (Article 21). Obviously, the rights of children can also be endangered (Article 24). Measures to protect victims of human trafficking may include the right to asylum (Article 18).

226

Title II – Freedoms

228

11 Article 7 – Protection of Private and Family Life FRANK HENDRICKX

Article 7 Everyone has the right to respect for his or her private and family life, home and communications.

EXPLANATIONS The rights guaranteed in Article 7 correspond to those guaranteed by ­Article 8 of the ECHR. To take account of developments in technology the word ‘­correspondence’ has been replaced by ‘communications’. In accordance with Article 52(3), the meaning and scope of this right are the same as those of the corresponding article of the ECHR. Consequently, the limitations which may legitimately be imposed on this right are the same as those allowed by Article 8 of the ECHR: 1.  Everyone has the right to respect for his private and family life, his home and his correspondence. 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.1

1 Explanations relating to the Charter of Fundamental Rights, OJ C303, 14 December 2007, 17–35.

230  Frank Hendrickx I. INTRODUCTION

A.  Context and Main Content The right to privacy2 has come to take an important place in employment relations. It has evolved strongly over time. Due to its broad and open-textured character, it covers a wide range of issues. Originating as a traditional ‘civil’ right, the right to privacy increasingly provides a range of important forms of protection for individuals in the employment context. Although Article 7 CFREU uses the term right to ‘private life’, it can be ­understood as synonymous with the right to ‘privacy’. In 1890, Warren and Brandeis defined the right to privacy as ‘the right to be let alone’.3 In the twentyfirst century, this definition remains relevant. While, under the original approach, the right to privacy could be seen as protection of ‘private life’ or a ‘life away from the public’, it now covers a much wider field, including issues arising in the ‘public’ context and including issues arising in the workplace. The case law of the European Court on Human Rights (ECtHR) demonstrates this wide scope, as will be shown below.4 Approaching the right to privacy in the employment context reveals an interesting tension. An employment relationship implies, as a general rule, a subordinate relationship. This means that employers are, legally speaking, allowed to exercise authority over their workers. Being employed thus implies that one’s personal freedom is partly limited or impaired to the extent that the employer can control and have a say over personal behaviour. Whereas the right to privacy encompasses the ‘right to be let alone’, the employment relationship gives the employer the ‘right not to leave alone’ its workers. Furthermore, in an employment context, more rights and interests are involved than purely those of the employer. Various legitimate interests of colleagues, clients or the wider public may exercise an influence on the right to privacy and limit the exercise of this right by workers. The worker’s right to privacy is therefore qualified by the employment relationship.5 This requires that the opposition of rights be part of the employment privacy discussion and that reconciliation of rights and ­interests is necessary in the employment context.

2 In this chapter, we will not deal with privacy as including the right to personal data protection or the reconciliation of professional life with private or family life, as both these rights will be covered by other contributions, elsewhere in this volume. 3 SD Warren and LD Brandeis, ‘The Right to Privacy’ (1890) 4(5) Harvard Law Review 193–220. 4 M Otto, The Right to Privacy (Oxford and Portland, Hart Publishing, 2016) 87. 5 F Hendrickx, Privacy en arbeidsrecht (Bruges, die Keure, 1999) 47 and 51.

Article 7  231 B.  Relationship to Other Provisions of the Charter i.  Right to Personal Data Protection (Article 8 CFREU) There is an obvious and strong link between the right to privacy as protected by Article 7 CFREU and the right to personal data protection as protected by Article 8 CFREU. As described in the chapter on data protection in this volume, the right to personal data protection is guaranteed through the right to privacy in the case law of the ECtHR. There is thus a strong overlap of protection offered by Articles 7 and 8. A good example of where this becomes clear concerns the case law involving monitoring and surveillance of workers. In its case law, the ECtHR has strongly cross-referred to legal principles governing data protection when assessing monitoring issues, relating to either communications of workers or the use of cameras in the workplace, through the broad lens of the right to privacy. For reasons of discussion and because monitoring issues raise broader concerns of control over human behaviour, monitoring and surveillance issues are dealt with in this chapter. ii.  Freedom of Expression (Article 11 CFREU) and Social Media The relationship between Article 7 (right to private life) and Article 11 (right to freedom of expression) becomes interesting when discussing the influence of social media on the employment relationship. Social media and social networks, such as Facebook, LinkedIn, Twitter or applications such as YouTube, are playing an increasingly important role in our online world. These social media, however, also have an impact in the offline world, not least in the employment context. More and more cases come up whereby workers are subject to disciplinary action, including dismissal, because of what they include on their social media in their ‘own’ time. Sometimes it concerns workers that have expressed (negative) comments about their employers or their business. In other situations, workers express themselves in other ways that put their relationship with their employer in jeopardy. These issues may involve a combination of the right to privacy and the right to freedom of expression. It must be pointed out that not all ‘social media’ cases involve privacy issues. There are cases that rather need to be viewed through the lens of the freedom of expression (Article 11) than through a privacy lens (­Article 7). The division between the approaches is, however, not always clear. The use of social media and their impact on the employment relationship should rather be evaluated over a continuum, using both a privacy and a freedom of expression perspective. This continuum may take shape through the context and circumstances of social media applications. Social media, such as Facebook, involve both a communication aspect and a publication aspect. To the extent that social media have to be viewed as a form of publication of information,

232  Frank Hendrickx including personal opinions and beliefs, freedom of expression is the most relevant perspective. When social media are used within the context of a limited audience and involve personal and confidential networks, the legal protection may come from the right to privacy. This continuum can be seen as follows: Privacy

Expression

Communication

Publication

The notion of ‘reasonable privacy expectations’ may play a role in the discussion. A good example is the Dutch Blokker case,6 in which a worker was dismissed because he posted negative comments on his personal Facebook page, referring to his employer in rude and impolite terms. The worker’s argument that ­Facebook is part of his private sphere was rejected by the Dutch court, as the private character of Facebook was considered to be ‘relative’ and the information can easily become available to the wider public. The worker could thus not have any reasonable expectation of privacy. In cases in which workers make information on social media public, and thus can be considered to have ‘published’ it, the question still arises as to what extent this may have an impact on the employment relationship and whether employers may have any business with it and interfere with the worker’s ‘off duty’ behaviour or conduct. If cases such as these have to be viewed through the lens of ‘publication’ and ‘expression’, the principles of freedom of expression in light of the employment context become relevant. The case law of the ECtHR can be used as guidance in this regard. For example, reference can be made to the Heinisch7 case, in which the ECtHR recognised the right of workers to exercise their right to freedom of expression and their right to express criticism of their employer. However, the ECtHR also referred to a ‘duty of loyalty’ on the part of workers in both public and private sector employment contexts, which implies the right of an employer to protection of its ‘reputation and commercial interests’. C.  Relationship to Other Relevant Instruments i.  Council of Europe Instruments The most important instrument to which Article 7 CFREU is related is the European Convention on Human Rights (ECHR). The Explanations on ­ Article 7 CFREU provide that the rights guaranteed in this article correspond to those guaranteed by Article 8 of the ECHR, which also guarantees the right to respect for private and family life.

6 Court

Arnhem, 19 March 2012, JAR 2012, 97. 21 July 2011, No 28274/08, Heinisch v Germany.

7 ECtHR,

Article 7  233 There is a vast area of case law of the ECtHR with respect to Article 8 ECHR and this will be referred to below when discussing the scope and content of the right to privacy, as guaranteed by Article 7 CFREU. ii.  UN Instruments The United Nations has referred to the right to privacy in its International Bill of Rights. The right to privacy is guaranteed by Article 12 Universal Declaration of Human Rights and Article 17 International Covenant on Civil and Political Rights. II. CONTENT

A.  General Observations It has been pointed out above that the right to privacy is qualified by the employment relation, a context in which the worker’s personal freedom and privacy are exposed almost by definition. This does not imply that the worker does not have a right to privacy. Everyone has the right to privacy, also in the employment context. However, in an (employment) privacy discourse, reasonable privacy expectations have to be taken into consideration. This concept of ‘reasonable privacy expectations’ finds its origin in the US legal system, where it came up under the Fourth Amendment.8 In the reference case of Katz v US,9 the US Supreme Court made privacy protection dependent on the requirement of the existence of reasonable privacy expectations. The idea is used to determine the scope of privacy protection. The US approach may lead to the finding that workers, while under the authority of the employer, cannot automatically claim privacy expectations and the accompanying legal protection. The worker would need to demonstrate that he or she has, or had, reasonable expectations of privacy. Because of this, the literature has argued that the US legal system ‘fails to conceive of the possibility of “private space”, literally or metaphorically, while at work’.10 Reasonable privacy expectations also play a role in the European legal context. But this does not exclude the right to privacy at work. While the ECtHR recognises the notion of reasonable privacy expectations as a way to determine the scope of protection, it has also emphasised that a person’s reasonable privacy expectations are not the only criterion used in determining

8 S Nouwt and BR de Vries, ‘Introduction’ in S Nouwt, BR de Vries and C Prins (eds), Reasonable Expectations of Privacy? (The Hague, TMC Asser Press, 2005) 3. 9 Katz v US, 389 US 347 (1967). 10 MW Finkin, Privacy in Employment Law 2nd edn (Washington DC, 2003) xxix.

234  Frank Hendrickx whether or not Article 8(1) ECHR applies. In PG and JH v UK,11 the ECtHR reasoned that ‘there are a number of elements relevant to a consideration of whether a person’s private life is concerned’ and stated that ‘a person’s reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor’.12 This has been repeated in later case law. To determine the reasonableness of privacy expectations in an employment context, the ECtHR seems to depart from the concrete context and the relevant facts.13 The reasonableness of these expectations thus depends, for example, on whether the worker was informed about the fact that a specific interference with his or her right to privacy was possible, on the presence of specific indications of the possibility of such interference or on the (permanent) nature and the impact of the interference. B.  Field of Application Article 7 CFREU can be seen to protect the right to privacy in a wide sense. To be in line with Article 8 ECHR, according to Article 53(3) CFREU, the notions of private life and family life must be interpreted broadly. Article 8 ECHR covers a wide range of issues and a broad idea of privacy. It is well-known that, in a European context, the right to privacy has been guaranteed, not only in the private life context, but also in the public and professional sphere. Taking the case of PG and JH v UK into account – which has been referred to above – the ECtHR accepted that there is ‘a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”’.14 With regard to the employment context, the ECtHR adopted its well-known view in the case of Niemietz v Germany and held that there appears … to be no reason of principle why this understanding of the notion of  ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.15

11 ECtHR, 25 September 2001, No 44787/98, PG and JH v United Kingdom, [2001] ECHR 546, para 57. 12 ibid. 13 F Raepsaet, ‘Les attentes raisonnables en matière de vie privée’ (2011) 10 Journal des tribunaux du travail 145, 147 and 153. 14 ECtHR, 25 September 2001, No 44787/98, PG and JH v United Kingdom, [2001] ECHR 546, para 56. 15 ECtHR, 16 December 1992, No 13710/88, Niemietz v Germany, Series A, No 251-B para 29.

Article 7  235 Due to the broad scope it provides, workers may rely on the right to privacy on a wide range of issues, as will be shown below.16 C.  Specific Rights A number of specific guarantees have been derived from its protection in case law, about which the ECtHR is most instructive. Also, some staff cases before the European Union courts have delivered some interesting judgments. i.  Protection of the Home The right to privacy includes the protection of the home. This is also confirmed in the wording of Article 7 CFREU, as is the case for Article 8 ECHR. The concept of ‘home’ may be particularly interesting for businesses and organisations, such as employers and trade unions. According to ECtHR case law, the notion of ‘home’ should not be interpreted in a narrow sense and must be seen broadly. It also includes business premises,17 the premises of a ­newspaper18 or a university professor’s office.19 This implies that also employers or trade union organisations would be able to rely on the protection of the right to privacy in cases of interference with their buildings or facilities. ii.  Protection of Personal Integrity A series of discussions concern the conduct of medical examinations, both during employment as well as in the recruitment phase. In such cases the personal integrity of job applicants or workers is involved. Although this notion is not explicitly mentioned in Article 7 CFREU or Article 8 ECHR, the protection of personal integrity is guaranteed by the right to privacy. An interesting illustration comes from the EU staff case law. In X v ­Commission20 the Court of Justice of the EU (CJEU) dealt with an applicant who, with a view to the possibility of becoming employed as a member of the European Commission’s temporary staff, was invited to undergo a medical examination. The applicant underwent a clinical examination, supplemented by biological tests and declined the suggestion of the Medical Service

16 Several elements of Art 8 ECHR are not dealt with here as there are more specific Charter rights, such as unfair dismissal (cf Art 30), or health and safety at the workplace (Art 31). 17 ECtHR, 28 April 2005, No 41604/98, Buck v Germany, para 31; Niemietz v Germany, paras 29–31. 18 ECtHR, 18 April 2013, No 26419/10, Saint-Paul Luxembourg SA v Luxembourg. 19 ECtHR, Commission Decision on admissibility of 3 June 2008, Nos 9676/05, 10744/05 and 41349/06, Steeg and Wenger v Germany. 20 CJEU, 5 October 1994, C-404/92, X v Commission of the European Communities (1994) ECR I-4737.

236  Frank Hendrickx that he should be screened for HIV antibodies (AIDS). Later on, the candidate learned that he was found unfit to become a typist in the European Commission. After some communication between the Commission’s medical service and his own medical doctor he accused the Commission of subjecting him, without his consent, to a dissimulated Aids screening test. According to the European Court, the pre-recruitment examination serves a legitimate interest of the European institutions, but that interest does not justify the carrying out of a test against the will of the person concerned. The right to respect for private life  requires that a person’s refusal be respected in its entirety. Because the appellant expressly refused to undergo an AIDS screening test, that right ­ precluded the administration from carrying out any test liable to point to, or establish, the existence of that illness, in respect of which he had refused ­disclosure. However, the Court also reasoned that if the person concerned, after being properly informed, withholds his consent to a test that the medical officer considers ­necessary in order to evaluate his suitability for the post for which he has applied, the institutions cannot be obliged to take the risk of recruiting him. Medical examinations or medical screening in employment have also been an issue in the case law of the ECtHR. In Madsen v Denmark,21 it was questioned whether the introduction of a random mandatory alcohol and drug test, requiring the workers of a Danish shipping company to provide a urine sample when on duty on board a ship, amounted to an unjustified interference with their right to privacy. According to the company’s policy, workers could expect to undergo such a test without notice at least once a year and failure to comply with the regulations regarding the use or possession of alcohol and drugs on board would constitute a considerable breach of their employment conditions, justifying summary dismissal. Mr Madsen, a passenger assistant, contested the policy not only because the test itself would interfere with his right to privacy, but also because the test would reveal what activities he had been involved in during his free time. The ECtHR interestingly examined more closely what grounds of justification would be available to ground the interference with the right to privacy under Article 8(2) ECHR. It found that the test could be justified as ‘necessary in a democratic society’ for the protection of public safety and the rights of others. It was indeed essential that crew members belonging, when on board, to the safety crew were at all times able to perform functions related to safety on board in a fully adequate way, implying that their mental or physical functioning was not negatively influenced by the consumption of alcohol or the use of drugs. As a result, Mr Madsen’s application was rejected.



21 ECtHR,

7 November 2002, No 58341/00, Madsen v Denmark.

Article 7  237 iii.  Protection of Reputation It is clear that the European Court on Human Rights protects the right to ­reputation under Article 8 ECHR. Cases like this may appear in contexts in which the right to freedom of expression conflicts with the right to protection of one’s reputation.22 Such conflicts may occur, for example, in social media contexts in which employers, workers themselves or clients may violate another one’s right to protection of reputation. The ECtHR has established that when making comments about one’s private life, there are limits to unverified rumours, to the broadcasting of random comments on a person’s daily life23 or to using or relying on false information.24 An interesting example of how employment practices may lead to reputational problems is a case of dismissal, as treated in the Strasbourg case law. The ECtHR reasoned that the dismissal of the applicant from the post of judge affected a wide range of his relationships with other persons, including the relationships of a professional nature. Likewise, it had an impact on his ‘inner circle’ as the loss of job must have had tangible consequences for material well-being of the applicant and his family. Moreover, the reason for the applicant’s dismissal, namely the breach of the judicial oath, suggested that his professional reputation had been affected.25

The Court referred to the fact that Article 8 ECHR deals with the issues of protection of honour and reputation as part of the right to respect for private life.26 In Sipoş v Romania, the management of the Romanian state television published a media statement about the removal of a worker from a programme that she produced and presented. The ECtHR held that there had been a violation of Article 8 ECHR as the guarantees for respect of the worker’s reputation were not sufficiently secured.27 iv.  Right to Private Life and Off-duty Conduct In principle, the right to protection of one’s private and family life implies that individuals enjoy an area of life with which the employer has no concern or business. However, (even) in cases concerning workers’ off-duty conduct, there may be room for discussion, as is shown by the case law of the ECtHR. Sometimes workers are provided with a protected sphere of life in which employers

22 cf S Smet, ‘Freedom of Expression and the Right to Reputation: Human Rights in Conflict’ (2010) 26(1) American University International Law Review 183–236. 23 cf ECtHR, 21 February 2017, No 20996/10, Rubio Dosamantes v Spain; ECtHR, 28 October 2014, No 20531/06, Ion Cârstea v Romania. 24 cf ECtHR, 4 May 2000, No 28341/95, Rotaru v Romania, para 44. 25 ECtHR, 9 January 2013, No 21722/11, Oleksandr Volkov v Ukraine, para 166. 26 With references to ECtHR, 15 November 2007, No 12556/03, Pfeifer v Austria, para 35, and ECtHR, 9 April 2009, No 28070/06, A v Norway, paras 63 and 64. 27 ECtHR, 3 May 2011, No 26125/04, Sipoş v Romania.

238  Frank Hendrickx cannot interfere; sometimes the case law has accepted that the employer’s interest may be legitimate and strong enough to justify an interference. The effect of private life on the employment relation will not be easily accepted. The cases of Lustig-Praen and Beckett v UK28 and Smith and Grady v UK29 concern administrative discharge from the armed forces on the ground of ­homosexual orientation. The ECtHR accepted that the investigations by the military into the applicants’ homosexuality, together with the preparation of a final report for the armed forces on these investigations, constituted a direct interference with their privacy because these investigations included detailed interviews with each of them and with third parties on matters relating to their sexual orientation and practices. Another interesting example concerns the influence of an extramarital relationship on a worker’s functioning. In two cases it resulted in disciplinary action.30 In Obst v Germany, a worker employed by a church confessed ­adultery to his hierarchical supervisor and it resulted in his dismissal. The ECtHR found that the German labour courts had properly weighed the competing interests involved and came to the conclusion that the dismissal did not violate Article 8 ECHR. Not only had the church only acted after Mr Obst had ­voluntarily confessed his adultery, but Mr Obst’s behaviour was also found incompatible with his visible and important role in the church. In Schüth v Germany, the worker, an organist and choirmaster in a ­Catholic parish, was also dismissed for engaging in an extramarital relationship and expecting a child with another woman, thereby violating his obligations of loyalty under the basic Catholic rules for ecclesiastical service. The issue was whether or not an extramarital affair really sufficed to justify a summary dismissal and whether (the acceptance of) such dismissal interfered with the worker’s right to respect for privacy. Indeed, according to the Court, being a broad term, not susceptible to exhaustive definition, the notion of ‘privacy’ must include some aspects of an individual’s physical and social identity, such as the right to establish and develop relations with others, the right to personal development or the right to self-determination.31 Consequently, items such as sexual orientation and sexual life also fall within the personal sphere that is protected by Article 8 ECHR.32 In Schüth v Germany, the Court ruled that the dismissal amounted to a violation of the worker’s right to privacy. Mr Schüth had always kept his extramarital affair quiet, had never criticised the

28 ECtHR, 27 September 1999, Nos 31417/96 and 32377/96, Lustig-Prean and Beckett v United Kingdom, (1999) ECHR 71; (2001) 31 EHRR 23. 29 ECtHR, 27 September 1999, No 33985/96, Smith and Grady v United Kingdom, (1999) ECHR 72; (2000) 29 EHRR 493; (2000) 31 EHRR 24. 30 ECtHR, 23 September 2010, No 425/03, Obst v Germany; ECtHR, 23 September 2010, No 1620/03, Schüth v Germany. 31 ibid, para 53. 32 See also ECtHR (GC), 22 January 2008, No 43546/02, EB v France, (2008) 47 EHRR 21, para 43.

Article 7  239 ­ atholic Church’s rules and, as an organist and choirmaster, had very few C other job opportunities, so that the damage caused by his summary dismissal was not in proportion to the protection of the Church’s reputation. Another relevant reference related to off-duty-conduct is Pay v UK.33 The applicant was a probation officer who treated sex offenders; he also engaged in BDSM activities in his leisure time. He was subject to disciplinary action as his behaviour was seen by the supervising authorities as incompatible with his role as a probation officer and the reputation of the service. The ECtHR held that ‘the dismissal of the applicant from his employment for engaging in such activities may be said to amount to an interference with his rights’ under Article 8 ECHR. v.  Right to Professional Life The broad interpretation of the scope of protection of the right to privacy has led to the recognition of a ‘right to professional life’ under Article 8 ECHR. In its case law, the ECtHR has accepted that measures affecting employment opportunities of an individual (eg, in cases of worker selection, or in disciplinary action) may amount to an interference with the right to privacy. According to the ECtHR’s case law, the ability to engage in work is considered to be an important part of one’s privacy. In the case of Sidabras and Dziautas v Lithuania,34 the ECtHR linked the right to privacy to the dignity of a (candidate) worker. The Court concluded that the Lithuanian Act, which temporarily prohibited former KGB officers from working as public officials or civil servants, or from performing a job requiring the carrying of a weapon – as a consequence of which they were unable to find a job in various branches of the private sector – amounted to a violation of the right to privacy. The ECtHR considered that ‘a far-reaching ban on taking up private-sector employment does affect private life’.35 Moreover, the Court justified its broad interpretation of ‘private life’ by associating it with the right to work.36 It thus emphasised the close connection between the (civil) right to privacy and the (social) right to work. Also, the case of Pay v UK,37 mentioned above, reflects this approach. The ECtHR held that the dismissal of

33 ECtHR, Decision on admissibility of 16 September 2008, No 32792/05, Pay v United Kingdom, (2009) 48 EHRR SE2; [2009] IRLR 139. Although this case concerns a decision on admissibility, it remains relevant for its principles. 34 ECtHR, Decision on admissibility of 1 July 2003, Nos 55480/00 and 59330/00, Sidabras and Dziautas v Lithuania, ECHR 2004-VIII (2004) 42 EHRR 104. 35 ibid, para 47. 36 ibid, paras 31–32. 37 ECtHR, Decision on admissibility of 16 September 2008, No 32792/05, Pay v United Kingdom, (2009) 48 EHRR SE2; [2009] IRLR 139. Although this case concerns a decision on admissibility, it remains relevant for its principles.

240  Frank Hendrickx an ­individual from his employment for engaging in private (life) activities may be said to amount to an interference with his rights under Article 8 ECHR. This wide approach follows the ECtHR’s view in Niemietz v Germany that there is no reason of principle why this understanding of the notion of ‘private life’ should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world.38

In its recent case law, the Court has emphasised that ‘Article 8 thus guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity’.39 The ECtHR confirmed that ‘there is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”, professional life being part of it’.40 In other words, the right to a professional life may be protected within the scope of Article 8 ECHR. Because Article 7 CFREU has to be interpreted in line with Article 8 ECHR, there is no reason to exclude this broad interpretation from Article 7 CFREU. vi.  Monitoring of Communication According to Article 52(3) CFREU, Article 7 has to be aligned with Article 8 ECHR as a minimum level of protection. The Explanations state that ‘to take account of developments in technology the word “correspondence” has been replaced by “communications”’. This is an interesting and justified (re-)phrasing as the notion of ‘communication’ is not only wider but also has more potential in light of new technological developments. This aspect of privacy protection is highly relevant in the case of electronic monitoring and surveillance. With regard to the monitoring of telephone calls, the ECtHR has held a broad view about the protection offered by the right to  privacy, which includes ‘correspondence’ and communication. The ECtHR has held that telephone calls made from home as well as from business premises may be covered by the notions of ‘private life’ and ‘correspondence’ within the meaning of Article 8 ECHR.41 The first major reference in the area of worker telephone surveillance is the case of Halford v UK,42 in which both home and office telephone calls were

38 ECtHR, 16 December 1992, No 13710/88, Niemietz v Germany, Series A, No 251-B, para 29. 39 ECtHR, 28 November 2017, No 70838/13, Antovic and Mirkov v Montenegro, para 41. 40 ibid, para 42. 41 Cf ECtHR, 6 September 1978, No 5029/71, Klass and others v Germany, Series A, No 28 (1979–80) 2 EHRR 214, para 41; ECtHR, 2 August 1984, No 8691/79, Malone v United Kingdom, Series A, No 82 (1984) 7 EHRR 14, para 64. 42 ECtHR, 25 June 1997, No 20605/92, Halford v United Kingdom.

Article 7  241 intercepted. Also with regard to the calls conducted on the office telephone, the ECtHR ruled that these fell within the scope of Article 8 ECHR. With regard to the legitimacy of the monitoring, the notion of reasonable privacy expectations played a role. The step to e-mail and internet-monitoring at the workplace was taken in the case of Copland v UK,43 where telephone calls, as well as e-mails and internet usage, were examined by the Court. Also here the notion of reasonable privacy expectations played a role. The ECtHR considered that Ms Copland, who worked as a personal assistant at a public school,44 had been given no warning of the monitoring and had a reasonable privacy expectation with regard to her telephone calls, her e-mail and internet usage.45 It is interesting that the ECtHR dealt with the question of what constitutes ‘communication’. Recalling Malone v UK,46 the Court regarded information relating to the data and length of telephone conversations and numbers dialled to be an ‘integral element of the communications made by telephone’, falling within the protective scope of Article 8(1) ECHR, so that storage and use thereof amounts to an interference with the right to respect for private life and correspondence. This is, according to the Court, irrespective of the question of whether these data were disclosed or used against the worker in disciplinary or other proceedings.47 The right of employers to monitor workers and their communications, also electronically, has not been disregarded by the ECtHR. The Court normally opts for a broad interpretation of the notion of privacy or communication under Article 8(1) ECHR and would require employers to justify the monitoring under the different principles set by Article 8(2) ECHR. A recent and widely discussed case is Barbulescu, in which the ECtHR highlighted various elements of assessment of a possible violation of Article 8 ECHR. In this case, the ECtHR also acknowledges that the employer has a legitimate interest in ensuring the smooth running of the company, and that this can be done by establishing mechanisms for checking that its workers are performing their professional duties adequately and with the necessary diligence.48

43 ECtHR, Decision on admissibility of 7 March 2006, No 62617/00, Copland v United Kingdom, [2007] ECHR 253. 44 The case of Copland v UK thus concerns a direct violation of Article 8 ECHR by a public authority – here the public school – acting as Copland’s (public) employer. 45 See also ECtHR, 25 June 1997, No 20605/92, Halford v United Kingdom, para 45. 46 ECtHR, 2 August 1984, No 8691/79, Malone v United Kingdom, para 84. See also ECtHR (GC), 16 February 2000, No 27052/95, Amann v Switzerland, ECHR 2000-II [2000] ECHR 87, para 65. 47 As there was no domestic law regulating the monitoring of information relating to an worker’s telephone, e-mail and internet usage at the relevant time, the ECtHR concluded that this interference was not ‘in accordance with the law’ as required by Art 8(2) ECHR, so that Ms Copland’s right to privacy had been violated. 48 Para 127.

242  Frank Hendrickx In Barbulescu, however, the ECtHR ‘considers that proportionality and procedural guarantees against arbitrariness are essential’.49 The ECtHR gives, then, a number of principles that need to be taken into account when assessing whether the right to privacy has been violated:50 (i) Prior notification: whether the worker has been informed of the possibility that the employer might take measures to monitor, as well as of the implementation of such measures. The ECtHR points out that, in practice, workers may be notified in various ways depending on the particular circumstances of each case. But the Court is clear that notification should normally be clear about the nature of the monitoring and should be given in advance. (ii) The extent of the monitoring and the degree of intrusion: the ECtHR makes a distinction, in this regard between monitoring of the ‘flow of communications’ and of their content. It held that ‘whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results’. The same applies, according to the Court, to the spatial limits to the monitoring. (iii) Whether the employer has provided legitimate reasons to justify the monitoring (and accessing the content of communication). The Court states that because ‘monitoring of the content of communications is by nature a distinctly more invasive method, it requires weightier justification’. (iv) Whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the worker’s communications. (v) The consequences of the monitoring for the worker subjected to it and the use made by the employer of the results of the monitoring operation, in particular whether the results were used to achieve the declared aim of the measure. (vi) Whether the worker had been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature. According to the Court, ‘such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the worker has been notified in advance of that eventuality’. vii.  Camera Surveillance The ECtHR has been looking at monitoring issues not only through the lens of the right to data protection, but also more generally under its broad

49 Para 50 Para

121. 121.

Article 7  243 i­nterpretation of the right to privacy recognised by Article 8 ECHR. In Köpke  v Germany,51 it was found that covert video surveillance of a shop assistant and the recording and uncontrolled processing of the personal data interfered with the worker’s right to respect for her private life. The ECtHR also used the data protection concept in guaranteeing protection with regard to location data tracking.52 The ECtHR dealt with camera surveillance in two recent cases. The first case is Antovic and Mirkov v Montenegro.53 The Dean of the School of Mathematics of the University of Montenegro installed video surveillance in lecture amphitheatres, specifying that the aim of the measure was to ensure the safety of property and people, including students, and the surveillance of teaching. The ECtHR examined whether the applicant professors had a reasonable expectation that their privacy would be respected and protected. Referring to the case of Barbulescu, however, it stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor. In Antovic and Mirkov, the ECtHR provided an interestingly broad interpretation of the notion of private life in the context of monitoring at work. The Court noted that university amphitheatres are teachers’ workplaces. It is where they not only teach students, but also interact with them, thus developing mutual relations and constructing their social identity. It has already been held that covert video surveillance of a worker at his or her workplace must be considered, as such, to be a considerable intrusion into the worker’s private life. It entails the recorded and reproducible documentation of a person’s conduct at his or her workplace, which the worker, being obliged under the employment contract to perform the work in that place, cannot evade (with reference to Köpke). There is no reason for the Court to depart from that finding even where it concerns cases of non‑covert video surveillance of a worker at his or her workplace. Furthermore, the Court has also held that even where the employer’s regulations in respect of the workers’ private social life in the workplace are restrictive they cannot reduce it to zero. Respect for private life, according to the Court, continues to exist, even if it might be restricted. The ECtHR observed that, on the basis of domestic law, public institutions like universities can carry out video surveillance of areas of access to official premises, as well as in official or business premises, but only if the aims provided for by that legislation – notably the safety of people or property or the protection  of confidential data – cannot be achieved in any other way. The Court observes that video surveillance was introduced in the present case to ensure the safety of property and people, including students, and for the ­surveillance



51 ECtHR,

Decision on admissibility of 5 October 2010, No 420/07, Köpke v Germany. 2 September 2010, No 35623/05, Uzun v Germany. 53 ECtHR, 28 November 2017, No 70838/13, Antovic and Mirkov v Montenegro. 52 ECtHR,

244  Frank Hendrickx of teaching. It noted that one of those aims – notably the surveillance of teaching  – is not provided for by the law as a ground for video surveillance. Furthermore, the domestic competent agency held that there was no evidence that either property or people had been in jeopardy. The Court concluded that the interference in question was not in accordance with the law, a fact that sufficed to constitute a violation of Article 8. The second case is López Ribalda and Others v Spain.54 Five workers were working as cashiers for a Spanish family-owned supermarket chain. When the employer noticed significant irregularities between the supermarket stock levels  and what was actually sold on a daily basis the employer installed surveillance cameras, both visible and hidden. The purpose of the visible ­ cameras was to record possible customer thefts and they were pointed toward the entrances and exits of the supermarket. The purpose of the hidden cameras was to record and control possible worker thefts and they were zoomed in on the  checkout counters, which covered the area behind the cash desk. The company gave its workers prior notice of the installation of the visible cameras. However, neither they nor the company’s staff committee were informed of the hidden cameras. About two weeks later, all the workers suspected of theft were called in to individual meetings. During those meetings the applicants admitted their involvement in the thefts in the presence of the union representative and the company’s legal representative. The workers were dismissed on disciplinary grounds as they had been caught on video helping co-workers and customers to steal items and stealing themselves. The workers considered that the covert video surveillance of their place of work had seriously interfered with their right to privacy and brought the case to the ECtHR. The Court observed that the covert video surveillance of a worker at his or her workplace must be considered, as such, as a considerable intrusion into his or her private life. The Court repeated (see above Antovic and Mirkov) that a worker cannot evade recording of his or her conduct in the workplace, being obliged under the employment contract to perform the work in that place. The ECtHR did not share the domestic courts’ view on the proportionality of the measures adopted by the employer with the legitimate aim of protecting the employer’s interest in the protection of its property rights. The ECtHR found that the covert video surveillance was not lawful and thus violated Article 8 ECHR. The Court took into account the fact that the video surveillance took place over a prolonged period and did not comply with the requirements stipulated in the applicable data protection act, in particular, with the obligation to previously, explicitly, precisely and unambiguously inform all persons concerned about the existence and the particular characteristics of a (­monitoring) system collecting personal data. The Court observed that the

54 ECtHR, 9 January 2018, Nos 1874/13 and 8567/13, López Ribalda and Others v Spain (case pending before the Grand Chamber).

Article 7  245 rights of the employer could have been safeguarded, at least to a degree, by other means, notably by previously informing the applicants, even in a general manner, of the installation of a system of video surveillance and providing them with the information prescribed in the data protection legislation. The Court accepted that the applicants had suffered non-pecuniary damages and awarded each of the five applicants a sum of 4,000 euros as compensation for these non-pecuniary damages. D. Limitations The right to privacy is not absolute. Above, it has been indicated that limitations on the right to privacy may result from the specific context of an employment relation. It may involve different opposing rights and interests, including those of the employer, colleagues, clients or the wider public. Self-evidently, the limitation cannot be justified purely on the basis of opposing legitimate rights and interests, but should also be in conformity with the principle of ­proportionality. In other words, the conditions of limitations mentioned under Article 8(2) ECHR will be relevant. In accordance with Article 52(3), the limitations that may legitimately be imposed on the right to privacy resulting from Article 7 CFREU are the same as those of the corresponding Article 8 ECHR.55 ECtHR case law in employment matters is instructive with regard to possible opposing rights and interests that could limit workers’ right to privacy. In an employment context, the right to privacy is often applied horizontally and, in many instances, the legitimate reasons for interfering with the right to privacy would thus come from private employers and not from public authorities directly. Reasons for limiting the right to privacy mentioned in Article 8(2) ECHR are not always easily applicable in an employment context, such as ‘national security’. But there is a broadly accepted ground for interference, which is ‘the protection of the rights and freedoms of others’. This may be seen as an open-ended ground for justifying interference with the right to privacy in the interest of private parties,56 including those of employers, colleagues, clients and so on, in so far as these are protected as ‘rights and freedoms’. Nevertheless, under Article 8(2) ECHR not every reference to (a company’s or  employer’s) purely commercial or financial interests will be endorsed. In Hatton and others v UK,57 for example, a mere reference to economic interests, which could be a standard employer defence, was considered to be an insufficient justification for interfering with the right to private life. Employers,

55 cf Explanations relating to the Charter of Fundamental Rights, OJ C303, 14 December 2007, 17–35. 56 RCA White and C Overy, The European Convention on Human Rights (Oxford, Oxford University Press, 2010) 323. 57 ECtHR, 2 April 2007, No 3602/77, Hatton and others v United Kingdom.

246  Frank Hendrickx as a consequence, might need to come up with more specific counterbalancing interests. The case of Wretlund v Sweden,58 however, shows that the employer’s entitlement to exercise managerial authority may be protected as a legitimate aim under Article 8(2) ECHR. The case concerned an office cleaner at a nuclear plant who challenged the company’s drug policy programme, involving the taking of urine samples from workers. The aim of the tests was to detect the use of both drugs and alcohol, but the drug part of the tests concerned only the presence of cannabis. The ECtHR stated that ‘the employer’s right to manage and organise the work … constitutes a general legal principle’ and that ‘according to the Labour Court’s case-law, the employer may have a right to carry out control measures as part of the right to manage and organise the work’. Here, the ECtHR clearly distinguished between the rights of the employer and the requirements of public safety. It considered that ‘the measure in question pursued legitimate aims under Article 8, para 2, including “public safety” and “the protection of the rights and freedoms of others”’. It may thus be concluded that the protection system of Article 8 ECHR does not preclude that recognised rights and freedoms that are specific in an employment context be taken into account. Moreover, apart from managerial prerogatives, the employment relationship implies the co-existence of rights and interests of other workers (colleagues) and third parties (customers, society at large).59 E. Enforcement Judicial protection is an important aspect of enforcement of the right to privacy in an employment context.60 However, in the practice of employment law, two specific instruments may be mentioned. In the first place, reference can be made to unilateral instruments. In many cases, employers use internal rules and policies pertaining to the performance of work and these may include rules involving the worker’s privacy or private life, for example when referring to off-duty conduct or monitoring and surveillance. These internal rules may be established through personnel handbooks, guidelines, codes or written instructions. Internal rules or instructions may result from an obligation to draw up work regulations in the company. But very often these internal rules arise from the employer’s right to exercise authority and direct the workplace. This may give the impression that these documents only serve the interest of the employer. However, that view would be too narrow. Respect for the right to privacy requires not only a legitimate aim and respect

58 ECtHR, Decision on admissibility of 9 March 2004, No 46210/99, Wretlund v Sweden. 59 ECtHR, 7 November 2002, No 58341/00, Madsen v Denmark. 60 Reference can, however, be made to the general chapters in Part I of this volume and the discussion of Art 47 CFREU in Part II.

Article 7  247 for the proportionality principle, but also that limitations and interference are based on clear and accessible norms that avoid arbitrariness and abuse by anyone envisaging interference with the right to privacy. The ECtHR’s position in the case of Barbulescu, referred to above, is a good illustration. According to the Court, in the context of monitoring of communications, the employer should draw up clear rules giving procedural guarantees to workers as ‘procedural guarantees against arbitrariness are essential’.61 Also in the case of Antovic and Mirkov – see above – the employer could have a legitimate aim in video monitoring. However, the ECtHR referred to the ‘obligation to previously, explicitly, precisely and unambiguously inform’ the workers concerned with all aspects of the monitoring. In other words, clear and accessible rules are very often a condition for acceptable interference, but they also must be seen as important preventive instruments in the enforcement chain. This brings us, second, to negotiated instruments. It would seem proper – and perhaps obligatory given Article 27 and Article 28 CFREU – to involve workers in the drafting of internal rules or policies with regard to privacyrelated issues. This may happen through existing worker involvement mechanisms established within national industrial relations. It may also be a collective bargaining issue for employers and trade unions. For example, in Belgium national collective agreements have been concluded about workplace ­monitoring.62 While collective agreements may lay down substantive or procedural conditions for interference with privacy, it is obvious that those rules cannot preclude workers from always additionally being able to rely on their individual right to privacy. The existing (European) privacy case law has not gone so far as to oblige employers to engage in negotiations with workers or their representatives when drafting, for example, internet or e-mail monitoring policies. At least it would appear that there is a right to information and consultation relating to ‘work organisation’, which might be substantially affected due to measures involving workers’ privacy during the performance of work (as in the case of new surveillance techniques). Overall, a negotiated instrument may give a much stronger legal basis for employers to interfere with workers’ right to privacy. III. CONCLUSIONS

The right to ‘private life’ provides a broad span of protection for workers. It is well accepted in ECtHR case law that this right not only includes protection

61 cf para 121. 62 Collective agreement 68 of 16 June 1998 concerning camera surveillance in the workplace, ratified by Royal Decree of 20 September 1998, Moniteur Belge of 2 October 1998; Collective agreement 81 of 26 April 2002 with regard to the monitoring of electronic online-communication data, ratified by Royal Decree of 12 June 2002, Moniteur Belge of 29 June 2002.

248  Frank Hendrickx of the ‘life away from the public’. The right to private life, synonymous with the right to privacy, also protects individuals in the public sphere and in the workplace. Due to the fact that a broad view of the right to privacy is adopted, including ‘activities of a professional or business nature’ and even ‘private social life’ – meaning ‘the possibility for the individual to develop his or her social identity’ – this right has a strong pull factor for workers’ rights. The right to private life, or privacy, must also be understood as playing out in forms of freedom and self-determination. This builds up a tension in the employment relationship, as the right of the employer to exercise authority and control may stand in confrontation with the right to privacy. To a certain extent, the exercise of the right to privacy is automatically reduced in an employment relationship, but this does not limit the starting point that ‘everyone’ has the right to privacy, also workers, and that limitations need to be justified by accepted opposing rights and interests. In an (employment) privacy discourse, reasonable privacy expectations have to be taken into consideration. While this notion provides a way to determine the reach of privacy protection, the ECtHR has emphasised that a person’s reasonable privacy expectations are not the only criterion used in determining whether or not Article 8(1) ECHR applies. It would be necessary to determine the reasonableness of privacy expectations from the concrete context and the relevant facts. Crucial in the privacy debate is that the recognition of the worker’s right to privacy requires the adoption of a fundamental rights-based approach to employment-related cases. This necessitates the application of the appropriate protection principles. Article 8 ECHR influences the balance of rights and interests in employment cases, suggesting that such a balance must necessarily be organised along the lines of Article 8(2) ECHR and implying that interference with the worker’s privacy should be assessed on the basis of the principles of legality, finality and proportionality. Workers can, in this context, raise a privacy claim against their employer on a stronger basis compared with general employment law-related balancing of interests.

12 Article 8 – Protection of Personal Data FRANK HENDRICKX

Article 8 Protection of personal data 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent­ authority.

EXPLANATIONS This Article is based on Article 286 of the Treaty establishing the European ­Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p 31), as well as on­ Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.1

1 Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), OJ C 303, 14.12.2007, 17–35.

250  Frank Hendrickx I. INTRODUCTION

A.  Context and Main Content The right to data protection is becoming increasingly relevant in the employment context. This is an area that involves the processing of large amounts of personal data. Employers are the main data processors or data controllers. They collect and process the personal data of staff members and, often, their family members, for reasons of identification and personnel administration purposes. But, of course, information needs to go much further. In the recruitment process, information on education, professional experience and qualifications, broader personal interests, personal ambitions or psychological profile are not exceptional. During the employment process, wage administration, working time information, data on functioning and performance, monitoring and evaluation data, personal preferences in the employer’s cafeteria plan and so on, are all seen as possibly relevant (personal) data. Some information may be very sensitive. For example, information on the employee’s health situation may be required under health and safety obligations or due to contractual rights and obligations. It seems that in the human resources environment, or broader employment context, personal data processing follows an almost natural logic. The most important development seems, however, to come from the growing digitalisation of work. The information needs and exchange of data are not the only issues for discussion in light of the right to data protection. Technological developments make data collection and processing much easier and faster than ever before. With a simple Google search, employers – or future employers – can collect the personal data of (candidate) employees. Technology is also used to monitor employees, for example through software or video surveillance. New technologies have been introduced in the modern workplace, both as tools for facilitating work and work organisation. Think about internet, e-mail, location tracking or GPS systems, recording systems, electronic badges, computer s­ oftware following the work flow. All these techniques are at the same time personal data collecting and processing features and potential or actual monitoring tools. Furthermore, intelligent systems are on the rise, with algorithms, big data, the internet of things and profiling becoming increasingly influential factors in our world of work. The digital work environment can be seen to deliver great potential and new opportunities for professional cooperation and for shaping the modern work relationship. But, in light of this, the right to personal data protection, as provided for in Article 8 CFREU, is also a crucial legal aspect of the digital agenda and perhaps to be seen as one of the most modern, perhaps most crucial, rights for workers.

Article 8  251 B.  Relationship to Other Provisions of the Charter The right to personal data protection is closely related to various provisions of the CFREU. This can be seen in two main ways. First, some of the CFREU’s other provisions reinforce the protection offered by Article 8 CFREU, as is the case with the right to privacy recognised in Article 7 CFREU, or the right not to be discriminated against in Article 21 CFREU. Second, the right to personal data protection may be confronted with the other provisions of CFREU. The right to personal data protection is not absolute and may have to be balanced out against other CFREU rights, such as the right to information and expression, or the freedom to conduct a business. i.  Right to Private and Family Life (Article 7 CFREU) There is a strong (and reinforcing) overlap between Article 8 and Article 7 CFREU. According to Article 7 CFREU, everyone has the right to respect for his or her private and family life, home and communications. Many issues that fall under the right to personal data protection also fall under the protection of Article 7 CFREU. This can be shown by the case law of the ECtHR. In several instances, the ECtHR has ruled on data protection under the concept of the right to privacy as protected in Article 8 ECHR. The Court ruled that the storing of data related to an individual’s ‘private life’ falls within the application of Article 8 ECHR.2 However, the ECtHR does not limit the right to data protection to ‘private’ information in the strict sense. It uses a broad interpretation by referring to the Council of Europe’s Convention on Personal Data of 28 January 1981.3 For example, the fact that information is in the public domain (and not ‘private’) does not necessarily remove it from the protection of Article 8 ECHR.4 For the ECtHR, where there is a compilation of data on a particular individual, the processing or use of personal data or the publication of the material concerned in a manner or degree beyond that normally foreseeable, gives rise to private life considerations. The ECtHR has stated quite clearly that ‘the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention’. Article 8 of the Convention, according to the ECtHR, thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed 2 See ECtHR, 26 March 1987, Leander v Sweden, Series A No 116, p 22, § 48. 3 ECtHR (GC), 16 February 2000, No 27798/95, Amann v Switzerland, para 65. 4 ECtHR (GC), 27 June 2017, Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland, para 134.

252  Frank Hendrickx and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged.5

ii.  Freedom of Expression and Information (Article 11 CFREU) Article 11 CFREU includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. With regard to data protection, the right to information and free expression is highly relevant. Personal data protection rights and obligations place limits on the free use and free flow of information in our societies. Individuals, organisations or the broader public may have a claim to the disclosure of information. This can be based on the right to information. So, just as the right to data protection is a limitation on the right to information, this latter right may constitute a limitation to the right to data protection. The recognition of the right to information as a basis to obtain access to personal data was confirmed by the ECtHR in Magyar Helsinki Bizottság v Hungary6 where it concerned a request by an NGO to conduct a survey on the public defenders system in Hungary, for reasons of which it needed information about recurrent appointments of lawyers in law suits. Article 11 CFREU expressly refers to the freedom and pluralism of the media. The privacy versus the media discussion is well shown in Von ­Hannover v Germany (No 2), in which Princess Caroline of Monaco unsuccessfully invoked the right to privacy to stop the publication of a photograph taken of her and her husband during a holiday.7 But the ECtHR has issued different judgments beyond that and balanced the right to data protection with the right to freedom of expression and information. In Axel Springer AG v Germany, the ECtHR held that a ban imposed by a court on a newspaper concerning the publication of an article on the arrest and conviction of an actor violated A ­ rticle 10 ECHR. The ECtHR referred to the balancing of the right to freedom of expression with the right to respect for private life.8 In Biriuk v Lithuania, a newspaper mentioned that a person was HIV positive, but here the ECtHR held that the protection of personal data, including medical data, was of fundamental importance to a person’s enjoyment of his or her right under Article 8 ECHR and found a violation.9 iii.  Freedom to Conduct a Business (Article 16 CFREU) As personal data protection rights and obligations place limits on the free use of these data, it could also be seen as limiting, from an employer’s or business perspective, the freedom to conduct a business as provided in Article 16 CFREU.

5 Para

138. (GC), 8 November 2016, No 18030/11, Magyar Helsinki Bizottság v Hungary. 7 ECtHR (GC), 7 February 2012, Nos 40660/08 and 60641/08, Von Hannover v Germany (No 2). 8 ECtHR (GC), 7 February 2012, No 39954/08, Axel Springer AG v Germany. 9 ECtHR, 25 November 2008, No 23373/03, Biriuk v Lithuania. 6 ECtHR

Article 8  253 There are, potentially, a wide range of cases in the employment context where the right to personal data versus the freedom to conduct a business could become a matter for discussion. In the fourth preamble of the EU’s General Data Protection Regulation, this relationship is referred to explicitly. iv.  Non-discrimination (Article 21 CFREU) The right to data protection is also related to the right to be protected against discrimination. In a digital and online environment, data and information collection and further processing may imply the use of search engines, keywords and artificially intelligent search software. This may cause a p ­ roblem of ­discriminatory selection of information or discriminatory profiling. For example, if human resources services revert to online recruitment methods, the problem of discrimination may become a real legal issue. C.  Relationship to Other Relevant Instruments Different international organisations have addressed the right to data protection. For the European Union, the most important document is the General Data Protection Regulation (GDPR). The GDPR is the successor of the EU’s 1995 Data Protection Directive. However, the EU is not the only institution that has adopted data protection rights or principles. The Council of Europe, the OECD, the UN and the ILO have also taken initiatives in this area. Due to the need to give more guidance in this regard, data protection in the employment relationship has received ­considerable guidance. i.  EU Instruments a.  General Data Protection Legislation With the adoption of the Data Protection Directive 95/46/EC on 24 October 1995,10 the EU created a major legal instrument on the subject. The scope of application was wide and concerned any operation or set of operations performed upon personal data (‘processing’), including collection, storage, disclosure, and so on. Directive 95/46/EC was designed to facilitate the free flow of personal data, as well as to provide for a high level of protection, by harmonising the law within the EU in this area.11

10 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ 23 November 1995, L281/31. 11 cf Recitals 7 to 10 Directive 95/45/EC.

254  Frank Hendrickx In 2012, however, the European Commission took the initiative to reform the data protection legislation. Taking into account new technological developments and to make sure that individuals are fully informed about what happens to their personal data and to enable them to exercise their rights more effectively,12 legal reform was considered necessary. This led to the adoption of the ‘General Data Protection Regulation’, known as the GDPR, on 27 April 2016.13 The regulation is applicable as from 25 May 2018 and replaces the 1995 Directive. It will also override the national laws in the member states that i­mplemented the 1995 Directive. The new GDPR is, furthermore, complemented by a new directive.14 b.  Data Protection in the Employment Context Although the 1995 European data protection directive was applicable in the employment context, the EU undertook some attempts at a legislative initiative in the area of employment data protection. After some comparative studies,15 the European Commission initiated a consultation process with the social partners under the Treaty’s social policy title. The initiative ultimately did not succeed.16 Under the (former) European Data Protection Directive, the ‘Data Protection Working Party’, established under the 1995 Directive, adopted some guidance on data protection in the employment context. The Working Party17 adopted Opinion 8/2001 of 13 September 2001 on the processing of personal data in the employment context.18 Another instrument is the EU Working Document of 29 May 2002 on workplace communications.19 On 8 June 2017, the Working Party issued Opinion 2/2017 on data processing at work. This opinion (further referred to as WP Opinion 2/2017) made a new assessment of the issue ‘by outlining the risks posed by new technologies and

12 COM/2012/09 final. 13 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119, 4.5.2016, pp 1–88. 14 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, OJ L 119, 4.5.2016, pp 89–131. 15 See the studies by M Freedland and F Hendrickx: http://ec.europa.eu/social/main.jsp?catId=708. 16 See http://ec.europa.eu/social/main.jsp?catId=708. 17 The Working Party is an advisory group composed of representatives of the data protection authorities of the Member States, which acts independently and has the task, inter alia, of examining any question covering the application of the national measures adopted under the Data Protection Directive in order to contribute to the uniform application of such measures. 18 Opinion 8/2001 of 13 September 2001 on the processing of personal data in the employment context, 5062/01/EN/Final, WP 48, 28p. 19 Data Protection Working Party, Working Document on the Surveillance of Electronic ­Communications in the Workplace, 29 May 2002, 5401/01/EN/final, 35p.

Article 8  255 undertaking a proportionality assessment of a number of scenarios in which they could be deployed’. The opinion is based on the 1995 Data Protection Directive, but already looks further and takes also the GDPR into account.20 Under the GDPR and its new governance model, the role of the Working Party is replaced by the ‘European Data Protection Board’. ii.  Council of Europe Instruments The Council of Europe adopted a specific Convention with regard to personal data protection on 28 January 1981.21 It was the concern of the Member States of the Council of Europe to bring more unity in the national legal systems and to protect human rights on a higher level throughout Europe.22 The Convention defines a number of principles for the fair and lawful collection and use of data. The desirability of adapting these data protection principles to the particular requirements of the employment sector led to the adoption of Recommendation No R(89)2 on the Protection of Personal Data Used for Employment Purposes. This Recommendation was adopted by the Committee of ­Ministers on 18 ­January 1989 at the 423rd meeting of the Ministers Deputies. On 1 April 2015, the Committee of Ministers adopted a new Recommendation on the processing of personal data in the employment context (CM/Rec(2015)5) at the 1224th meeting of the Ministers’ Deputies.23 This revised recommendation was motivated due to ‘the changes which have occurred internationally in the employment sector and related activities, notably due to the increased use of information and communication technologies (ICTs) and the globalisation of employment and services’.24 iii.  ILO Instruments Due to the need to develop data protection principles that specifically address the use of workers’ personal data, the ILO developed a Code of Practice. The ILO Code of Practice concerning the protection of workers’ personal data was drafted to this end and adopted by a Meeting of Experts on Workers’ Privacy of the ILO in 1996.25 The Preamble of the Code points out that the purpose is to provide guidance on the protection of workers’ personal data. It has not been adopted as an ILO Convention or a Recommendation and does not have binding force. It is not designed to replace national laws, regulations or ­international 20 See: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=50083. 21 Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data, Strasbourg, 28 January 1981, ETS No 108. 22 It has been, moreover, ratified by countries outside the Council of Europe. See: https://www.coe. int/en/web/conventions/full-list/-/conventions/treaty/108/signatures?p_auth=mScbc290. 23 https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805c3f7a. 24 See the preamble of Recommendation CM/Rec(2015)5. 25 ILO, Protection of workers’ personal data, An ILO code of practice (ILO, Geneva, 1997) 47.

256  Frank Hendrickx labour standards or other accepted standards. It should be used in the development of legislation, regulations, collective bargaining agreements, work regulations, policies and other practical measures. Some general principles outlined in the Code of Practice are similar to those found in other instruments. Still, particular specifications are made with regard to the employment relationship. For example, it is stated that the mere fact that an employment contract is being considered or has already been concluded does not entitle an employer to gather any information that he or she is interested in. The collection of personal data must be seen as an exception which needs to be justified.26 iv.  UN Instruments The United Nations does not have a specific standard with regard to data protection, although it follows the subject very closely and has taken various initiatives. On 18 December 2013 the UN’s General Assembly adopted resolution No 68/167 on the right to privacy in the digital age,27 in which it expressed its concern about the evolution of technology making possible surveillance, interception and data collection, which may violate or abuse human rights, in particular the right to privacy, as set out in article 12 of the Universal Declaration of Human Rights and article 17 of the International Covenant on Civil and Political Rights.

Another resolution followed a year later. On 18 December 2014 the General Assembly adopted Resolution No 69/166 on the right to privacy in the digital age,28 encouraging the Human Rights Council to remain apprised of the debate. On 26 March 2015 the Human Rights Council adopted Resolution No 28/16 on this topic,29 in which it decided to appoint, for a period of three years, a special rapporteur on the right to privacy, in order to gather relevant information, including on international and national frameworks, national practices and experience and to study trends, developments and challenges in relation to the right to privacy and to make recommendations. v. OECD The OECD was one of the first organisations to respond to the increase of ­automated data processing and the concern to address the issue of data 26 Explanation 5.1. 27 http://undocs.org/A/RES/68/167. 28 Resolution adopted by the General Assembly on 18 December 2014 [on the report of the Third Committee (A/69/488/Add 2 and Corr 1)] 69/166. The right to privacy in the digital age; http://dag. un.org/bitstream/handle/11176/158167/A_RES_69_166-EN.pdf?sequence=3&isAllowed=y. 29 Resolution adopted by the Human Rights Council 28/16. The right to privacy in the digital age; http:// repository.un.org/bitstream/handle/11176/311688/A_HRC_RES_28_16-EN.pdf?sequence=3& isAllowed=y.

Article 8  257 ­ rotection with an international instrument. On 23 September 1980, the OECD p adopted a Recommendation concerning guidelines governing the protection of privacy and transborder flows of personal data. As the tile of this recommendation suggests, it concerns a set of guidelines with basic principles of data protection, not a convention. The recommendation is accompanied by an Explanatory Memorandum. As explained in paragraph 22 of this Memorandum, the recommendation affirms the commitment of the member countries to protect privacy and individual liberties and to respect the transborder flows of personal data.30 The OECD updated the guidelines in 2013.31 II. CONTENT

A.  General Observations With regard to the content of data protection, a wide range of issues and rights can be discussed. Some arise from the wording of Article 8 CFREU itself. Some of the rights follow from international rights and principles that complement or influence Article 8 CFREU. Some of the rights are also made more concrete as they are implemented in the GDPR. Hereinafter, the most important rights and issues with regard to the scope of application and content of the rights and obligations are dealt with, taking into account Article 8 CFREU, international instruments and the EU’s GDPR. Although the GDPR is an important and central instrument in an EU law context, it is relevant to note that, according to CJEU case law (under the former EU Data Protection Directive), the provisions must ‘necessarily be interpreted in the light of fundamental rights’.32 B.  Scope of Application i.  Personal Scope As provided for by Article 8 CFREU, everyone has the right to the protection of personal data concerning him or her. The question is, to whom does this ­provision apply? Self-evidently, the right to data protection can be seen as a right for workers. But it should be clear that the scope of application is to be understood in a broad sense. Since ‘everyone’ has the right to personal data

30 See for the full text: http://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflowsofpersonaldata.htm. 31 See for the full text: http://www.oecd.org/internet/ieconomy/privacy-guidelines.htm. 32 Österreichischer Rundfunk and Others (C-465/00, C‑138/01 and C‑139/01, CJEU, 20 May 2003, para 68.

258  Frank Hendrickx protection, the right is not dependent on the existence of an employment agreement. Therefore, all persons who perform work or services, independent of their contractual or other status, enjoy the rights under this provision fully. The WP Opinion 2/2017 confirms this approach to application of the EU’s GDPR: [W]here the word ‘employee’ is used in this Opinion, WP29 does not intend to restrict the scope of this term merely to persons with an employment contract recognized as such under applicable labour laws. Over the past decades, new business models served by different types of labour relationships, and in particular employment on a freelance basis, have become more commonplace. This Opinion is intended to cover all situations where there is an employment relationship, regardless of whether this relationship is based on an employment contract.33

Obviously, rights of data subjects are to be respected by employers, but the provisions also imply respect by other parties, such as governments, HR providers, colleagues, subcontractors, even trade unions, and so on. It could be questioned whether the right to data protection can also be enjoyed by a legal person and not only by a natural person. According to Working Party Opinion 4/2007 only a human being is granted protection.34 In its definition of personal data, Article 4 GDPR also limits its scope to data concerning a natural person. However, this is expressed with regard to the (secondary) data p ­ rotection legislation of the EU. It could be questioned whether this­ limitation would follow from the wording of Article 8 CFREU. It may also be wondered whether a limitation to natural persons only would necessarily follow from the nature of this right, so that this would not be excluded per se.35 It is evident that also legal persons, including an organisation or a business, may enjoy fundamental rights, such as the freedom to conduct a business, as expressed in Article 16 CFREU, or the right to collective bargaining and collective action, as expressed in Article 28 CFREU. This means that the right to data protection could also cover protection, for example, with regard to the processing of confidential information about a legal person. It would also imply that, in principle, trade unions may enjoy the right to personal data protection. It would allow, in a broad interpretation, to bring issues of ‘blacklisting’ under the scope of protection of Article 8 CFREU. The Council of Europe’s Convention 108 is open for the application of personal data protection to legal persons. It explicitly allows Member States to expand the protection of the Convention ‘to information relating to groups of persons, associations, foundations, companies, corporations and any other bodies consisting directly or

33 Art 29 Working Party (2007), Opinion 4/2007 on the concept of personal data, WP 136, 20 June 2007, p 4. 34 ibid, 22. 35 For a concurring view on this: European Agency for Fundamental Rights, Handbook on European Data Protection Law (Luxembourg, Publications Office of the European Union, 2014) 37.

Article 8  259 indirectly of individuals, whether or not such bodies possess legal personality’.36 Also the 2013 OECD Guidelines on data protection mention the possibility of applying data protection to legal persons, groups and similar entities, but leaves this to the Member States due to a lack of consensus at the level of the OECD.37 ii.  Personal Data The GDPR defines personal data in Article 4, 1, as any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or ­indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

The material scope of personal data protection is very broad and regardless of the technology used. It can be considered to relate to computer files, data involving a person’s name, image, address, professional status, family status, health information, education, career, income, behaviour, opinions and so on, presented in paper-based or electronically-produced texts, images, and so forth. It does not matter whether personal data are sensitive or not, nor whether they are ‘private’ or ‘public’. The CJEU has made clear, for example, that also data concerning activities of a professional nature are covered by the right to data protection.38 The CJEU has also held, referring to the ECHR, that the collection of data by name relating to an individual’s professional income, with a view to communicating it to third parties, falls within the scope of Article 8 of the ECHR.39 iii.  Personal Data Processing The GDPR has, compared with Article 8 CFREU, a broad but still limited scope of application. According to Article 2, 1 GDPR this regulation applies to ‘the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system’. Processing of personal data is understood in a very broad sense. According to Article 4, 2 GDPR it means any operation or set of operations performed on personal data or on sets of personal data, whether or not by automated means, 36 Art 3, 2, b Convention 108. 37 cf s 33 OECD Guidelines 2013. 38 CJEU, 9 November 2010, Joined cases C-92/09 and C-93/09, Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen, para 59. 39 CJEU, 20 May 2003, Nos C-465/00, C‑138/01 and C‑139/01, Österreichischer Rundfunk and Others, para 73.

260  Frank Hendrickx such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. This broad interpretation is significant for the employment context. Also the collection of personal data is covered by the GDPR. In principle, it is not required that personal data have to be stored and further processed after they have been collected, in order for the regulation to apply. However, the GDPR’s scope of application remains limited to automated or partly automated processing activities, or to processing activities that are purely manual but which form part of a filing system or are intended to form part of a filing system. Manual processing of personal data outside the scope of a filing system is thus not covered by the GDPR. Following Article 4, 6 GDPR, a filing system is ‘any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis’. Although this is quite an abstract definition and open for discussion, it may have practical results. For example, when a recruiter makes notes during a selection interview with a job applicant, these personal notes would not be covered by the GDPR when the notes are taken on paper and if the notes are not (meant to be) kept in a structured way. However, if the notes were taken with a stylus pen on a tablet, or the notes were scanned afterwards, the situation would be covered by the GDPR. Other instruments apply a similar limitation to the scope of personal data protection. For example, in Section 2 of Recommendation CM/Rec(2015)5, where no automated processing is used, data processing means ‘the operations carried out within a structured set established according to any criteria which allows for the search of personal data’. Nevertheless, the Council of Europe Convention No 108 limits, in principle, its scope of application to ‘automated personal data files and automatic processing of personal data’,40 although it does not prevent Member States from deciding on a wider scope.41 The 2013 OECD Guidelines on data protection are not, in principle, limited to any technological intervention. The Guidelines are to be applied whenever their processing poses a danger to privacy and individual liberties. Automatic methods are only one of the problems raised in the Guidelines.42 There is no reason to assume that Article 8 CFREU would be exclusive to, partly or fully automated, personal data processing, nor to data processing leading to a structured set or file. The scope of protection of Article 8 CFREU is, in this sense, broad.



40 Art

3, 1 Convention 108. 3, 2, c Convention 108. 42 cf s 38 OECD Guidelines on data protection 2013. 41 Art

Article 8  261 iv.  Social Media and Personal Data Social media, applications and social networks such as Facebook, LinkedIn, Twitter or YouTube, are increasingly relevant to the employment relationship. Online networking and social media recruiting are becoming part of modern human resources and employment practices. Job applicants can easily search on the world wide web for job opportunities and Google future employers. At the same time, employers use the internet as a new channel for finding and attracting new personnel. Employers also use search terms on the web and can easily Google profiles and background information left on the internet by potential collaborators or job applicants. The impact of social media is also felt in the employment context. Employees may post information on their personal ­Facebook page that leads to disciplinary action by their employer, including dismissal, as it may damage the interests of well-functioning employment ­relations or the employer’s own reputation. When information flows on the internet through social media and is collected or further processed, the right to personal data protection becomes relevant. As by definition it concerns situations of – fully or partly – automatic processing of personal data, the GDPR will play a role. The GDPR applies, according to its Article 4, 2, to ‘any operation or set of operations which is performed on personal data’, including collection or storage of these data. Searching for and finding information via Google, consulting Facebook pages, watching YouTube movies, and so on, will be covered by the GDPR. Although this information search is, in principle, not prohibited, the GDPR would require a number of legal principles to be followed. The Data Protection Working Party has paid attention to this new phenomenon in its WP Opinion 2/2017 in the context of online recruitment. In this opinion, it is stated that ‘employers should not assume that merely because an individual’s social media profile is publicly available they are then allowed to process those data for their own purposes’.43 It is provided that a legal ground is required for such processing, including a legitimate interest, and that employers should take into account whether the social media profile of a job applicant is related to business or private purposes, as this can be an important indication, in the view of the Working Party, of the legal admissibility of the search. The Council of Europe Recommendation CM/Rec(2015)5 also addresses the issue. In Section 5.3 of the Recommendation it is provided that ‘employers should refrain from requiring or asking [from] an employee or a job applicant access to information that he or she shares with others online, notably through social networking’. However, this does not seem to refer to a search made by an employer or future employer, but to a situation whereby an employer asks a worker to obtain access to social media information that is not publicly



43 WP

Opinion 2/2017, 11.

262  Frank Hendrickx a­ ccessible. It can be compared with the WP Opinion 2/2017 stating that ‘there is no legal ground for an employer to require potential employees to “friend” the potential employer, or in other ways provide access to the contents of their profiles’.44 It is clear that the social media or internet environment can also cause a data protection issue between colleagues at work. In the CJEU’s Bodil Lindqvist case, a staff member of a parish in Sweden set up an internet page on her personal computer at home, containing information about her colleagues in the parish, mentioning names and sometimes describing ‘in a mildly humorous manner, the jobs held by her colleagues and their hobbies’. Family circumstances and telephone numbers were also mentioned, as well as a statement that one ­ colleague had injured her foot and was on half-time employment on medical grounds. This was something that the colleagues in question did not appreciate. The CJEU found that this data processing was covered by the EU Data ­Protection Directive and that reference to the fact that an individual had injured her foot and was on half-time employment on medical grounds constituted personal data concerning health.45 v.  Monitoring and Surveillance Monitoring and surveillance of employees also raise issues with regard to the right to data protection. Very often, due to the processing of data protection, it will concern a combined application of the right to privacy (Article 7 CFREU) and the right to personal data protection (Article 8 CFREU). The ECtHR has been looking at monitoring issues through the lens of the right to data protection under its broad interpretation of the right to privacy recognised by Article 8 ECHR. In Köpke v Germany,46 it was found that covert video surveillance of a shop assistant and the recording and uncontrolled processing of the personal data violated the employee’s right to respect for her private life. The ECtHR also used the data protection concept in guaranteeing protection with regard to location data tracking.47 In Antovic and Mirkov v Montenegro,48 the ECtHR examined closely whether video surveillance of university professors was in conformity with the applicable data protection legislation. It noted that one of the envisaged monitoring aims, notably the surveillance of teaching, was not provided for by the applicable law. The Court concluded that the interference in question was not in accordance with the law, a fact that sufficed to constitute a violation of ­



44 WP

Opinion 2/2017, 11. 6 November 2003, No C-101/01, Bodil Lindqvist. 46 ECtHR, 5 October 2010, No 420/07, Köpke v Germany. 47 ECtHR, 2 September 2010, No 35623/05, Uzun v Germany. 48 ECtHR, Judgment of 28 November 2017, No 70838/13, Antovic and Mirkov v Montenegro. 45 CJEU,

Article 8  263 Article 8. In López Ribalda and Others v Spain,49 a discussion was raised about the use of hidden cameras by an employer, without prior notice (the employer only gave notice of visible cameras in the workplace but not of the hidden ones). The Court, in finding a violation of Article 8 ECHR, took into account the fact that the video surveillance did not comply with the requirements stipulated in the applicable data protection act, in particular, with the obligation to previously, explicitly, precisely and unambiguously inform all persons concerned about the existence and the particular characteristics of a (monitoring) system collecting personal data. In Bărbulescu v Romania the ECtHR considered the monitoring of electronic messages (through a Yahoo Messenger account), including personal messages, of an employee by his employer, in order to verify the conformity of the ­employee’s behaviour with internal policies. The Court held that the right to privacy as guaranteed by Article 8 ECHR had been violated. The ECtHR made its assessment after referring to the international instruments on data protection, including those of the European Union. The ECtHR referred to both Article 7 and Article 8 CFREU. It also referred to the EU Data Protection ­Directive, as well as the GDPR, and to the EU Working Party Opinion 8/2001. The issue of monitoring and surveillance will be discussed more widely in the chapter on ‘private and family life’ in this volume. C.  Specific Rights Article 8 CFREU provides that personal data must be processed fairly for specified purposes and based on the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data that have been collected concerning him or her, and the right to have it rectified. We see four main aspects in this protection: (i) legitimacy: personal data must be processed on a legitimate basis; (ii) purpose limitation: personal data must be processed for specified purposes; (iii) fairness: personal data must be processed fairly; (iv) access and rectification: everyone has the right of access and the right to have it rectified. i.  Legitimacy of Personal Data Processing Personal data must be processed on a legitimate basis. In other words, the necessity of personal data protection has to be justified on the basis of a legitimate ground, reason or purpose. A legitimate basis requires, in the first place, that it is lawful. This principle is, for example, explicitly provided in Article 5, 1, a and 6 GDPR. It would,

49 ECtHR,

Judgment of 9 January 2018, Nos 1874/13 and 8567/13.

264  Frank Hendrickx for example, be difficult to accept personal data collection or processing that is based on discriminatory grounds or purposes. The application of this­ legitimacy principle will be much dependent on the context and circumstances of data processing. It must be clear that the employment relationship often provides a legitimate basis for personal data processing. The GDPR shows that employers who want to process employees’ personal data may justify the legitimacy of the processing on a wide variety of grounds. Under the Article 6 GDPR, processing is considered to be lawful when necessary: –– for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; –– for compliance with a legal obligation to which the controller is subject; –– in order to protect the vital interests of the data subject or of another natural person; –– for the performance of a task carried out in the public interest or in the ­exercise of official authority vested in the controller; –– for the purposes of the legitimate interests pursued by the controller or by a third party. In other words, personal data processing is not only legitimate when employers are required or obliged to process these data, but also in cases where employers have a contractual or other legitimate interest. Justifications may come from the employer’s legitimate interests in: recruitment and selection; the exercise of his rights, such as the right to exercise authority and control, or to direct the enterprise and plan the work, under the employment contract; payroll, ­administration and human resources; health and safety obligations and actions; diversity policies, and so on. It seems obvious that this justification, as the GDPR wording suggests, requires a test of ‘necessity’. For all personal data, the link with the legitimate purpose must be able to be identified and shown to be necessary. As this necessity should be evaluated in light of the aim pursued,50 this implies that the processing has to remain proportionate to the legitimate purposes.51 In the words of the European Working Party: ‘Regardless of the legal basis for such processing, a proportionality test should be undertaken prior to its commencement to consider whether the processing is necessary to achieve a legitimate purpose’.52



50 s

4.1 CoE Rec 2015. Opinion 2/2017, 7. 52 ibid, 4. 51 WP

Article 8  265 The idea of proportionality can be found in the ‘data minimisation’ principle as recognised in Article 5, 1, c GDPR, providing that the processing of personal data should be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed. ii.  The Issue of Consent A specific ground of personal data processing is consent. Article 8 CFREU mentions ‘the consent of the person concerned’. However, in an employment context, one may question whether consent can be a legitimate ground for personal data processing, given the dependent situation in which both job applicants and employees are found. The freedom of consent is an important issue in data protection law. Consent is obviously only a valid ground if given freely. Article 4, 11 GDPR defines consent as ‘any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her’. The GDPR provides furthermore that, when assessing whether consent is given freely, the utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.53 Furthermore, the GDPR provides that data subjects have the right to withdraw their consent at any time.54 The Working Party shares the view of the problematic nature of consent in employment relationships. It is of the opinion that ‘unless in exceptional ­situations, employers will have to rely on another legal ground than consent – such as the necessity to process the data for their legitimate interest’.55 It furthermore states that default settings on devices or the application of software cannot qualify as consent given from employees, as consent would require an ‘active expression of will’.56 The 2015 Council of Europe Recommendation gives less indication with regard to the overall problematic nature of consent in the employment context. This recommendation rules out consent in only a limited number of cases, such as with regard to the processing of genetic data.57 Self-evidently, the limited possibilities of obtaining an employee’s consent for personal data protection stand in contrast with the wide range of legitimate grounds for employers to process personal data.



53 Art

7, 4 GDPR. 7, 3 GDPR. 55 WP Opinion 2/2017, 4. 56 ibid, 7. 57 s 9.3. CoE Recommendation 2015. 54 Art

266  Frank Hendrickx iii.  Purpose Limitation of Personal Data Processing According to Article 8 CFREU, personal data must be processed for specified purposes. This general requirement arises in most data protection instruments.58 The purpose limitation principle is laid down in Article 5, 1, b GDPR which provides that personal data must be collected for specified, explicit and legitimate purposes and should not be further processed in a manner that is incompatible with those purposes. It concerns an important principle that is related to the verifiability and transparency of personal data processing. It also contributes to the fairness of data processing. The principle not only requires that the original purpose of data collection needs to be legitimate and clear, but also that s­ubsequent data processing activities remain compatible with the original purposes. For example, personal data collected specifically for the purpose of health and safety reasons cannot be used to evaluate individual work ­performance. With regard to purpose limitation, a relevant staff case has arisen before the European Civil Service Tribunal. For European civil servants, it is relevant to mention Regulation 45/2001 on data protection,59 which has led to the case law. In the case of ‘V’,60 it concerned a candidate who was rejected by the ­European Commission after being held unfit for hiring by the Commission Medical Service. When she was offered a post as contractual agent with the Parliament later on, the Parliament requested and received a copy of her medical file from the Commission’s medical service. This job was then also refused to her on the ground that she was unfit to work in any of the EU institutions. According to the Tribunal, there was a violation of the right to data protection. It concerned sensitive data that could not just be transferred to another institution without the individual’s consent. According to the Tribunal the purpose of the Commission’s collection of the data was to determine the applicant’s fitness to perform the duties in the Commission’s post. Using them to determine her fitness for the post with the Parliament was a change of purpose as each institution is an independent employer. iv.  Fairness of Personal Data Processing According to Article 8 CFREU, everyone has the right to fair personal data processing. Fairness can be seen broadly and interpreted in many ways. It is certainly connected with the question of legitimacy and with the purpose-­ limitation principle.

58 cf Art 5 CoE Convention 108. 59 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L008, 12/01/2001. 60 V & EDPS v European Parliament, 5.7.2011, F-46/09.

Article 8  267 Fairness also implies transparency. This is made clear in the Council of Europe’s 2015 Recommendation, which brings transparency of processing in direct relation with the need to guarantee fair processing.61 This means that employees ‘must be informed of the existence of any monitoring, the purposes for which personal data are to be processed and any other information necessary to guarantee fair processing’.62 Transparency requirements are provided for in Articles 13 to 15 GDPR granting data subjects the right to be informed about whether personal data regarding him or her are being collected and the identity of the controller, the purposes, whether data are being transferred to recipients and so on. Under Article 15, 1, h GDPR, a data subject has the right to obtain information about the existence of automated decision-making, including profiling, and to receive meaningful information about the logic involved, as well as the ­significance and the envisaged consequences of such processing. v.  Access and Rectification of Personal Data According to Article 8 CFREU, everyone has the right of access to personal data (concerning him or her) and the right to have it rectified. The right to access and rectification of personal data is obviously relevant in the employment context. Under the GDPR, access to personal data processing is provided in Article 15. It contains a right to receive a copy of the personal data undergoing processing.63 Article 16 GDPR provides, furthermore, that data subjects have the right to obtain rectification of inaccurate personal data concerning them. Taking into account the purposes of the processing, the data subject has the right to have incomplete personal data completed, including by means of providing a supplementary statement. Closely connected to the right to access and rectification is the ‘right to be forgotten’. This right was recognised, though in a specific context, by the CJEU in the widely known Google case, with reference to Article 8 CFREU.64 Under certain conditions, the GDPR also provides for a right to erasure, or a ‘right to be forgotten’ for the data subject, meaning the right to obtain from the controller the erasure of personal data.65 This right to erasure and to be forgotten is interesting in light of the employment context. It could be explored as a right for employees to demand that information about their past employment would not be brought to wide (public) attention after a certain period of time. That this right is not theoretical can be illustrated by the ECtHR case of Sõro v Estonia of 3 September 2015, where the 61 s 10.1. CoE Recommendation 2015. 62 WP Opinion 2/2017, 8. 63 Art 15, 3 GDPR. 64 CJEU (GC), 13 May 2014, No C‑131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos (AEPD). 65 Art 17, 1 GDPR.

268  Frank Hendrickx Court found a violation of the right to private life due to the fact that information about the applicant’s employment as a KGB driver during the Soviet era was published in the Estonian State Gazette in 2004, almost 13 years after Estonia had declared its independence, and due to which the applicant had to quit his job. However, the EU Working Party has nuanced the meaning of the right to be forgotten in its Guidelines for data protection authorities on the implementation of the CJEU’s Google judgment. In particular, the Working Party is of the opinion that a distinction between private and professional life has to be made and suggests that professional life exposure is less problematic. The availability of information in a search result becomes, in the Working Party’s view, ‘more acceptable the less it reveals about a person’s private life’.66 In our opinion, however, this distinction is often unclear. Furthermore, given the fact that also someone’s professional life, as the case law of the ECtHR states, can fall under the protection of the right to privacy, there seems no reason to be more lenient towards ‘professional’ information. A right to have information erased and forgotten is obviously also connected with the principle that personal data need to be – and have to remain – relevant. Such a requirement of relevancy is provided, for example, in Article 5, 1, c GDPR. A relevant European institution’s staff case concerns the use of the internal e-mail system for trade union activities. A trade union member and staff member working for the European Central Bank was informed by the management that they had abused the e-mail system of the ECB. She was warned that the sending of e-mail messages addressed to all ECB staff required management authorisation and that this could not be circumvented for trade union purposes. The management stored its communication with the staff member about this affair in her personal file. The Court found that the inclusion of this communication in the personal file of the staff member constituted processing of personal data, but it also found that the ECB may be entitled to consider that inclusion is necessary for the performance of the employment contract. It may be relevant according to the Court for the assessment of the staff member’s conduct in the service.67 An interesting issue with regard to access and rectification is raised in the CJEU judgment of 20 December 2017 in the case of Nowak v Data Protection Commissioner.68 It concerned a trainee accountant who passed accountancy examinations by the Institute of Chartered Accountants of Ireland (CAI), but who repeatedly failed one particular examination. The trainee submitted a data

66 Working Party, Guidelines on the implementation of the Court of Justice of the European Union judgment on Google Spain and Inc v Agencia Espanõla de Protección de Datos (AEPD) and Mario Costeja González, C-131/12, adopted on 26 November 2014, 16 (http://ec.europa.eu/justice/ data-protection/article-29/documentation/opinion-recommendation/files/2014/wp225_en.pdf). 67 T-320/02, Esch-Leonhardt and Others v European Central Bank, 18.2.2004. 68 CJEU, 20 December 2017, No C‑434/16, Nowak v Data Protection Commissioner.

Article 8  269 access request, under the applicable data protection legislation, seeking all the personal data relating to him held by the CAI, including the examination script. Both the CAI and the Data Protection Commissioner refused the request on the ground that it did not contain personal data. Under Directive 95/46, the Supreme Court decided to refer the question to the Court of Justice of the EU. The CJEU is of the opinion that the comments of an examiner with regard to a candidate’s answers, no less than the answers submitted by the candidate at the examination, constitute information relating to that candidate. According to the Court, the content of those comments reflects the opinion or the assessment of the examiner of the individual performance of the candidate in the examination, particularly of his or her knowledge and competences in the field concerned. The purpose of those comments is, moreover, precisely to record the evaluation by the examiner of the candidate’s performance, and those comments are liable to have effects for the candidate. Therefore, the data subject has a right of access to the data relating to him. The Court recognises that this does not imply a right to change the exam answers afterwards, but the right to access enables the data subject to obtain, depending on the circumstances, rectification (for example, material mistakes by the examination authority), erasure or ­blocking of the data (for example, when communication to third parties is intended). Obviously, the discussion is also relevant in employment relationships. With regard to employee evaluation reports, employees will be able to exercise a right to access to evaluations made about them. Rectification will, however, in principle be limited to material aspects, but this does not take away the importance of the principle of access to the data. A nuance is, however, important. Evaluation reports are not completely the same as examinations, but there seems to be no reason to exclude also these data from the protection offered by data protection legislation and by Article 8 CFREU. The CJEU also recognised that restrictions can be imposed on this right, taking into account other rights and the rights and freedoms of others. The burden of proof to limit access will be on the employer, being the data controller. He would also need to come up with arguments for not giving a copy of evaluation reports, as provided by Article 15 GDPR. A possible l­imitation might be that, in an HR context, evaluations may imply information of other employees (colleagues) who have a right to and interest in not having their information disclosed in light of the exercise of data protection rights of another employee. D. Limitations The right to personal data protection is a fundamental right, but it is not an absolute right. This is not only specifically mentioned by the CJEU,69 which 69 CJEU (GC), 9 November 2010, Nos C-92/09 and C-93/09,Volker und Markus Schecke Gbr and Hartmut Eifert v Land Hessen.

270  Frank Hendrickx added that the right to the protection of personal data must be ‘considered in relation to its function in society’70 and pointed out that disclosing information of personal data requires a balance.71 This ‘not absolute’ character is also mentioned in preamble 4 of the EU’s GDPR where this right is considered to ‘be balanced against other fundamental rights, in accordance with the principle of proportionality’. It may, according to the GDPR’s preamble, need to take into account the freedom of expression and information, as well as the freedom to conduct a business. In many cases, limitations to the right to data protection may arise from a wide range of opposing rights and interests. In the employment context, both the right to information and the freedom to conduct a business will be important factors to be taken into account for the realisation of the right to personal data protection. E. Enforcement In data protection law, the establishment of a data protection authority constitutes a major instrument of enforcement. Although this is not provided for in Article 8 CFREU as such, a European Data Protection Board and a European Data Protection Officer have been established on the basis of the GDPR. ­Article  77 GDPR provides that every data subject has the right to lodge a complaint with a supervisory authority, in particular in the Member State of his or her habitual residence, place of work or place of the alleged infringement. Article 83 GDPR foresees the imposition of administrative fines. The GDPR also provides for the appointment of a data protection officer at the level of the data controller.72 The data protection officer’s task is not only to monitor compliance with the GDPR, but also with other provisions of EU law,73 such as Article 8 CFREU. Rules that provide more clarity as to the exact meaning and application of data protection rights and principles to the employment context self-evidently contribute to better enforcement, also seen in a preventive way, of the right to personal data protection. In this context, it is worth mentioning that the GDPR also refers to possible specific rules on personal data processing in the context of employment. According to Article 88 GDPR, it may concern rules set by law or by collective agreement. The GDPR also provides the possibility to use certification as a method of enforcement. According to Article 42, 1 GDPR, the establishment of data protection certification mechanisms and of data protection seals and marks, for the purpose of demonstrating compliance with the Regulation, is encouraged.

70 Para

48. 85. 72 Art 37 GDPR. 73 Art 39, 1, b GDPR. 71 Para

Article 8  271 III. CONCLUSIONS

The right to personal data protection, as recognised by Article 8 CFREU, is beyond doubt an important right in the employment context. Not only is there the, sometimes inherent, relevance of exchange or disclosure of personal data in employment relations. The growing presence of new technologies and the ­creation of a digital workplace raise many legal issues with regard to personal data protection. It is clear that there is a strong connection between the right to data protection and the right to privacy. Not only the international instruments, but also the ECtHR and the CJEU, refer to this connection. But it should also be clear that the right to personal data protection is wide and not only covers ‘private’ information or information relating to an individual’s private life. It also ­ concerns professional information concerning an individual or publicly available personal data. The right to personal data protection is a highly regulated area. The EU’s General Data Protection Regulation (the GDPR) is a crucial instrument in EU law. It contains a wide number of rights and obligations in the context of data protection. Many of the rights of the GDPR go into more detail and are wider than Article 8 CFREU. Due to its wide scope of application, the GDPR is also applicable to the employment context. It is clear that many of the rights contained in Article 8 CFREU or made explicit in the GDPR are relevant for workers. Proper and more specific guidance of data protection rights to the employment context is clearly needed and it has been provided by the ILO, the Council of Europe and the EU Working Party. However, Article 88 GDPR suggests that more is possible, such as specific legislation related to the processing of personal data in the employment context. The GDPR also refers to the role of collective bargaining in this area. A collective agreement providing specific rules and principles may serve its role under the GDPR, but may also be a way of effectively realising the rights under Article 8 CFREU in the employment context.

272

13 Article 10 – Freedom of Thought, Conscience and Religion FLEUR LARONZE

Article 10 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in ­community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

EXPLANATIONS The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.

I. INTRODUCTION

This article for the very first time establishes freedom of religion in European Union law. However, in the national legal systems for which secularism appears

274  Fleur Laronze to be a cardinal value, this article has been criticised and has been the subject of a number of discussions between Germany and France.1 A.  Context and Main Content Religion is first of all mentioned in the preamble of the Treaty on European Union (TEU) to describe the origin of the universal values in Europe2 or in ­Article 22 of the Charter the diversity to underline respected by the Union.3 These provisions refer to religion in a general way and in fact result from a compromise between the States: those who wished to advocate a particular religion and those who claim secularism. The Community Charter of the Fundamental Social Rights of Workers (Community Charter) evokes religion in its preamble without using this particular word, but by referring to discrimination based on ‘opinions and beliefs’.4 Together with the legally binding character of the Charter provided for by the Lisbon Treaty, religion was protected on the basis of texts related to discrimination5 and to religious practice.6 A European source, from the law of the Council of Europe, directly inspired this article, namely Article 9 ECHR. Against the background of the development of international human rights protection, such recognition in European Union law was undeniably necessary.7 This article is not fully mobilised in labour litigation. But recent cases seem to give it promising scope in the area of workers’ freedoms. 1 While freedom of religion and state autonomy from religion are guaranteed in Germany, secularism does not exist. Religious communities are even the second largest employer in Germany. In France, the separation between state and religion is part of its social and cultural heritage to the point that the very term ‘religious’ was deliberately avoided in the Preamble of the Charter in the English and French versions (English: ‘spiritual and moral heritage’, French: ‘patrimoine spirituel et moral’), whereas the German version explicitly refers to ‘geistig-religös’ (spiritual-religious’), thus leading to contrasting formulations. 2 ‘Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law’. 3 ‘The Union shall respect cultural, religious and linguistic diversity’. 4 In the 8th recital of the Preamble, it is mentioned that ‘Whereas, in order to ensure equal treatment, it is important to combat every form of discrimination, including discrimination on grounds of sex, colour, race, opinions and beliefs, and whereas, in a spirit of solidarity, it is important to combat social exclusion’. 5 Art 10 TFEU on the grounds of discrimination, Art 19 TFEU on the legislative procedure in the matter of discrimination; prior to the Charter: Directive 2000/78/CE of 27 November 2000, establishing a general framework for equal treatment in employment and occupation. 6 Art 13 TFEU on the welfare requirements of animals and specifically ritual slaughter; Art 17 TFEU on the autonomy of the religious organisations respected by the Union; Art 14 on the freedom to found educational establishments with due respect for the religious convictions of individuals/ parents. 7 G Lebreton, ‘Critique de la Charte des droits fondamentaux de l’Union européenne’ (2003) Revue Dalloz 2319; R Mehdi, ‘L’Union européenne et le fait religieux, Eléments du débat constitutionnel’ (2003) 54 Revue française de droit constitutionnel 227.

Article 10  275 This provision is, moreover, truly original by mentioning in its paragraph 2 the right to conscientious objection to the extent that no international text provides for it.8 Admittedly, this provision refers to national laws. The right to freedom of thought, conscience and religion is defined at least primarily as a civil and political right.9 This right includes the freedom of thought that corresponds to the freedom of the forum internum, alone and in private, absolutely protected. This ­freedom can be articulated in terms of freedom of conviction, which may mean not having any religion, and freedom of conscience, which can take the form of the freedom to decide to act in accordance with one’s convictions. The right to ­freedom of religion may be considered the freedom to have (or change) a religion, on one hand, and, on the other hand, the freedom to exercise one’s religion in different ways. The freedom to manifest one’s religion or belief, merely relative, may be exercised individually or collectively, which may also include a religious ­organisation.10 In addition, private and public demonstrations of freedom of religion through worship, education,11 practices and the performance of rituals are protected so that any coercion, (criminal or civil) punishment or prohibition against a person expressing his or her freedom of religion should be sanctioned. Restrictions on this freedom are possible in accordance with ECtHR case law and with the EU regulations on non-discrimination.12 B.  Relationship to Other Provisions of the Charter The right to freedom of thought, conscience and religion is enshrined in ­Article 10 in the form of a gradation, from the general to the particular. Freedom of religion can be interpreted as an emanation of freedom of thought. 8 The Human Rights Committee under the International Covenant on Civil and Political Rights has recognised it by interpretation of the right to freedom of thought, conscience and religion (Human Rights Committee, General Comment no 22 (48), on Art 18 ICCPR, 27 September 1993). But the Charter remains the only international text that mentions the existence of this right. 9 What is called in mobilising a concept of theory of law a ‘droit-liberté’. Art 10 is therefore not more specifically invoked by workers or by any person claiming special social conditions, ‘[l’]homme situé’ according to G Burdeau (the addressees of economic and social rights, considered as a ­‘droit-créance’ or rights depending on the adoption of a national measure). Cf G Burdeau, La démocratie. Essai synthétique (Bruxelles Office de Publicité, 1956) 19. 10 Art 17 TFEU protects the existence of religious organisations and stresses respect for their status by the European Union. 11 In Art 14 of the Charter, the third paragraph provides that ‘the freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right’. 12 Notably, the Fundamental Rights Agency (FRA) considers the protection of freedom of religion through the rules on discrimination, and promotes the protection of religious (but also ethnic) diversity combating intolerance and hate. cf: http://fra.europa.eu/en/publication/2015/promotingrespect-and-diversity-combating-intolerance-and-hate.

276  Fleur Laronze This gradation is also inscribed in Title II ‘Freedoms’ and the following article is about freedom of expression and information. In other words, A ­ rticle 10 is at the crossroads of the freedoms recognised in the Charter, in the forum ­internum of individuals and even in their manifestation or externalisation. However, ­Articles 10 and 11 are autonomous so that they are not found in ­identical ­litigation.13 Referring to Article 52 on the interpretation to be adopted, Article 10 – which is very similar to Article 9 ECHR – applies the case law of the European Court in relation to this article.14 C.  Relationship to Other Relevant Instruments i.  EU Instruments Religion is taken into account in EU law and protected through the provisions on discrimination. These are measures taken to combat inequalities on the basis of a prohibited ground, affecting a person or group of persons. Specific measures ensure the expression of freedom of religion by allowing practices that conform to certain religions. a.  Prohibition of Discrimination Recalling briefly the grounds of discrimination in Articles 10 and 19 TFEU, the legal system of the prohibition of discrimination is specified in Directive 2000/78/ EC of 27 November 2000 applied in the workplace. After nationality, sex and disability, religion appears as the fourth ground of discrimination. But the CJEU case law does not reveal its importance. Some topical cases illustrate circumstances of discrimination based on religion but remain much less important than those on nationality, sex or disability.15 ­Moreover, some provisions of EU law focus on religious practices in line with the freedom of religion. b.  Framing Religious Practices EU regulations concerning religious practices by individuals within the framework of religious or non-religious organisations allow derogations in accordance with national legislation. Two lessons can thus be drawn, namely that the religious question is primarily a question of national policy and not fundamentally European Union policy.



13 cf

Ch 14 on Art 11 in the present book. Ch 7 on Art 52 in the present book. 15 CJEU, 27 October 1976, C-130/75, Vivien Prais v Council of the European Communities. 14 cf

Article 10  277 Furthermore, religious practice is only considered under a derogatory regime, in European Union law.16 We can give some non-exhaustive examples of derogatory EU legislation. Religious organisations such as churches or worship associations are given special legal status. Article 4 Directive 2000/78 of 27 November 200017 contributes to the autonomous recognition of religious organisations, otherwise known as trend enterprises.18 It can be compared with Article 17 TFEU, which recognises the specific identity and status of religious organisations in accordance with national law.19 The staff of a religious organisation is subject to specific legislation, particularly as regards working time. Directive 2003/88/EC of 4 November 2003 authorises, as a derogation, adjustments to the working time of workers in ­liturgical and religious communities because of the particular characteristics of their activity.20 ii.  Council of Europe Instruments a. ECHR According to the Explanations, Article 10 echoes Article 9 ECHR.21 Both ­articles are obviously not limited to employment. The formulation of the content of 16 We can evoke ritual slaughter, which is the subject of a recently amended regulation in 2009, even if it is outside the employment relation. Regulation 1099/2009 of 24 September 2009 allows a derogation from the obligation to stun animals in case of ritual slaughter (Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing, OJ 18  November 2009: ‘18. Derogation from stunning in case of religious slaughter taking place in slaughterhouses was granted by Directive 93/119/EC. Since Community provisions applicable to religious slaughter have been transposed differently depending on national contexts and considering that national rules take into account dimensions that go beyond the purpose of this Regulation, it is important that derogation from stunning animals prior to slaughter should be maintained, leaving, however, a certain level of subsidiarity to each Member State. As a consequence, this Regulation respects the freedom of religion and the right to manifest religion or belief in worship, teaching, practice and observance, as enshrined in Article 10 of the Charter of Fundamental Rights of the European Union’). This regulation echoes Art 13 TFEU on animal welfare requirements in respect of uses related in particular to religious rites. 17 This provision provides in particular for the possibility of justifying a difference of treatment that does not constitute discrimination ‘where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’. See in this ch, s II. Content. 18 The last paragraph of Art 4 includes the following: ‘Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos’. 19 See CJEU, 17 April 2018, C-414/16, Egenberger, paras 56–58. 20 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, OJ L 299, 18/11/2003 P. 0009–0019, Art 17. 21 cf Art 52(3)) of the Charter.

278  Fleur Laronze this right is similar. Article 9(2) ECHR mentions the limitations of the right to ­freedom of religion or belief.22 In order to interpret the material scope of ­Article  10, it is necessary, according to Article 52(3), as a minimum level of protection to transpose the analysis of the ECtHR to EU cases. This interpretation of Article 10 by the CJEU may also be a response to the synergy of sources adopted by the ECtHR. It is more specifically the judgment in Demir and Baykara23 that has shown that the ECHR could be interpreted in light of international law texts other than the Convention. For instance, Directive 2000/78/ EC is found most of the ECtHR cases related to discrimination on the ground of religion. Similarly, the case law of the ECtHR on Article 9 ECHR is applicable to Article 10 of the Charter. But it seems possible that the CJEU will distance itself from the case law of the ECtHR. The freedom of religion of individuals and more specifically that of workers is recognised in a slightly different way by the two Courts. The ECtHR recognises the link between freedom of religion and the principle of non-discrimination (Articles 9 and 14 ECHR), whereas the CJEU does not recognise such a link between these two provisions in the Charter (Articles 10 and 21) and mobilises the notion of indirect discrimination24 more efficiently than direct discrimination. The Luxembourg Court will not go as far in protecting this freedom as the ECtHR by admitting the possibility of introducing a policy of religious ­neutrality in a company through its internal rules.25 On the other hand, the CJEU has decided to reduce the autonomy of religious organisations so that they must submit to state rules and judicial review of the decisions they adopt.26 Nevertheless, the interpretation adopted ‘in fine’ by the CJEU is in line with that of the ECtHR in that it guarantees the right to autonomy of churches weighed against the right of workers not to be discriminated against.27 The principle of proportionality is applied in taking into account religion or belief as a genuine, legitimate and justified occupational requirement and adding to ‘the reasoning of the ECtHR’ the words ‘in abstracto’. Different questions are answered by the ECtHR. On one hand, the boundaries of the religious area are determined in order to entitle someone to claim the right to freedom of religion. On the other hand, the quality of litigants can be questioned as members of the religious staff of an organisation.

22 ‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. In the same terms, these limitations are provided by Art 18 of International Covenant on Civil and Political Rights. 23 ECtHR, 12 November 2008, No 34503/97, Demir and Baykara v Turkey. 24 Defined in Directive 2000/78/EC of 27 November 2000, Art 2. Cf in this ch s II. 25 Cf in this ch, s II.D.ii with regard to the principle of non-discrimination. 26 Opinion AG Tanchev, 9 November 2017, C-414/16, Egenberger, para 127, 3(ii). 27 CJEU, 17 April 2018, C-414/16, Egenberger, para 51.

Article 10  279 1.  The Boundaries of the Religious Area The ECtHR has gradually decided not to intervene in the definition of ‘religion’ in order to limit any interference with this right recognised in relation to individuals and collective organisations. Initially, this Court had held that the worker could reconcile his freedom of religion with the professional requirements by resigning in order to terminate the interference with his freedom.28 Thus, the ECtHR has introduced a subjective approach. Since the Eweida and others cases rendered on 15 January 201329 it is necessary to establish a sufficiently close link between the act and the underlying belief. Then it is no longer required to establish the religiosity of the act.30 The Court protects the freedom of religion in its entirety, under Article 9 ECHR, because professional engagement does not imply a relinquishment of the freedom of religion. Henceforth, the judge proceeds by a pragmatic assessment of the proportionality of the invoked interferences.31 Leaving a margin of appreciation to the States, the freedom of religion can be limited only with regard to respect for the religious pluralism necessary in any democratic society.32 2.  The Justiciability of the Right to Freedom of Religion Furthermore, the quality of litigant and the justiciability of the right to freedom of religion has been clarified by the ECtHR. In a recent case, alleging the right under Article 6(1) ECHR, the applicant as a pastor in the reformed Church of Hungary was entitled to 50 per cent of his service allowance during his suspension after having sent a letter disputed by the Church. Pursuant to Civil Code provisions, the applicant was opposed to the rejection of his request because of the competence of ecclesiastical law. The Court considered that it is necessary to distinguish procedural and substantive elements33 but concluded that ­Article 6 ECHR was not applicable. The autonomy of ecclesiastical law is extremely strong to the point of rejecting any of the rights universally recognised to i­ ndividuals. b.  European Social Charter (ESC) Article 1(2) ESC guarantees the right to work including the prohibition of all forms of discrimination in employment inter alia on grounds of sex, race, ethnic origin, religion, disability, age, sexual orientation and political ­opinion.34 28 ECtHR, 3 December 1996, No 24949/94, Konttinen v Finland. 29 ECtHR, 15 January 2013, No 48420/10, 59842/10, 51671/10 and 36516/10, Eweida et al v UK. 30 For example, the meeting of dietary requirements, time off for religious observance or uniform codes are manifestations of religion. 31 G Caceres, Religion and beliefs: fundamental rights guaranteed by the ECHR and EU law (ORELA, 2016). 32 ECtHR, 25 May 1993, No 14307/88, Kokkinakis v Greece. 33 ECtHR, 14 September 2017, No 56665/09, Károly Nagy v Hungary, para 61. 34 Council of Europe (ed), Digest of the Case law of the European Committee of social rights, September 2008.

280  Fleur Laronze The  enjoyment of all the rights set forth in the ESC is guaranteed without discrimination, especially on the ground of religion.35 iii.  ILO Instruments ILO Convention No 111 concerning discrimination in respect of employment and occupation (25 June 1958) includes religion among the bases of the distinction, exclusion or preference made.36 The Committee of Experts on the Application of Convention and Recommendations (CEACR) insisted on the aim of this Convention, providing for protection against religious discrimination but also for the expression of religion.37 Some examples are given, such as religious holidays, special types of clothing or working conditions. These practices need to be balanced with the occupational requirements as far as A ­ rticle 1(2) Convention No 111 lays it down.38 The objectives of the Convention can be achieved in prohibiting discrimination on the basis of religion combined with the distinction based on the other grounds, such as sex. Focusing on the employment of women and their access to education, the CEACR has considered39 ‘that regulations imposing a mandatory dress code for women in the public sector, or rules imposing observance of the Islamic veil for students in universities and higher education institutions, could have a negative impact’.40 iv.  UN Instruments The recognition of freedom of thought, belief and religion is also enshrined in the vast majority of international legal instruments, in a similar f­ormulation.41 The Human Rights Committee (CCPR) adopted a General Comment (No 22) in 1993 related to Article 18 ICCPR, explaining in detail the content of freedom of thought, conscience or religion.42

35 Art E ESC. 36 Art 1 of the Convention mentions: ‘1. For the purpose of this Convention the term discrimination includes: (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’. 37 ILO (ed), Giving Globalization a Human Face, International Labour Conference (101st session, ILO Geneva, June 2012, paras 798 ff). 38 ‘2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.’ 39 cf CEACR, observation, Islamic Republic of Iran, 2006. 40 ILO (n 37) para 800. 41 Arts 2 and 18 UDHR; Art 18 ICCPR. See also Art 12 American Convention on Human Rights; Art 8 African Charter on Human and Peoples’ Rights. 42 Session of the Human Rights Committee, on 30 July 1993 CCPR/C/21/Rev 1/Add 4, General Comment No 22.

Article 10  281 The United Nations Commission on Human Rights appointed, following resolution 1986/20, a Special Rapporteur on religious intolerance, becoming the Special Rapporteur on Freedom of Religion or Belief, a term subsequently confirmed by ECOSOC Decision 2000/261, which was welcomed by the General Assembly in its resolution 55/97. On 23 March 2016, the Human Rights Council adopted Resolution 31/16 extending the mandate of the Special Rapporteur for another three years. Human Rights Council Resolution 6/37 instructs the Special Rapporteur to encourage the adoption of measures at national, regional and international level to protect the right to freedom of religion or belief, to identify difficulties in exercising this right and the means to fix it. His role is important in order to take into account gender-based violence. II. CONTENT

A.  General Observations All citizens of the European Union can a priori benefit from freedom of religion, ranging from individual applicants to religious organisations. Religion or belief may constitute an obstacle to the freedom of movement of persons. Within the framework of the economic dimension, the Charter protects citizens’ rights, nationals of the Member States first and foremost, but also those of refugees and asylum seekers. However, with the Charter and even before that, with the EU Treaty, it appears to judge Koen Lenaerts that the EU’s competence ‘focuses on non-economic goals to a far greater extent than the EC Treaty’.43 That could explain the emergent case law on the scope and protection of individual freedom of religion through preliminary rulings. Thus, the labour-related case law on the individual freedom of religion is very recent. Henceforth, freedom of religion is also granted to an organisation more ­effectively on the basis of Articles 10 and 12 of the Charter, Article 17 TFEU and Article 4 of Directive 2000/78/EC. The paradox lies in the definition of freedom of religion given without specifying the modalities of its protection. Freedom of religion is guaranteed in the Charter. However, its protection is not conceived as a civil or political right that every worker can directly invoke before a national judge.44 Then, only the violation of this freedom by state regulation or by another freedom in a particular litigation can give rise to compensation, provided that the national court asks a preliminary question. No international or internal litigations would appear

43 K Lenaerts and P van Nuffel, European Union Law (London, Sweet and Maxwell, 2011) 107. 44 Art 10, like some other articles of the Charter, according to CJEU case law cannot be, a priori, invoked by individuals. It has no horizontal direct effect.

282  Fleur Laronze likely to lead to condemnations of a Member State on the basis of Article 10 for the benefit of an individual. To illustrate this, in the Egenberger judgment of 17 April 2018, the CJEU mobilises Article 10, which is correlated with Article 9 of the Convention, without giving it effective implementation as important as that granted to the right to non-discrimination (Directive 2000/78/EC, Article 21 of the Charter).45 Although the Court recognises the need to disapply any national provision that is contrary to European Union law, it refers only to Articles 21 and 47 of the Charter. The legal protection of the right to non-discrimination invoked before a judge is guaranteed in a dispute between two individuals. On the other hand, the CJEU does not apply such a protective regime to Article 10. Moreover, related to the vague terms of the Article, the protection of this freedom is assured at the minimum level and requires a combination with another instrument (such as rules on discrimination or specific rules on religious practices). Article 10 has not yet been applied as a provision in its own right fit to disapply national legislation in a dispute between private individuals. Nevertheless, through Article 9 ECHR and Article 52 CFREU, it is necessary to interpret the legal value of religious freedom at the level of the European Union. It is an essential freedom effectively protected by the ECtHR, considered as a foundation of democratic society. Viewed as a vital element in shaping the identity of believers and their conception of life46 but also as a precious asset for atheists, agnostics, sceptics and the unconcerned, freedom of religion has been elevated to the status of substantive right of the Convention.47 Pluralism depends on this recognition. B.  Field of Application It appears, in the few CJEU cases, that claimants invoking freedom of religion are not mainly workers or individuals. Article 10 is mentioned in several cases that fall into various fields: the situation of refugees seeking asylum, religious practices having to deal with state regulation and public space control, labour relations and the expression of ­freedom of religion. The case law emphasises first of all the specificity of the violation of this freedom, in the situation of refugees48 and of access to public space49 by r­ eligious organisations. 45 CJEU, 17 April 2018, C-414/16, Egenberger, para 76. 46 ECtHR, 20 September 1994, No 13470/87, Otto Preminger Institut v Autriche. 47 See cases Kokkinakis (n 32) and Otto Preminger Institut (n 46). 48 cf CJEU, 5 September 2012, C-71/11 and C 99/11, Bundesrepublik Deutschland v Y et Z; CJEU, 26 February 2015, C-472/13, Andre Lawrence Shepherd v Bundesrepublik Deutschland. 49 C-426/16, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen et al v Vlaams Gewest.

Article 10  283 The economic dimension of the Community and then the EU impose a specific interpretation of religion in the workplace. Individual freedom of ­religion was first not taken into account with regard to labour affairs but rather in terms of the rights of refugees who could not exercise their religion in the respective country. Nevertheless, an act of persecution is required so that­ Article 10 is not invoked directly, even if religion can be a reason for persecution. In light of CJEU case law, only certain forms of serious interference with ­freedom of religion can be considered an act of persecution falling within the scope of the Geneva Convention on the Status of Refugees (in 1951).50 Collective freedom of religion was not recognised as such in the Community area but could be protected in an indirect manner, insofar as the religious organisation is an employer. Cases show that religious organisations have sought to avail themselves of economic freedoms. In order to benefit from EU provisions it was necessary to consider religious activity as an economic activity. To the question of the status of a religious community worker, in order to benefit from a residence permit, the Court questioned the quality of the community’s employer. The CJEU maintained that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work.51

C.  Specific Rights Religion as protected by the Convention and the Charter is not interpreted restrictively and cannot be limited to the main religions. The term ‘belief’ is used for this purpose. Regarding minority religions and new religious groups called ‘sects’, the ECtHR applies equal protection under the Convention.52 The CJEU maintains the same analysis, so that religion, in an individual perspective, is meant in a broad sense,53 covering both the fact of having a belief and the manifestation of religious faith in public. The State is required to be neutral when it comes to interpreting the legitimacy of religious beliefs. The right to conscientious objection recognised in Article 10(2) restricts the State’s margin of appreciation. Pacifist convictions

50 CJEU, 5 September 2012, C-71/11 and C 99/11, Bundesrepublik Deutschland v Y et Z; CJEU, 26 February 2015, C-472/13, Andre Lawrence Shepherd v Bundesrepublik Deutschland. 51 CJEU, 5 October 1988, C-196/87, Udo Steymann v Staatssecretaris van Justitie. 52 ECtHR, 6 November 2001, No 53430/99, Fédération chrétienne des témoins de Jéhovah de France v France. 53 CJEU, 14 March 2017, C-157/15, Samira Achbita et Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, para 28.

284  Fleur Laronze were originally excluded from Article 9 ECHR when the State imposes an ­obligation to perform armed service. But the introduction in Article 10 of the right to conscientious objection is considered by the ECtHR to be an explicit addition [that is] no doubt deliberate and reflects the unanimous ­recognition of the right to conscientious objection by the Member States of the ­European Union, as well as the weight attached to that right in modern European society.54

According to the ECHR, the State has a positive obligation to uphold individuals’ freedom of religion.55 However, with regard to employment, the ECtHR refuses to guarantee an absolute and unconditional freedom of religion to workers. Ritual precepts or religious practices may contradict occupational duties and workers have the obligation to observe the rules governing the workplace. The employer may take measures that provide ‘un accomodement raisonnable’. Furthermore, Article 9 ECHR as such does not guarantee workers the right to perform their religious duties. The ECtHR recognises the need for someone to produce evidence of their religious convictions if they seek to rely on a ­particular exemption56 and, in the public sector, the need to refrain from taking part in the activities of a religious movement57 or from wearing a religious symbol58 in accordance with the principle of secularism. The point must also be raised that the State has negative obligations vis-à-vis religious organisations that can have consequences for workers’ collective rights. These include the obligations not to impede the normal functioning of religious organisations and to respect the autonomy of religious organisations. i.  Worker’s Individual Rights Based on Article 10 a.  Access to and Termination of Employment; Working Conditions The ECtHR’s previous jurisprudence reveals a search for objectivity as regards decision-making criteria concerning whether religion was or was not a direct factor in an employer’s decision. For example, in a case from 1996, a Finnish railway agent had been dismissed for not respecting his hours of work on the grounds that the Seventh-Day Adventist Church, to which he belonged, prohibits its members from working on Fridays after sunset.59 Thus, the applicant was 54 ECtHR, 7 July 2011, No 23459/03, Bayatyan v Armenia, para 106. Cf. G. Gonzalez, ‘Article 10. Liberté de pensée, de conscience et de religion’ in F Picod and S Van Drooghenbroeck (eds), Charte des droits fondamentaux de l’Union européenne (Bruxelles, Editions Bruylant, 2018) 421. 55 While the worker had the choice of resigning from his job to preserve his freedom of conscience (ECtHR, 3 December 1996, No 24949/94, Konttinen v Finland), the Court judged, evolving its ­position, that the protection of freedom of religion involved the recognition of the worker as a ‘creditor’ of a positive obligation of the State. 56 ECtHR, 13 July 2006, No 55170/00, Kosteski v the Former Yugoslav Republic of Macedonia. 57 ECtHR, 13 February 2003, Nos 41340/98, 41342/ 98, 41343/98 and 41344/98, Refah Partisi (the Welfare Party) and others v Turkey, para 94. 58 ECtHR, 26 November 2015, No 64846/11, Ebrahimian v France. 59 ECtHR, 3 December 1996, No 24949/94, Konttinen v Finland.

Article 10  285 not dismissed because of his religious beliefs, but for refusing to respect his working hours. In another case, from 1997, it was ruled that no interference in freedom of religion arises from the obligation to work five days a week, including rotating Sundays. Since then, the refusal of an employee to work on Sunday may justify their dismissal under the authority of the employer.60 The CJEU had to deal with this question in the famous Vivian Prais case.61 A Jewish candidate for the job of legal/linguistic expert in the Council was not able to take part in the recruitment test for religious reasons (the date of the test corresponded to the first day of the Jewish feast of Shavuot [Pentecost]). The candidate’s claim was rejected because if it is desirable that an appointing authority inform itself in a general way of dates which might be unsuitable for religious reasons, and seeks to avoid fixing such dates for tests, nevertheless … neither the Staff Regulations nor the fundamental rights already referred to can be considered as imposing on the appointing authority a duty to avoid a conflict with a religious requirement of which the authority has not been informed.62

It has also been held that a candidate without religious affiliation applying for a job requiring membership of a particular religion must be protected through his right to non-discrimination against a religious community exercising its normative autonomy.63 A judicial review is required in order to verify whether the religion can justify the decision of the religious organisation in accordance with Article 4 of Directive 2000/78/CE. In the Egenberger case the dispute was not contemplated in terms of the protection of the jobseeker’s right to believe (or atheism).64 b.  Wearing Religious Symbols In the same way, when the ECtHR refers to the margin of appreciation of the State and retreats behind the control of the national judge or the national legal measure, the worker’s religion (and its infringement) is no longer at stake in the judicial debate, which is illustrated by the absence of a violation found in situations in which the dismissal results from the expression of the worker’s personal beliefs. The famous case Eweida et al is topical here.65 It was held that there had been no violation of the freedom of religion and no discrimination, with the exception of the situation of Mrs Eweida. In Chaplin, in Ladele and



60 ECtHR,

9 April 1997, No 29107/95, Stedman v UK. 27 October 1976, C-130/75, Vivien Prais v Council of the European Communities. 62 CJEU, 27 October 1976, Vivien Prais v Council of the European Communities, para 18. 63 CJEU, 17 April 2018, C-414/16, Egenberger, para 55. 64 In the same way : CJEU, 11 September 2018, C-68/17, IR v JQ. 65 ECtHR, 15 January 2013, Eweida (n 29). 61 CJEU,

286  Fleur Laronze in McFarlane, the State was competent to strike a balance between the interest of the worker (expressing their freedom of religion) and the employer’s interest. The protection of health and safety in the hospital (Chaplin), the promotion of equal opportunities and requiring all its employees to act in a way that does not discriminate against others (Ladele) and the implementation of the policy of providing a service without discrimination (McFarlane) were legitimate aims, so that the ECtHR could conclude that there was no infringement of the freedom of religion and no discrimination in the employer’s decision. In contrast, the Eweida case was characterised by violation of Articles 9 and 14 ECHR because of the employer’s decision (to go to work displaying her cross). For the ECtHR, there was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.66

ii.  Workers’ Collective Rights Versus Article 10 Because of its status as a religious organisation a church can limit the collective rights of its workers. For example, a religious organisation can oppose the formation of a trade union by a group of orthodox priests and of lay people that it employs.67 The ECtHR concluded that there is no violation of Article 11 ECHR on the freedom of assembly and association. According to ECtHR case law, a religious organisation can make its own rights prevail over those individually recognised to its members.68 However, collective labour rights cannot suffer from such an imbalance even if they are part of a proportionality report already asserted in the Viking,69 Laval70 and European Commission v Federal Republic of Germany judgments.71 D. Limitations Different conflict rules can solve conflicts between the freedom of religion and other interests. The principle of proportionality ensuring a link between the

66 ibid, para 94. 67 ECtHR, 9 July 2013, No 2330/09, Sindicatul Păstorul cel Bun v Romania. 68 For a critical assessment, see F Dorssemont, ‘Is a Prohibition of a Trade Union of Clergymen Promoting Democratic Values Truly Necessary in a Democratic Society?’ (2013/2014) Annuaire Droit et religion 637–43. 69 CJEU, 11 December 2007, C- 438/05, Viking, para 46. 70 CJEU, 18 December 2007, C-341/05, Laval, para 94. 71 CJEU, 15 July 2010, C-271/08, European Commission v Federal Republic of Germany, para 44.

Article 10  287 interests is enshrined in the Charter. The principle of non-discrimination, as well as the reference to national law are mobilised in the litigation of labour law or the free movement of persons. More and more, the entanglement of the principles of non-discrimination and proportionality is at work in the case law of the CJEU, in light of that of the ECtHR. i.  Limitations with Regard to the Principle of Proportionality With regard to the principle of proportionality, several conditions have to be fulfilled in order to conclude to the violation of Article 9 ECHR. First, the Court will verify whether the claim enters within the scope of Article 9 ECHR. Second, the infringement of Article 9 ECHR has to be concrete, caused by a national measure or employer’s decision. Thereafter, the interference may be constituted a violation of Article 9 ECHR. This is assessed by reference to three  tests: whether the interference pursues a legitimate aim,72 whether the interference is ‘prescribed by law’ and whether the interference is ‘necessary in a democratic society’.73 The reasoning of the CJEU proceeds in two ways, depending on whether freedom is limited by the exercise of another freedom (an employer’s decision based on one of their freedoms) or that the freedom is exercised abusively by the worker. If the normative framework can apprehend these two situations (­unlawful interference with freedom of religion and the abusive exercise of freedom of religion), the CJEU was confronted only with the first situation, the second mobilising national provisions. According to the first situation, the identification of the freedom invoked by the person concerned falls within the scope of Article 10, reinforced by the provisions on discrimination on grounds of religion (here the aim is to protect the exercise of freedom which is violated by the exercise of another freedom). The CJEU applies the principle of proportionality in a field in which it is not traditionally mobilised.74 The principle of non-discrimination follows its own logic and can be applied in an autonomous way so that there is no need to balance the right to non-discrimination of workers with the right of selfdetermination of the religious organisation. In doing so, the CJEU displays a form of reluctance to settle a dispute that concerns the religious organisation in which it refuses to interfere. Its lack of creativity and pusillanimity 72 Listed in Art 9(2), namely the interests of public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others. 73 VJ Murdoch, Freedom of Thought, Conscience and Religion. A Guide to the Implementation of Article 9 of the European Convention on Human Rights (Belgium, Human Rights Handbook, No 9, 2007). 74 CJEU, 17 April 2018, C-414/16, Egenberger, para 52. See R McCrea, ‘Salvation Outside the Church? The ECJ Rules on Religious Discrimination in Employment’, EU Law analysis, website: http://eulawanalysis.blogspot.fr/2018/04/salvation-outside-church-ecj-rules-on.html?m=1.

288  Fleur Laronze are ­demonstrated by the fact that the Court adopts the same reasoning as the ECtHR and by rejecting the mechanism conventionally used in cases of invoking anti-discrimination law. The CJEU seems strongly inspired by the case law of the ECtHR not only in the interpretation of the texts but in its reasoning. When it is found that the religious community has a legitimate right to decide in the employment relation and to restrict the candidate or worker’s rights, although based on the principle of non-discrimination, the CJEU’s solution echoes the absolute recognition of the collective freedom of religion exercised by the churches. While the individual freedom of religion is erased by the CJEU when the proper functioning of the enterprise – in other words, freedom of ­ enterprise – is at stake, the collective freedom of religion is taken into account here even if the principle of non-discrimination is applied. Nevertheless, in terms of a conflict of rights collective freedom of religion and individual freedom of religion are less at odds than the economic rights of the employer and the social rights of the worker. The freedom of religion of the worker takes on the guise of a social right which, according to the jurisprudence of the CJEU, may be limited by the actual exercise of an economic right. On the other hand, the freedom of religion of an organisation (as an employer) is expressed in the manner of an economic right and prevails in the normative space that it determines. In the second situation, the determination of the rules likely to resolve the dispute is not specified in Article 10 (here it is a question of possibly limiting its exercise or sanctioning its abuses by the referral to national law, within the framework set by the European Union). This reasoning emphasises the limits of Article 10, which, however, tends to be mitigated by the use of the provisions on discrimination (Directive of 27 November 2000). ii.  Limitations with Regard to the Principle of Non-discrimination Only a few cases illustrate the issue of freedom of religion in the workplace. In some instances, the relevant litigation opposes the freedom of religion of the worker and the self-determination of an organisation, but in most instances the worker’s freedom of religion is limited by a decision of an employer. The freedoms of establishment and to provide services are covertly present. But the precedents of Viking and Laval, which gave rise to a discussion of economic freedoms and fundamental social rights – and much criticism – were followed by endless debates on the Posted Workers Directive. We might suppose that the CJEU only reluctantly addressed the economic freedoms in order to avoid a similar political debate on the freedom of religion. The basic principle applied in combatting discrimination is equal treatment in employment. It is thus incumbent on employers not to discriminate on the grounds of religion. A ­ rticle  4 Directive 2000/78/EC provides for three exceptions, however. Direct discrimination shall not be deemed to have occurred if the nature of the particular occupational activities concerned or the context in which they are carried out requires a genuine and determining occupational characteristic,

Article 10  289 provided that the objective is legitimate and the requirement is proportionate.75 For example, in a multi-confessional situation such as a nursery, which welcomes children from families of different religious persuasions, it may appear necessary to prohibit the wearing of religious symbols or clothing by the workers. But in order to consider this prohibition proportionate, this requirement can be limited to workers in contact with customers or clients, in this instance the parents. A second exception is laid down by Article 4(2) Directive 2000/78/EC. The religious organisation can impose an ethos on its members so that infringement of its religious rules by workers may be sanctioned. It is permissible not to hire a candidate because they do not comply with the religious rules. Nevertheless, this kind of exception that allows disqualification of the discrimination is based on conditions established by the State. And in any case, the relevant characteristic of the religious organisation must constitute a genuine (necessary because of the importance of the occupational activity), legitimate (establishing a connection with the religion) and justified (in view of the risk of causing harm to this religion) occupational requirement. Thus, a teacher cannot lawfully be hired in a Catholic school if he or she is not Catholic or can be dismissed in case of ­violation of the religious rules.76 For the ECtHR, a religious organisation’s self-determination is guaranteed. Going further, it considers that collective freedom of religious expression is violated if the State does not provide places of worship.77 But the ECtHR insists on judicial control so that a decision to dismiss based on a breach of a duty of loyalty cannot be based on the employer’s right of autonomy without having regard to the nature of the post in question and without properly balancing the interests involved with the principle of proportionality.78 In the Egenberger case, the CJEU applied a similar interpretation of the autonomy of a religious organisation in order to establish the validity of the rejection of a job ­application.79 Also and in the same way, it is sought by the judge if religion is an occupational requirement that is genuine, legitimate and justified in the light of the organisation, for a doctor exercised by a person dismissed by this religious organisation.80 The third exception is provided by Article 2(5) Directive 2000/78/EC. National measures shall establish distinctions between people and limit the 75 Art 4, Directive 2000/78 of 27 November 2000, para (1). 76 Cf ECtHR, 3 February 2011, No 18136/02, Siebenhaar v Germany. 77 ECtHR, 24 May 2016, No 36915/10 and 8606/13, Association for Solidarity with Jehovah’s Witnesses v Turkey. 78 ECtHR, 23 September 2010, No 1620/03, Schüth v Germany, para 69. 79 CJEU, 17 April 2018, C-414/16, Egenberger, para 55: ‘a church (or other organisation whose ethos is based on religion or belief) may impose a requirement related to religion or belief if, having regard to the nature of the activity concerned or the context in which it is carried out, “religion or belief constitute[s] a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos”’. 80 CJEU, 11 September 2018, C-68/17, IR v JQ, para 61.

290  Fleur Laronze e­ xercise of individual freedoms when such measures are necessary – in a democratic ­society  – for public security, the maintenance of public order or the prevention of criminal offences, the protection of health and the protection of the rights and freedoms of others. For example, the ban on the veil can be justified in terms of safety and health in the case of a hospital worker in contact with patients81 or by public security and respect for ‘vivre ensemble’.82 This may be illustrated by the cases of teachers in public schools prohibited from wearing a headscarf. According to the ECtHR, the ban was aimed at ensuring the neutrality of the State’s primary education system.83 In the same way, a public hospital is allowed to refuse to renew the contract of a worker who refuses to stop ­wearing the Muslim veil in order to guarantee the neutrality and impartiality of the State.84 In the presence of indirect discrimination, the rules are different. Indirect discrimination on the grounds of religion is constituted where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief at a particular disadvantage compared with other persons.85 This would be the case as regards an internal rule increasing remuneration for all services except a service provided mainly by workers practising the Muslim religion, for instance. This decision can be considered indirect discrimination founded on religion because most of the workers not covered by the relevant measure are Muslims. Nevertheless, Article 4 Directive 2000/78/EC provides for the exclusion of indirect discrimination if the decision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The CJEU dealt with this issue in the Achbita and Bougnaoui cases. In the Achbita case,86 a receptionist was dismissed for refusing to remove her veil despite the existence of a rule (first unwritten and thereafter included in the internal regulations of the enterprise) that imposed political, philosophical and religious neutrality in the company. For the CJEU, this rule applies indifferently of any manifestation of beliefs.87 Thus there was no direct discrimination. However, difference of treatment based on religion may characterise indirect discrimination if it is not justified by a legitimate aim and if the means of achieving that objective are not appropriate. Indirect discrimination may be constituted 81 Cf ECtHR, 15 January 2013, No 59842/10, Chaplin v United Kingdom. 82 Cf ECtHR, 26 June 2014, No 43835/11, SAS v France; 11 July 2017, No 37798/13, Belcacemi and Oussar v Belgium; 11 July 2017, No 4619/12, Dakir v Belgium. 83 ECtHR, 15 February 2001, No 42393/98, Dhalab v Switzerland; ECtHR, 24 January 2006, No 65500/01, Kurtulmus v Turkey. 84 ECtHR, 26 November 2015, No 64846/11, Ebrahimian v France. 85 Article 2, Directive 2000/78/EC of 27 November 2000. 86 CJEU, 14 March 2017, C-157/15, Achbita. 87 The Court considers ‘it must be held that the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner’ (CJEU, 10 March 2009, C‑169/07, Hartlauer, para 55. CJEU, 12 January 2010, C‑341/08, Petersen, para 53).

Article 10  291 if the apparently neutral obligation imposed by the internal rule results in fact in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.88 One possible criticism of the court’s reasoning is its attribution to the employer of major prerogatives with regard to workers’ freedoms through the internal rules. The freedom to conduct a business was one of the legal bases proposed by Advocate Kokott in her conclusions. Article 16 of the Charter on the freedom to conduct a business is summoned by the CJEU even though no party to the case had invoked it.89 In the Bougnaoui case rendered the same day, the worker was dismissed because of her refusal to remove her veil when sent on assignment to customers of the employer Micropole.90 The question was whether the employer was ­entitled to comply with the wishes of their clients who had demanded the removal of the veil during the worker’s performance of their duties. In Feryn91 a decision by customers was deemed to be openly discriminatory and to justify an appeal. However, in Bougnaoui the CJEU held that there was no direct ­discrimination because the worker had to respect an internal rule that prohibited the wearing of any visible sign of political, philosophical or religious beliefs. But indirect discrimination is an option. Therefore the Court had to verify whether the dismissal was based on the existence of an internal rule and if not, whether the willingness of an employer to take account of a customer’s wishes no longer to have services provided by a worker who, like Ms Bougnaoui, has been assigned to that customer by the employer but who wears an Islamic headscarf constitutes a genuine and determining occupational requirement.92 The CJEU insisted that it is not the ground on which the difference of treatment is based but a characteristic related to that ground that must constitute a ­genuine and determining occupational requirement.93 The concept of a ‘genuine and determining 88 CJEU, 14 March 2017, C-157/15, Achbita, para 44. 89 Opinion AG, 31 May 2016, C‑157/15, Achbita, para 81. 90 CJEU, 14 March 2017, C-188/15, Bougnaoui. 91 CJEU, 10 July 2008, C‑54/07, Feryn, para 16. The Court merely ruled that the fact that an employer states publicly that he will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination within the meaning of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180, p 22). 92 CJEU, 14 March 2017, C-188/15, Bougnaoui (n 90), para 34. 93 The Court adds that in accordance with recital 23 of Directive 2000/78/EC, it is only in very limited circumstances that a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement and according to the actual wording of Art 4(1) Directive 2000/78/EC, such a characteristic may constitute such a requirement only ‘by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out’ (CJEU, 14 March 2017, C-188/15, Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v Micropole SA, formerly Micropole Univers SA, para 39). See CJEU, 12 January 2010, C‑229/08, Wolf, para 35; CJEU, 13 September 2011, C‑447/09, Prigge and Others, para 66; CJEU,

292  Fleur Laronze occupational requirement’, within the meaning of that provision, refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer.94 For Advocate Sharpston, the situation in that case could lead to direct d ­ iscrimination.95 Ms Sharpston adopted a humanistic approach in accordance with which coercion imposed by an employer must not interfere with an aspect of religious practice that the worker considers essential.96 E. Enforcement Trade unions should be able to invoke their rights against a religious organisation, namely the freedom of thought and conscience, based on Article 10. Moreover, Article 17(2) TFEU grants EU respect for the status under national law of philosophical and non-confessional organisations. The trade unions are aimed and could be mobilised to use this article. Protection of freedom of religion related to discrimination may be better protected by class actions. Class actions, originating in the United States, were brought to Europe in particular to increase the chances of success of actions brought by job candidates. The Islamic headscarf – to take a topical example – but also other visible religious signs are strong grounds for discrimination. New inspiration for legal measures should be sought in countries outside Europe. III. CONCLUSIONS

Article 10 is limited by the effect currently given to the Charter. Freedom of religion can be safeguarded by means of discrimination legislation, but there is no combined interpretation involving Articles 10 and 21 related to discrimination in the Charter. This illogical approach means that the scope of Article 10 is restricted. Social Europe will be impoverished by the lack of direct horizontal effect of the Charter. Even though there is some recognition of this effect in relation to some articles, the CJEU fears that further development in this direction would open up a Pandora’s box. Article 52 of the Charter gives a relatively broad scope to Article 10 through the prism of Article 9 ECHR and ECtHR case law. But the balance of interests 13 November 2014, C‑416/13, Vital Pérez, para 36; CJEU, 15 November 2016, C‑258/15, Salaberria Sorondo, para 33. 94 CJEU, 14 March 2017, C-188/15, Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v Micropole SA, formerly Micropole Univers SA, para 40. 95 Opinion AG, 13 July 2016, C‑188/15, Bougnaoui, para 88. 96 ibid, para 128.

Article 10  293 mechanism that the ECtHR applies can legitimise the restriction of religious freedom and so is less protective than the principle of non-discrimination. Article  52 (3) adds that the CJEU must interpret the rights of the Charter in accordance with the corresponding rights of the Convention, provided, however, that EU law does not grant ‘more extensive protection’ than the Convention. This extensive protection could be obtained on the basis of discrimination ­legislation. Recent cases on workers’ freedom of religion have encouraged application of the principle of non-discrimination. But the introduction of freedom of enterprise and the validity of internal company rules as grounds for limiting workers’ rights appears excessive and is likely to mean that freedom of enterprise will trump freedom of religion, with Goliath turning the tables on David. We can only hope that the CJEU will restore the balance of interests to protect the weaker party in this balance of power.

294

14 Article 11 – Freedom of Expression and Information ELLIOT COBBAUT

Article 11 Freedom of expression and information 1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2.  The freedom and pluralism of the media shall be respected.

EXPLANATIONS Article 11 corresponds to Article 10 of the European Convention on Human Rights, which reads as follows: 1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Pursuant to Article 52(3) of the Charter, the meaning and scope of this right are the same as those guaranteed by the ECHR. The limitations which may be imposed on it may therefore not exceed those provided for in Article 10(2) of the Convention, without prejudice to any restrictions which the competition law of the Union may

296  Elliot Cobbaut impose on Member States’ right to introduce the licensing arrangements referred to in the third sentence of Article 10(1) of the ECHR. Paragraph 2 of this Article spells out the consequences of paragraph 1 regarding freedom of the media. It is based in particular on Court of Justice case-law regarding television, particularly in Case C-288/89 (judgment of 25 July 1991, Stichting Collectieve Antennevoorziening Gouda and others [1991] ECR I-4007), and on the Protocol on the system of public broadcasting in the Member States annexed to the EC Treaty and now to the Treaties, and on C ­ ouncil Directive 89/552/EC (particularly its seventeenth recital).1

I. INTRODUCTION

A.  Context and Main Content The freedom of expression and information is enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (CFREU), which ­Article 6(1) TEU recognises as having the same legal value as the Treaties. This right is recognised by several regional and international instruments protecting human rights and enjoys broad protection in Europe. At the national level, it is often awarded constitutional protection. At European level, it is protected by the European Convention on Human Rights (ECHR) as interpreted by the ­European Court of Human Rights (ECtHR). Beyond those main instruments, several other provisions recognise the right to freedom of expression. B.  Relationship to Other Provisions of the Charter The right to freedom of expression is considered a cornerstone in the field of fundamental rights because it is not merely a right in itself, but also a prerequisite for the exercise of other fundamental rights.2 In its collective dimension, Article 11 is linked with Article 12, which enshrines the freedom of assembly and of association.3 Freedom of expression

1 Explanations relating to the Charter of Fundamental Rights, OJEU, 14 December 2007, No C 303 [s l] ISSN 1725-2423, 17–35. 2 DJ Harris, M O’Boyle and C Warbick, Law of the European Convention on Human Rights 3rd edn (Oxford, Oxford University Press, 2014) 613. 3 The Committee on Freedom of Association reaffirmed the relationship between those rights: ‘While having stressed the importance which it attaches to freedom of expression as a fundamental corollary to freedom of association and the exercise of trade union rights on numerous occasions, the Committee also considers that they must not become competing rights, one aimed at eliminating the other’ (Case No 2683 (United States), Association of Flight Attendants – Communications Workers of America (AFA-CWA) and American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), para 584).

Article 11  297 can be considered a basis of the freedom of assembly. Freedom of association has an existence in its own right but can be considered a part of the freedom of expression. It is a way to manifest the freedom of expression and a lever for its collective exercise. In its case law, the ECtHR interprets this right in light of the freedom of expression.4 In addition, there is a link with Article 28 because the right to collective action enshrined in this article is also a protected form of collective expression.5 Article 11 also enshrines the right to receive information. In this respect, there is a link with Article 27, which provides a right to information and consultation within the undertaking for the workers.6 In its more individual dimension, Article 11 represents an extension and an expansion of the freedom of thought, conscience and religion, enshrined in Article 10.7 People are free to think, to cherish their conscience and religion, to hold opinions and to express them individually or collectively. Therefore, the right enshrined by Articles 10, 11 and 12 are linked.8 There is also a link with Article 21, which prohibits all forms of discrimination based on religion and belief but also political or other opinions. People can express their beliefs or political opinions without being discriminated against.9 Freedom of expression is linked with the freedom of arts and sciences. ­Article  13 protects, among others, people whose job is artistic or academic. They are free when they create, interpret, release or exhibit a piece of art. The Explanations related to this Article state that this is ‘deduced primarily from the right to freedom of thought and expression. It … may be subject to the limitations authorised by Article 10 of the ECHR’. Article 11 is also linked with Article 7, which provides the privacy right, and Article 8, which provides the right to the protection of personal data. The exercise of the freedom of ­expression by one person may negatively affect the privacy of another or the

4 The ECtHR pointed out that ‘one of the aims of freedom of assembly is to secure a forum for public debate and the open expression of protest. The protection of the expression of personal opinions … is one of the objectives of the freedom of peaceful assembly enshrined in Article 11’ (App  No  26986/03, 15 November 2007, Galstyan v Armenia; App No 33268/0, 17 July 2008, Ashughyan v Armenia; App No 28955/06, 28957/06, 28959/06 and 28964/06, 12 September 2011, Palomo Sánchez and others v Spain at paras 52 and 58–62; App Nos 26005/08 and 26160/08, 12 June 2012, Tatár and Fáber v Hungary). 5 The Schmidberger case is interesting. In this case, the right to freedom of expression, a highly protected civil right, was ‘combined’ with the freedom of association. This resulted in better protection of the latter right for the activists who had blocked a major road, balancing it with the fundamental economic freedom of the company to move goods (CJEU, 12 June 2003, C-112/00, Schmidberger v Austria, ECR 2003 I-05659.) 6 This link is of particular importance because Art 11 has direct effect contrary to Art 27. 7 D Gomein, D Harris and L Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (Strasbourg, Council of Europe Publishing, 1996) 301. 8 Harris, O’Boyle and Warbick (n 2) 710. 9 In the Eweida case, the ECtHR held that the United Kingdom had violated its duty to ensure protection of the right to manifest religion or belief (ECtHR, 15 January 2013, Nos 48420/10, 59842/10, 51671/10 and 36516/10, Eweida and Others v United Kingdom).

298  Elliot Cobbaut protection of his personal data, so there is potential for conflict between those fundamental rights.10 Finally, there is a link between Article 11 and Article 30 that provides for protection in the event of unjustified dismissal.11 C.  Relationship to Other Relevant Instruments i.  EU Instruments As regards paragraph 1 of Article 11 EU law in this field is almost non-existent. A reference can be made to Article 21 and 30 in relation to non-discrimination on ‘political opinion’ and dismissals related to it. Moreover, it might be noted that Recital 8 of the Community Charter of Fundamental Social Rights of Workers requires that discrimination be combated, among other things on the grounds of opinion.12 The recent Trade Secret Directive13 is aimed at ­protecting companies’ trade secrets. To this end, it entitles complainants to pursue the illegal obtaining, use and disclosure of certain information considered to be a trade secret. In order to balance the protection of such secrets and the freedom of expression, the text provides some exceptions. More recently, the European Commission published a proposal for a directive on the protection of persons reporting breaches of Union law to protect them from retaliation. As regards paragraph 2, which spells out the consequences of paragraph 1 concerning the freedom of the media, the Explanations emphasise that it is based on the case law of the Court of Justice of the European Union (CJEU) regarding television, on the Protocol on the System of Public Broadcasting in the Member States annexed to the TEU and on Directive 89/552/EC.14

10 In 2012, the ECtHR established the way to deal with the conflict between the rights to privacy and freedom of expression and to determine whether a balance exists between those rights, according to five criteria: the contribution to the general interest, the notoriety of the person concerned, the publication’s form and consequences and the severity of the imposed sanction (ECtHR, 24 June 2014, No 59320/00, Von Hannover v Allemagne, para 75). In this conflict, the ECtHR attaches great importance to the freedom of expression, notably in adopting a particularly extensive scope for the ‘general interest’. The preference of the Court seems to be for freedom of expression. 11 See the contribution of M Schmitt in this volume (ch 23 on Art 30 and protection in the event of unjustified dismissal). 12 It exists in Art 5 of the 1989 European Parliament Declaration of Fundamental Rights but has not achieved the status of an ‘EU instrument’. It has similar content to the first paragraph of Art 11 but underlines the importance of philosophical, political and religious information. In contrast, it does not explicitly enshrine the freedom and pluralism of the media. However, it enshrines in a second paragraph the freedom of art, science, research and academia and makes an even stronger link between those different freedoms. 13 Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, OJEU, 15 June 2016, 1–18. 14 EU Network of Independent Experts on Fundamental Rights, Commentary on the Charter of Fundamental Rights of the European Union, 2006, http://ec.europa.eu/justice/fundamental-rights/ files/networkcommentaryfinal_en.pdf.

Article 11  299 ii.  Council of Europe Instruments According to the Explanations, Article 11 corresponds to Article 10 ECHR guaranteeing everyone’s right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas, without interference by public authority. According to paragraph 2, the exercise of these freedoms may be subject to restrictions. According to Article 52(3) CFREU and the respective Explanations, freedoms guaranteed by Article 11 CFREU and 10 ECHR have the same meaning and scope. The ECHR has been an important source of inspiration for the definition of the fundamental rights in the EU legal order and has inspired and influenced the convention drafting the Charter. The importance of this freedom has been emphasised in the same terms by both the ECtHR,15 notably in Handyside,16 and the CJEU in Schmidberger17 and ­Patriciello.18 ­Article 10 ECHR was originally written with regard to the relationship between citizens and public authorities.19 There has been a progressive recognition of its applicability in private relations, including to the workplace in the public and private sectors.20 The European Social Charter also mentions specific aspects of this freedom in terms of the right to be informed of health risks, worker’s rights to information, or the right of migrant workers to receive training in their own language.21 iii.  ILO Instruments The Declaration of Philadelphia, in its Article 1, reaffirms that ‘freedom of expression and association are essential to sustained progress’. In addition, ILO Recommendation No 143 provides in Article 15: (1) Workers’ representatives acting on behalf of a trade union should be authorised to post trade union notices on the premises of the undertaking in a place or places 15 The Steering Committee for Human Rights has been entrusted to undertake work on the links between freedom of expression and other human rights and to conduct an analysis of the relevant ECtHR case law and other Council of Europe instruments. It will prepare a guide to good national practices on reconciling freedom of expression with other rights and freedoms. 16 ECtHR, 7 December 1976, No 5493/72, Handyside v United Kingdom, para 48. 17 CJEU, 12 June 2003, C-112/00, Schmidberger, ECR 2003 I-05659, para 79. 18 CJEU, 6 September 2011, C-163/10, Patriciello ECR 2011 I-07565, para 31. 19 A Seifert, ‘L’effet horizontal des droits fondamentaux: quelques réflexions de droit européen et de droit comparé’ (2012) Rev trim dr eur 801. 20 D Voorhoof and P Humblet, ‘The Right to Freedom of Expression in the Workplace’ in F  Dorssemont, K Lörcher and I Schömann (eds), The European Convention on Human Rights and the Employment Relation (Portland and Oxford, Hart Publishing, 2013) 241; ECtHR, Series A (1996), No 323, Vogt v Germany at para 53; ECtHR, 29 February 2000, App No 39293/98, Fuentes Bobo v Spain et para 38; and ECtHR, 26 February 2011, App No 29492/05, Kudeshkina v Russia at para 85; T Novitz and C Fenwick, ‘The Application of Human Rights Discourse to Labour ­Relations: Translation of Theory into Practice’ in C Fenwick and T Novitz (eds), Human Rights at Work (Oxford, Hart Publishing, 2010). 21 Steering Committee for Human Rights, ‘Analysis of the relevant jurisprudence of the European Court of Human Rights and other Council of Europe instruments to provide additional guidance on how to reconcile freedom of expression with other rights and freedoms, in particular in culturally diverse societies’, CDDH(2017)R87 Addendum III, 13 July 2017, p 5.

300  Elliot Cobbaut agreed on with the management and to which the workers have easy access. (2) The management should permit workers’ representatives acting on behalf of a trade union to distribute news sheets, pamphlets, publications and other documents of the union among the workers of the undertaking. (3) The union notices and documents referred to in this Paragraph should relate to normal trade union activities and their posting and distribution should not prejudice the orderly operation and tidiness of the undertaking. (4) Workers’ representatives who are elected representatives in the meaning of clause (b) of Paragraph 2 of this Recommendation should be given ­similar facilities consistent with their functions.

A survey from 201222 reaffirms the essential link between civil liberties and trade union rights and enumerates the fundamental rights that are necessary for the exercise of freedom of association, with particular reference to ­freedom of ­opinion and expression. In addition, the ILO Freedom of Association ­Committee considers that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and that workers, employers and their organisations should enjoy freedom of opinion and expression at their ­meetings, in their publications and in the course of other activities.23 iv.  UN Instruments Article 19 of the Universal Declaration of Human Rights24 protects freedom of expression, information and media more broadly than Article 11 CFREU. It guarantees everyone’s right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, regardless of frontiers. Article 19 of the International Covenant on Civil and Political Rights (ICCPR)25 protects also those different freedoms more broadly than Article 11 CFREU. It provides that freedom of expression may be restricted in order to respect the rights of reputation of others, the protection of national security, the public order and public health or morals. Article 20 ICCPR prohibits any propaganda for war, and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. General Comment No 34 of the UN Human Right Committee26 emphasised that the freedoms of opinion and expression form a basis for the full enjoyment of a

22 ILO, ‘Giving Globalization a Human Face’, International Labour Conference, 101st Session, 2012, pp 21–22. 23 ILO, ‘Committee on Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO’, 2006, Geneva, Fifth (revised) edition, para 154; ILO, ‘Freedom of Association and Collective Bargaining’, International Labour Conference, 81st Session, 1994, para 38. 24 Adopted by the UN General Assembly on 10 December 1948. 25 Adopted by the UN General Assembly on 16 December 1966. 26 CCPR/G/GC/34, 12 September 2011.

Article 11  301 wide range of other human rights but also an expression of the freedom of thought.27 Article 5d viii of the International Convention on the Elimination of all forms of Racial Discrimination28 provides that the parties commit themselves to prohibit racial discrimination and to ensure everyone’s right to equality in the enjoyment of the right to freedom of expression. II. CONTENT

A.  General Observations As outlined by the Explanations, there is an important relationship between Article 11 CFREU and Article 10 ECHR. Scope, meaning and limits of the ­Article 11 should be similar to those of Article 10 ECHR. The CFREU’s Preamble emphasises that the Charter reaffirms the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States. Article 11 corresponds to the constitutional provisions of the Member States, all guaranteeing freedom of expression as a key fundamental human right. Conversely, although not all Member State constitutions mention freedom of information, the constitutional interpretation treats it as a part of freedom of expression.29 B.  Field of Application Under Article 51 CFREU the Charter applies primarily to the institutions, bodies and agencies of the Union. Therefore, the application of Article 11 to employment relations is obvious in the relation between the EU and its officials. EU courts have confirmed since 1989 in different cases that EU officials enjoy the right to freedom of expression.30 Since 2001, different decisions have reaffirmed the position of the CJEU in the Connolly case, which recognised the right of EU officials to freedom of expression under Article 10 ECHR, without reference to Article 11 CFREU.31

27 Voorhoof and Humblet (n 20) 239. 28 Adopted by the UN General Assembly on 21 December 1965. 29 The freedom of media is also guaranteed by some constitutional or statutory provisions in Member State law. 30 CJEU, 13 December 1989, C-100/88, Oyowe and Traore v Commission, para 16. 31 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 43; CST, 8 November 2007, F-40/05, M Andreasen v Commission of the European Communities, para 251; GCEU, 13 December 2012, T-199/11 P, Strack v Commission, para 138; GCEU, 15 September 2017; T-585/16, Skareby v SEAE, para 77.

302  Elliot Cobbaut According to Article 51 CFREU, the provisions of the Charter are addressed to Member States only when they are implementing Union law. Therefore, in view of the almost total lack of EU legislation in that field, other workers than EU officials cannot in principle invoke Article 11. However, two texts were recently adopted concerning freedom of expression and the employment relation. First, the Trade Secret Directive of 8 June 201632 that set out a system in order to protect trade secrets. Second, the proposal for a directive on the ­protection of persons reporting breaches of Union law.33 In implementing these texts the Member States will be bound by Article 11 CFREU. C.  Specific Rights i.  Right to Freedom of Expression (Paragraph 1) This is the main right enshrined by this provision.34 It includes three rights: the freedom to hold opinions, which enjoys an absolute protection; the freedom to receive information; and the freedom to impart information and ideas, which is of immediate interest for the issue of worker involvement.35 Article 11 CFREU makes no distinction between particular forms or­ categories of expression, which would deserve protection more or less. Conversely, ECtHR case law has categorised expressions in accordance with their content to determine the extent of protection afforded.36 Concerning the material scope of this right, since 1976 and the Handyside case the ECtHR holds that ‘it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’.37 This right covers the expression of opinion, which means every kind of statement, true or false, communication of facts, value judgements, 32 Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, OJEU, L 157/1, 15 June 2016. 33 European Commission, Proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law, 23 April 2018, 2018/0106 (COD). 34 The freedom and pluralism of the media (para 2) constitutes a specific aspect of this right. 35 Steering Committee for Human Rights, ‘Analysis of the relevant jurisprudence of the European Court of Human Rights and other Council of Europe instruments to provide additional guidance on how to reconcile freedom of expression with other rights and freedoms, in particular in culturally diverse societies’, CDDH(2017)R87 Addendum III, 13 July 2017, p 12. 36 Among the particularly protected forms of expression, one finds information concerning the public interest (ECtHR, 26 April 1979, No 6538/74, Sunday Times v United Kingdom, para 65; ECtHR, 22 February 1989, No 11508/85, Barfod v Denmark; ECtHR, 21 July 2011, No 28274/08, Heinisch v Allemagne,) and on political issues (ECtHR, 8 July 1986, No 9815/82, Lingens v Austria; ECtHR, 23 May 1991, No 11662/85, Oberschlick v Austria, paras 57–61). Expression of a commercial nature is less protected; the ECtHR leaves national governments a wider margin of appreciation to restrict it and controls their limitation less meticulously (ECtHR, 20 November 1989, No 10572/83, Markt Intern Verlag GmbH and Klaus Beermann v Germany, para 33.) 37 ECtHR, 7 December 1976, No 5493/72, Handyside v United Kingdom, para 49.

Article 11  303 expressed through various means of communication.38 The CJEU adopted a similar definition in 2001 in describing the scope of freedom of expression of EU officials, which covers subjects addressed by European institutions’ activities and includes the right to express, orally or in writing, discordant or minor opinions in comparison with those defended by the EU.39 Its material scope is therefore large. ii.  Right to Information (Paragraph 1) Furthermore, Article 11(1) protects the whole process of forming and expressing opinions, including to receive and impart information. The freedom of information belongs to this process, as a condition of expression. It covers not only the right to receive any kind of information, but also the right to any use of the received appropriately requested information as well.40 iii.  Right to Freedom of Media (Paragraph 2) In paragraph 2, the freedom and pluralism of the media was made independent of other parts of freedom of expression. Media is an overall category including printed and electronic press, as well as the internet. The principle of pluralism is of great importance because it contains the aspect of an institutional guarantee of freedom of the media.41 D. Limitations Like almost all the fundamental rights, the right to freedom of expression is not absolute and can be subject to restrictions. This is the position held by the CJEU, as well as by the ECtHR.42 However, such restrictions are possible only under conditions fixed by the instrument that recognises the right. Therefore, there exist different ‘standard’ tests for assessing any restrictions that might be imposed on the fundamental rights. i.  Three Tests Pertaining to Limitations on the Right to Freedom of Expression The first is the classic EU standard test governing derogations from fundamental rights recognised in the EU legal order, according to which they can be subject 38 EU Network of Independent Experts on Fundamental Rights, ‘Commentary on the Charter of Fundamental Rights of the European Union’, 2006, http://ec.europa.eu/justice/fundamental-rights/ files/networkcommentaryfinal_en.pdf. 39 CJEU, 6 March 2001, C-274/99P, Connolly v Commission, para 43. 40 EU Network of Independent Experts on Fundamental Rights (n 38). 41 ibid. 42 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 148; ECtHR, 12 February 2008, No 14277/04, Guja v Moldova, para 70; ECtHR, 26 September 1995, No 17851/91, Vogt v Germany, para 53; ECtHR, 14 March 2002, No 46833/99, De Diegan atria v Spain, para 37.

304  Elliot Cobbaut to restrictions in the general or public interest, as long as those restrictions were not subject to disproportionate and unacceptable interference impairing the very substance of the protected right. The second is the test developed by the ECtHR-based Article 10(2) ECHR, which provides that the restriction must be prescribed by law and necessary in a democratic society43 to pursue one of the objects provided for by Article 10(2), notably to preserve the rights and legitimate interests of others. It is more precise and more demanding than the classic EU test.44 The necessity in a democratic society is linked with the proportionality condition that covers a number of different elements: whether the measure is appropriate to achieve its stated aim, whether no other, less intrusive effective measure is available and whether the measure is proportionate to its aim.45 The third is the one provided for by Article 52 CFREU, according to which restrictions must be provided for by law and respect the essence of the right. In addition, restrictions may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. If they correspond to rights guaranteed by the ECHR, their meaning and scope must be the same as those laid down by the ECHR. It is a standard that seems to combine elements of the first two. ­Article  53 CFREU adds that nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised by international agreement, including the ECHR. According to the Explanations this provision is intended to maintain the level of protection currently afforded, in particular by the ECHR. This protection therefore constitutes a minimum protection. It is important because the ECHR case law is significant in its scope and details. ii.  Limitation of the Freedom of Expression in the Employment Relation Due to the field of application of the Charter, CJEU case law deals only with cases concerning EU officials. Concerning restrictions on workers’ right to freedom of expression, there are two landmark CJEU cases: the Cwik case (2000) and the Connolly case (2001). In the Cwik case, the CJEU referred to Article 10(2) ECHR but applied the classic EU standard test in order to assess the propriety of a restriction on the right to freedom of expression and not the standard developed by the ECtHR. In the Connolly case, the CJEU quoted Article 10(2) ECHR and the conditions of the test developed by the ECtHR to

43 To be necessary in a democratic society, the restriction must answer a ‘pressing social need’ (ECtHR, 17 December 1976, No 5493/72, Handyside v the United Kingdom, para 48). 44 S Peers, ‘Human Rights Case Law of the European Court of Justice: January 2000 to March 2001’ (2001) Human Rights Law Review 160. 45 P Van Dijk and F Van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague, Kluwer Law International, 1998) 81.

Article 11  305 limit this right and made a full application of the ECHR’s principles concerning derogations of fundamental rights.46 The situation is clearer now because in almost all subsequent cases, EU courts have applied the ECHR’s test and referred to the Connolly case. The significance of this decision goes far beyond the case itself because it contains general remarks on the freedom of expression in an employment relationship. It has become the ground of restrictions on EU officials’ freedom of expression.47 In Connolly, the CJEU identified and used the three-stage ECtHR test in assessing Article 10(2) ECHR.48 First, the right to freedom of expression must be limited by law. This could be by provisions of the Staff Regulation (SR)49 concerning EU officials.50 According to the ECtHR standard test, to respect the legality condition legislative restrictions must be worded precisely. Nevertheless, it must be pointed out the CJEU paid little attention to that ­condition51 and held rather that provisions limiting the right to freedom of expression must be interpreted narrowly.52 Concerning the condition of finality, the CJEU held that, in terms of Article 10(2) ECHR, restrictions of freedom of expression must be justified by the legitimate aim of protecting the rights of others. For EU officials, the rights to protect are those of their institutions that are charged with the responsibility of carrying out tasks in the public interest and those rights derived from the interests of citizens, who must be able to rely on those tasks being performed effectively.53 The SR provisions also impose a duty of loyalty on officials to preserve the relationship based upon trust that must exist between the EU and its officials.54 The CJEU has held these aims to be legitimate.55 46 PR Beaumont, C Lyonns and N Walker, Convergence and Divergence in European Public Law (Oxford and Portland, Hart Publishing, 2002) 169. 47 See, for instance, CST, 23 October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC; GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 55. 48 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 41. 49 SR is the official ‘labour code’ setting out the rules of their employment, obligations, rights, pension, salary and any other matter concerning their relations with the EU institution or body they are working for. Some of its provisions limit the right of EU officials to exercise freedom of ­expression. 50 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 44; GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 54. The main provisions that limit the freedom of expression of EU officials are Arts 11, 12, 17a, 22a and 22b that impose duties that are a specific expression of the officials’ general duty of loyalty. 51 L Woods, ‘Freedom of Expression in the European Union’ (2006) 12 European Public Law 397. 52 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 53. 53 CJEU, 6 March 2001, C-275/99 P, Connolly v Commission, para 46; GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, para 158; CST, 30 June 2015, F-64/13, Z v CJEU, para 238. 54 CJEU, 6 March 2001, C-275/99 P, Connolly v Commission, para 47; CST, 23 October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC, para 64; GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 55. 55 CJEU, 6 March 2001, C-275/99 P, Connolly v Commission, paras 44 and 46; CST, 23 ­October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC, para 62; GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 78; GCEU, 13 December 2012, Strack v Commission, T-199/11 P, para 138.

306  Elliot Cobbaut If the two first conditions do not appear to be an issue, it is more difficult to decide proportionality. Under this condition, a judge must ensure that the right balance is achieved between the freedom of expression and legitimate interests.56 In this regard, the SR’s provisions seek to maintain a balance between the official’s rights and the interests of the institution they work for and, more generally, the interests of the European Union.57 In order to assess proportionality, the CJEU held that the restriction must be evaluated in light of all the circumstances of the case and their consequences.58 Some elements are frequently taken into account in order to assess the importance of the restriction and the risk of prejudicing the rights and interests of others. These elements include a worker’s rank, experience and responsibilities;59 whether or not the person concerned is expressing himself as an individual and not in the name of his institution; the audience and the visibility of the ­utterance.60 The form of expression is taken into account: injurious, virulent or violent terms are viewed more strictly by EU courts.61 The content of the expression is also taken into consideration. The fact that the expression questions fundamental orientations and decisions of the institution is more liable to harm the rights and interests of others. The rank and function of the targeted person 56 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 48; GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, para 159; GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 83. CST, 23 October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC, para 62. 57 CST, 23 October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC, para 62. 58 CJEU, 6 March 2001, C-275/99 P, Connolly v Commission, para 56; GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 82. The CJEU held that the relevant authorities would enjoy a certain margin of discretion in assessing the proportionality of the limitations, in particular concerning officials, as in Connolly (CJEU, 6 March 2001, C-275/99 P, Connolly v Commission, para 46; GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, para 158; CST, 30 June 2015, F-64/13, Z v CJEU, para 238). 59 The higher the official rank and management responsibilities, the bigger the risk someone’s utterances might pose the interests of the institution and the EU. The official must, particularly if he ranks quite high, exhibit behaviour that is above suspicion in order to preserve trust between him and the EU (GCEU, 8 November 2007, F-40/05, Andreasen v Commission, para 233). High ranking officials with responsibilities and experience are required to express their opinions in a dispassionate way, without excessive emotion (GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, para 170). The importance of the duty of loyalty varies according to the nature of the functions of the official (CJEU, 6 March 2001, CC-275/99 P, Connolly v Commission; CJEU, 13 December 2013, C-340/00 P, Commission v Cwik; CST, 23 October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC, para 62). 60 The risk will be considered less serious if the particular public to which the remarks are addressed is composed of experts who can tell the difference between the opinions of the official and the opinions of the institution (GCEU, 14 July 2000, T-82/99, Cwik v Commission, para 66). It is more serious if the statements are published in a book or newspaper and so receive a significant amount of publicity (CJEU, 6 March 2001, C-274/99 P, Connolly v Commission); CFEU, 7 March 1996, T-146/94, Williams v Court of Auditors, paras 66 and 67; GCEU, 8 November 2007, F-40/05, Andreasen v Commission, para 234; GCEU 13 January 2011, F-77/09, Nijs v Court of Auditors, para 67). 61 GCEU, 19 May 1999, T-34/96 and t-163/96, Connolly v Commission, para 130; Critics cannot exceed what is necessary to be understood (CST, 5 December 2012, F-88/09 and F-48/10, Z v CJEU, para 248; GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, para 159).

Article 11  307 are also taken into account.62 In addition, the more prejudicial the statement is, the more likely it is that the Court will take into account the documentation and accuracy of the statements.63 The importance of the restriction must also be taken into account. There may be a requirement to obtain prior authorisation in order to issue a publication or the obligation to follow a procedure. Limitations can be imposed only inside or even outside the exercise of specific tasks. Restrictions can also be a penalty imposed on the person who exercised his right (written warning, downgrading or, in the most serious cases, the termination of employment). The Court will assess the seriousness of the prejudice to the rights and interests of others, in accordance with which the sanction imposed will be assessed as proportionate or not.64 Therefore, both those elements play a role in the judge’s assessment of the proportionality of the restriction: the seriousness of the prejudice caused by the expression and as a consequence of the sanction on the interests of the workers.65 Concerning particular cases of prior restriction that impose the requirement of obtaining authorisation to express an opinion or of informing the employer before expressing an opinion, the CJEU has held that it deserves particular consideration.66 It is not in itself a violation of freedom of expression but due to the fact that it enables a significant restriction of the right, it is possible only in ‘exceptional cases’, must be interpreted strictly and be subject to judicial review to ensure ‘strict compliance’ with ECHR rules.67 For instance, the refusal of publication may take place only when it has been demonstrated that the matter is liable to seriously prejudice legitimate interests.68

62 Connolly was head of unit, with management responsibilities and his utterance contradicted the central policies espoused by the Community, which he was required to implement (CJEU, 6 March 2001, C-274/99 P, Connolly v Commission). In Meister v OHMI, it was taken into account that the official’s criticisms were related to essential aspects (the restructuring of the institution) and came from an official head of unit whose cooperation was required to ensure this restructuring (GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, para 167). 63 In Skareby v SEAE, it was held that the utterance containing degrading statements prejudicial to people’s honour, as well as accusations of harassment and favouritism, breached the duty of loyalty and cannot be considered merely discordant and a minority opinion (GCEU, 15 September 2017, T-585/16, Skareby v SEAE, paras 57–60, 95). 64 The CJEU ruled in Connolly that removal if the official from his functions was possible only if the breach of the SR obligations made it ‘impossible for any employment relationship to be maintained with the institution’ (CJEU, 6 March 2001, C-274 /99 P, Connolly v Commission, paras 59, 60 and 62); CST, 23 October 2013, F-80/11, Joaquim Paulo Gomes Moreira v ECDC, para 67. 65 GCEU, 28 October 2004, T-76/03, Herber Meister v OHMI, paras 167–68. 66 CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, paras 41–42. 67 ibid, para 53. 68 GCEU, 15 September 2017, T-585/16, Skareby v SEAE, paras 80–81; CJEU, 13 December 2001, C-340/00, Commission v Cwik, paras 17–18; CJEU, 6 March 2001, C-274/99 P, Connolly v Commission, para 53. A detailed assessment is necessary to motivate the refusal. A real threat must be demonstrated and not just a hypothetical risk (CFICE, 14 July 2000, T-82/99, Cwik v Commission, paras 57, 58 and 60.).

308  Elliot Cobbaut Another case concerns the interpretation of Articles 22a and 22b SR, which establish a procedure for EU officials to report any wrongdoing69 they may become aware of in the performance of their duties. It must be noted that the conditions they establish and the way they have been interpreted by the CJEU are close to the conditions imposed by ECtHR case law concerning­ whistleblowers.70 The articles imposed to enable internal reporting and disclosure to the public are possible only if there is another more discrete effective means.71 The Court takes into account the public interest in the information and imposes on the worker the requirement of verifying the authenticity of the information as well as he can.72 He must act in good faith and not to obtain a personal advantage or due to personal animosity.73 If he respects the procedure and conditions, he is protected against the decisions adversely affecting him linked to his disclosures.74 In addition, the CJEU states that a worker who discloses information under those articles remains bound by his other duties.75 This is how the EU courts assess restrictions on the exercise of the freedom of expression in the employment relationship. Curiously, they never refer, when they deal with freedom of expression in employment relations, to Article 11 and Article 52 CFREU.76 iii.  The Trade Secrets Directive and Proposal of a Directive on the Protection of Persons Reporting on Breaches of Union Law Two recent texts will have an impact on freedom of expression in the employment relation in EU law.

69 This refers to facts that give rise to a presumption of possible illegal activity detrimental to the interests of the EU or of conduct related to the discharge of professional duties that may constitute a serious failure to comply with obligations. 70 ECtHR, 12 February 2008, No 14277/04, Guja v Moldova, paras 73–77. 71 CST, 5 December 2012, F-88/09 and F-48/10, Z v CJEU, para 235. 72 The protection is only granted for the communication of concrete facts that, after a preliminary assessment, may have led the official to reasonably consider the existence of an illegal activity or a serious breach (CST, 5 December 2012, F-88/09 and F-48/10, Z v CJEU, para 252). 73 Good faith will be assessed notably on the basis of three elements: the seriousness of the disclosed facts, their authentic character and the modalities used to communicate the information (GCEU, 8 October 2014, T-530/12, Berjemo Garde v CESE, paras 154, 156 and 159). 74 CST, 5 December 2012, F-88/09 and F-48/10, Z v CJEU, para 253; CST, 24 February 2010, F-2/09, Menghi v ENISA, para 139; CST, 13 January 2011, F-77/09, Nijs v Court of Auditors of the European Union, para 62. 75 GCEU, 8 October 2014, T-530/12 P, Bermejo Garde v CESE, para 123; CST, 30 June 2015, F-64/13, Z v CJEU, para 74; CST, 5 December 2012, F-88/09 and F-48/10, Z v CJEU, para 251; CFEU, 3 October 2006, T-171/05, Nijs v Court of Auditors, paras. 70 and 73. Officials must use their discretion in order to avoid unreasonably harming their colleagues or the functioning of the service. So, they must avoid communicating incredible information or groundless facts (CST, 13 January 2011, F-77/09, Nijs v Court of Auditors of the European Union, paras 55–69). 76 This point is surprising because in some cases these Arts were invoked by officials to defend their freedom of expression (see GCEU, 15 September 2017, T-585/16, Skareby v SEAE, para 63).

Article 11  309 First of these is the Trade Secrets Directive,77 adopted in 2016, which aims to protect trade secrets against unlawful acquisition, use and disclosure. This text is problematic as regards the protection of freedom of expression in the ­employment relation for a number of different reasons. First, because it provides an extremely broad definition of trade secrets.78 The trade secret holder is entitled to apply for measures, procedures and remedies to prevent, or obtain redress for the unlawful disclosure of their trade secret.79 Unlawful disclosure is also broadly defined.80 Therefore the range of conduct that could be pursued reduces the freedom of people who want to disclose such information. However, the Directive provides some exceptions to the protection of freedom of expression. Concerning the field of application of the Directive, Article 1 (2) states it shall not affect ‘the exercise of the right to freedom of expression and information as set out in the Charter’.81 In addition, Article 5 provides for some exceptions in which disclosure of trade secrets cannot be pursued: they are cases in which such disclosure was carried out (i) in exercising the right to freedom of expression as set out in the Charter; (ii) to reveal misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest;82 (iii) disclosure by workers to their representatives as part of the legitimate exercise by those representatives of their functions in accordance with the law, provided that such disclosure was necessary for that exercise; or (iv) for the purpose of protecting a legitimate interest recognised by law.83 But it is up to the person who disclosed the information to prove that

77 Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information against their unlawful acquisition, use and disclosure, OJEU, 15 June 2016, L 157/1. 78 This is information that is (1) secret in the sense that it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question, (2) has commercial value because it is secret and (3) has been subject to reasonable steps under the circumstances to keep it secret. 79 The damages can be significant because the Directive states that the courts when they set the amount of damages should take into consideration all the appropriate factors, including the n ­ egative economic consequences, such as lost profits or moral prejudice (Art 14). 80 The disclosure shall be considered unlawful whenever carried out without the consent of the trade secret holder, if the person acquired the trade secret unlawfully or is in breach of a ­confidentiality agreement or any other duty not to disclose. 81 However, it would be surprising if the simple fact that one exercises a right to freedom of ­expression would be outside the field of application. 82 The ‘general public interest’ is not defined by the Directive and differs from the term ‘general interest’ used in ECtHR case law. Because the public interest must also be general, it seems that this is an autonomous notion that is more restrictive that the general interest under ECtHR case law. 83 Recitals 19 and 20 provide more explanations. Recital 19 states that it is essential that the exercise of the right to freedom of expression and information not be restricted, in particular with regard to investigative journalism and the protection of journalists’ sources. Concerning whistleblowers, Recital 20 states that the measures, procedures and remedies provided for should not restrict whistleblowing and the protection of trade secrets should not extend to cases in which disclosure of trade secrets serve the public interest, insofar as directly relevant misconduct, wrongdoing or illegal ­activity is revealed. The authorities must be allowed to make an exception when the respondent had every reason to believe in good faith that his conduct satisfied the appropriate criteria set out in this

310  Elliot Cobbaut one of the exceptions applies in this instance. In addition, the text provides a floor but not a ceiling for trade secret protection and Member States may have further-reaching provisions. One of the main problems with this text is that it reverses the principle and exceptions for situations that fall under its field of application. When a worker wants to disclose information that can be considered a trade secret without the consent of the holder of this secret, the principle is that the disclosure is illegal and forbidden and he will need to prove he comes under one of the exceptions provided by the Directive. In this area, the principle will not longer be the freedom under Article 11 CFREU or 10 ECHR and the exception the restriction under given conditions; instead, the secret or restriction will the principle and the exception will be the freedom to disclose, under Article 5 of the Directive. Second is the Proposal for a directive on the protection of persons reporting on breaches of Union law.84 On 23 April 2018, the Commission published a Proposal for a Directive aimed at granting an effective right to freedom of expression in protecting persons who report breaches of Union law.85 However, the text protects such expression only in certain circumstances and subject to conditions. In other words, it allows limitation of freedom of expression outside these circumstances and conditions. Its material scope is quite wide and covers disclosures of actual or potential unlawful activities or abuses of law in many areas.86 However, two important areas are not covered: reporting on breaches of Union employment and social law and anti-discrimination law.87 Its personal scope is also wide and covers persons, in the private and public sectors, who disclose information on breaches in a work-related context.88

directive. Therefore, the protection seems to be clear for journalists, but Recital 20 seems to add conditions for whistle-blowers. 84 European Commission, 2018/0106 (COD), Proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law. 85 This text is supposed to balance the threat of the Trade Secret Directive to the freedom of expression and set out minimum standards of protection in order to bring about more harmonisation in this matter in the EU. Currently, national legislations differ on this point in the Member States and some EU Acts grant protection for people who report breaches of EU law but mostly in financial matters. 86 Including public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems (Art 1). 87 Concerning employment and social law, according to Recital 20, this exclusion is justified with reference to existing legislation that grants protection to workers and workers’ representatives when raising issues of compliance with their employer. Recital 20 refers, for instance, to Directive 89/391/ EEC. Concerning anti-discrimination law, the exclusion is not justified. Given the importance of those fields, the insufficiency of the protection granted by existing legislation and the aim of putting an end to fragmentation in the protection granted to reporting persons, this exclusion is curious. 88 This scope includes at least persons having the status of worker, self-employed, shareholders, members of the management body, volunteers and unpaid trainees, persons working under the supervision and direction of contractors, sub-contractors and suppliers, and, finally, persons

Article 11  311 This proposal imposes on companies and administrations89 the establishment of internal channels and procedures for reporting and following up on reports. It posits a system of steps: in principle, reporting persons have to follow a procedure, including prior reporting via internal channels. If using these channels does not work, for example, they can report externally to the competent authorities.90 In the absence of a response from the latter or in other particular cases91 they can report to the public or the media. The relevant channels must ensure confidentiality concerning the identity of the reporting person. To benefit from this protection, the reporting person must respect this procedure and have reasonable grounds to believe that the information they reported was true.92 The proposal imposes on Member States the requirement of taking measures to prohibit any forms of retaliation against reporting persons meeting its conditions.93 In addition, the reporting person shall not be considered to have breached any restriction on disclosure or incur liabilities of any kind. Finally, the proposal grants the reporting person access to remedial measures and penalties are applicable to persons who do respect its provisions.94 It must be stressed that the proposal permits the Member States to introduce provisions that are more favourable for reporting persons.95

whose work relationship is yet to begin. However, workers and trade unions representatives are not mentioned. 89 The legal entities in the private sector are those with a minimum of 50 employees, an annual business turnover or balance sheet total of 10 million euros or more, or entities operating in the area of financial services or vulnerable to money laundering or terrorist financing. In the public sector, these entities include the state administration, regional administration and departments, municipalities with more than 10,000 inhabitants and other entities governed by public law. 90 External reporting will be protected (i) if a first report was made internally but no appropriate action was taken within the reasonable timeframe, (ii) if the internal channels were not available, (iii) if use of internal reporting channels could not reasonably be expected in light of the subject matter of the report and (iv) if the person had reasonable grounds to believe that the use of internal reporting channels could jeopardise the effectiveness of investigative actions or was entitled to report directly through the external reporting channels to a competent authority by virtue of Union law. 91 (1) If it could not reasonably be expected to use those channels due to imminent or manifest danger to the public interest or (2) where there is a risk of irreversible damage. There is a risk of a legal minefield because the Directive seems to offer a lot of protection but its scope is complicated and inside a courtroom a whistle-blower could easily find he is left outside the protection. 92 Under Article 17 the proposal states that Member States shall provide penalties applicable to persons making malicious or abusive reports of disclosures. 93 Furthermore, there is a reversal of the burden of proof in judicial proceedings relating to a detriment suffered by the reporting person, and subject to this person providing reasonable grounds to believe that the detriment was in retaliation for having made the report, it shall be for the person that has taken the retaliatory measure to prove that the detriment was not a consequence of the report but was exclusively based on duly justified grounds. 94 Such persons who hinder the reporting, take retaliatory measures, bring vexatious proceedings against reporting persons or breach the duty of maintaining the confidentiality of the identity of reporting persons. 95 However, Art 19 states that is without prejudice to Art 16 (measures for the protection of concerned persons) and Article 17(2) (penalties applicable to persons who abuse of the right to disclosure). Therefore, in certain circumstances protection for reporting person are not minimum but maximum protection.

312  Elliot Cobbaut E. Enforcement EU officials facing restrictions on their freedom of expression imposed by the Appointing Authority can, according to Article 90 SR, submit a request or a complaint to this Authority against an act affecting them adversely either if the said authority has taken a decision or it has failed to adopt a measure prescribed by the SR. The Authority must notify the person concerned of its reasoned d ­ ecision. If the decision rejects the complaint, the official can go before EU courts under Article 91 SR to decide the legality of the act that is affecting him adversely. The official can invoke the violation of Article 11 CFREU, which, under Article 51 CFREU, binds institutions, bodies and agencies of the EU.96 It is the only way for those people to enforce their right. Only EU institutions are authorised to judge the application of the fundamental rights to EU officials. They can also invoke Article 10 ECHR before EU courts, but not go before the ECtHR because the EU is not (yet) a member of the ECHR.97 Other workers, a priori, cannot invoke Article 11 CFREU in their employment relation and before EU courts. However, both the recent Trade Secret Directive and the Proposal protecting reporting people represent an opportunity. Even if these texts might limit workers’ freedom of expression, they also constitute a possibility to apply Article 11 CFREU to other workers than EU officials. Protection, procedures and exceptions set out by those texts are ­sometimes broad and unclear. There is an important margin of discretion for Member States in their implementation. Article 11 CFREU could have an important role to play because the Member States will have to respect it in implementing those texts, under Article 52 CFREU. The Trade Secret Directive and the potential future directive on the protection of reporting persons will have be implemented and interpreted, like Articles 22a and 22b SR, in conformity with Article 11 CFREU and CJEU case law. Therefore, people facing restrictions on their freedom of expression which would not conform to Article 11 CFREU as interpreted by the CJEU will be entitled to challenge the national provisions and decisions of national judges on the grounds of Article 11. In addition, since all the EU Member States are bound by the ECHR, workers other than EU officials may take action against restrictions on their freedom of expression that are not

96 Freedom of expression can be invoked in two different ways: either, as in Connolly to defend the official when he is punished as a result of a statement, or, as in Cwik, in an offensive way to challenge the application of a provision that prevents him to exercise his right. 97 A difference between the case law of the CJEU and ECtHR is that, concerning to proportionality condition, the ECtHR lets only a little scope for restriction for political speech and a greater margin of appreciation for expression of commercial nature. When civil servants are dismissed for expressing political opinions, one might question whether the requirement of proportionality has been satisfied. (L Woods, ‘Freedom of Expression in the European Union’ (2006) 12 European Public Law 379).

Article 11  313 compliant with Article 10 ECHR as interpreted by ECtHR case law, which is very similar to Article 11 and CJEU case law.98 III. CONCLUSIONS

Like a number of international instruments, the Charter of Fundamental Rights of the European Union enshrines the right to freedom of expression. The importance of this right in democratic societies has been stressed several times both by the ECtHR and by the EU courts, notably because this right is a cornerstone of the effective exercise of other fundamental rights. Concerning the employment relation, the role of Article 11 is modest due to its field of application. It applies to EU institutions but binds the Member States only when they implement the EU law. That is why there is important EU case law on freedom of expression in the employment relation, but only concerning EU officials. This case law is very similar to the ECtHR case law on freedom of expression in the employment relation. It recognises a broad material scope for the right of freedom of expression, including the right to freedom of expression, information and media. However, this right is not absolute and it can be limited under certain conditions. In accordance with Article 53 CFREU, those conditions must be as protective as those imposed by the ECtHR. Curiously, the EU courts refer systematically to Article 10 ECHR to recognise the right to freedom of expression, 10(2) ECHR for the conditions of limitation and to the Connolly case in which the CJEU applied the test developed by the ECtHR in its case law. In addition, in their assessment of the restriction, EU courts and the ECtHR take into account similar elements in order to assess compliance with the three conditions. Two recent texts will bring about some development in this area. The Trade Secret Directive and the Proposal for a Directive on the protection of reporting persons, even if they might constitute restrictions on freedom of expression, are also opportunities to extend the field of application of Article 11. Member States will be bound in their implementation of Article 11 and that will make it ­ possible for workers falling under their field of application and facing restrictions on their freedom of expression to challenge the national provisions implementing those texts and their interpretation by national judges on the grounds of A ­ rticle  11. The provisions implementing those texts will need to respect ­freedom of expression as enshrined in Article 10 ECHR, Article 11 CFREU and i­ nterpreted by the EU courts. 98 This solution can be interesting for instance for trade union representatives, who are not in the personal scope of proposal, but may have a very important role as whistle-blower. They can observe wrongdoing themselves but also receive information from worker and act as intermediaries. If they are not protected by national legislation. They can find protection under Art 10 ECHR before the ECtHR. In this field, it will be interesting to analyse the decision of the ECtHR in the pending case Straume v Latvia lodged before the ECtHR on 25 August 2014.

314

15 Article 12 – Freedom of Assembly and of Association ANTOINE JACOBS

Article 12 Freedom of assembly and of association 1.  Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right for everyone to form and to join trade unions for the protection of his or her interests. 2.  Political parties at European level contribute to expressing the political will of the citizens of the Union.

EXPLANATIONS Paragraph 1 of this Article corresponds to Article 11 of the ECHR, which reads as follows: 1.  Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.  No restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. The meaning of the provisions of paragraph 1 of this Article 12 is the same as that of the ECHR, but their scope is wider since they apply at all levels, including the ­European level. In accordance with Article 52(3) of the Charter, limitations on that right may not exceed those considered legitimate by virtue of Article 11(2) of the ECHR.

316  Antoine Jacobs This right is also based on Article 11 of the Community Charter of the Fundamental Social Rights of Workers. Paragraph 2 of this Article corresponds to Article 10(4) of the Treaty on­ European Union. Considering the second explanation it may be useful also to recall the literal text of Article 11 of the Community Charter of the Fundamental Social Rights of ­Workers (Community Charter): Employers and workers of the European Community shall have the right of association in order to constitute professional organizations or trade unions of their choice for the defence of their economic and social interests. Every employer and every worker shall have the freedom to join or not to join such organizations without any personal or occupational damage being thereby suffered by him.

I. INTRODUCTION

A.  Context and Main Content The right to organise – or freedom of association – is a classic element of fundamental human rights. It emerged as such in the middle of the nineteenth century, was temporarily destroyed by fascism, Nazism and communism, but was reconfirmed in the middle of the twentieth century in western Europe as one of the cornerstones of a free democratic society. For the trade union movement and for labour lawyers it has always been a paramount concern that the right of association should also be fully applied in the world of work. The importance of the freedom of association to trade unions (French: liberté syndicale) is evident at international level and in national constitutions. A wide range of international as well as regional and national sources on freedom of association remind us of the long-standing battle for this instrument for the protection of the workers.1 However, all these national and international provisions show a wide variety of contexts in which the right to trade union association is inserted. Sometimes it is connected with the right of assembly. Sometimes it is just part of a general right of association. Sometimes it is explicitly mentioned alongside the general right of association. Sometimes it is separated from the general right of association and placed in a specific labour-law context. Sometimes it is attached to a purpose (eg ‘for the defence of their economic and social interests’) or with indicated actions (eg ‘to form and to join’). Also varied are the contents of all these national and international provisions about the freedom of trade union association. Besides documents in which the freedom of trade union association is mentioned alongside the right 1 ATJM Jacobs, ‘Collective Self-Regulation’ in BA Hepple (ed), The Making of Labour Law in Europe (Oxford, Hart Publishing, 2010) 193–241.

Article 12  317 (or ­freedom) of collective bargaining and/or collective action, there are documents from which (one or two of) those last two dimensions are missing. The Convention under the Chairmanship of Dr Herzog that, in 1999/2000, conceived the Charter of Fundamental Rights of the European Union made its own amalgam of all the examples. It finally opted for a text in which a general right of association is connected with a general right of assembly, which then is further specified as a right of trade union association and a right to organise political parties and civic associations and which stands apart from a right to collective bargaining and action further on in the Charter. As Brian Bercusson observed, the extensive, but sometimes disputed meanings given to the right to freedom of association of trade unions highlight some problems and ambiguities in the specific formulation this right receives in Article 12.2 No wonder labour lawyers often criticise the concrete choices made in the formulation and context of the right to trade union association in various ­charters. Sudre,3 for instance, criticised the fact that the ECtHR qualifies the right to form and join trade unions as an aspect of a wider right to freedom of association rather than a separate right.4 Is there not something specific in trade unions compared with other associations that entitles them to specific ­protection? Brian Bercusson recalled how at the Herzog Convention the references to trade unions were initially included among the collective social rights of labour. However, at a later stage they were transferred to a separate Article and C ­ hapter. Following the failure of further attempts to unite them, trade union rights of association were finally separated from the other collective social rights of labour. In Bercusson’s eyes the failure to include the right of association as a social or collective right under the Chapter’s ‘Solidarity’ title, where it would have joined with the rights of collective bargaining and collective action, undermines the right of association as a collective right. The separation of freedom of association from other collective rights equate it to, or even reinforce the ­negative right of association of individual workers, as opposed to supporting the collective rights of workers in trade unions.5 B.  Relationship to Other Provisions The last sentences bring us to the conclusion that we cannot isolate Article 12 in its specific reference to the right of trade union association from Article 28 on 2 B Bercusson, ‘Freedom of Assembly and of Association (Article 12)’ in B Bercusson (ed), ­European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 145. 3 F Sudre, Droit Européen et international des droits de l’homme 10th edn (Paris, PUF, 2011) 620, no 348. 4 ECtHR, 27 October 1973, App No 4464/70, National Union of Belgian Police v Belgium, para 38; ECtHR, 30 June 1993, App No 16130/90, Sigurjonsson. 5 See Bercusson (n 2) 136–41.

318  Antoine Jacobs the right to collective bargaining and action. And there are more relationships to recognise. There is certainly a relation with the right to non-discrimination (Article 21). Thus EU Regulation 492/2011 on the free movement of workers has provided that a worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy equality of treatment as regards membership of trade unions and the right attached thereto.6 ­Employers’ practices of union-busting directed against a union’s membership must be qualified as an act of discrimination.7 Also differentiations between representative and non-representative unions may come under the test of A ­ rticle 21 (see section II.D). Furthermore, one cannot dissociate the freedom of trade union association from the exercise of the freedom of expression (­Article 11); so for instance in cases8 where the ECtHR has sought to interpret alleged violations of Article 10 in light of Article 11.9 There is certainly also a link to be made with the freedom of thought, conscience and religion (Article 10), as can easily be seen from the ECtHR case concerning a Romanian union of clergymen.10 Also the right to protection of personal data (Article 8) may have an impact on trade unions, for instance, the question of whether an employer can demand that trade unions present a full list of their members in order to perform its duties concerning consultation in a collective redundancy.11 C.  Relationship to Other Relevant Instruments According to the abovementioned Explanations, Article 12 CFREU corresponds to Article 11 ECHR12 and is also based on Article 11 Community Charter. However there are more instruments in which Article 12 finds a compeer. i.  ILO Instruments In the International Labour Organisation (ILO) the freedom of trade union association was mentioned as early as 1919 in the Preamble to its Constitution, and was reconfirmed by the Declaration of Philadelphia, 1944. It was subsequently elaborated in Convention No 87 on Freedom of Association and Protection of the Right to Organise, 1948. The Freedom of Association was also listed among

6 See CJEU, Case 36/75, Rutuli [1975] ECR 1219. 7 ECtHR, 30 July 2009, App No 67336/01, Danilenkov. 8 ECtHR, 12 September 2011, App No 28955/06, Palomo Sanchez; ECtHR, 8 December 2009, App No 28389/06, Aguilera Jiménez. 9 F Dorssemont, ‘Article 12(1) Freedom of Assembly and Association’ in S Peers et al (eds), The EU Charter of Fundamental Rights: A Commentary (Baden-Baden, Nomos, 2014) 341–66. 10 ECtHR, 9 July 2013, App No 2339/09, Sindicatul Pastorul cel Bun. 11 See a Polish debate by E Podgórska-Rakiel in Monitor Prawa Pracy (2010) No 9. 12 Also the documents Convent 46 and 49 of the Herzog Convention both state that this Art corresponds to Art 11 ECHR; see Bercusson (n 2) 161.

Article 12  319 the four fundamental rights at work which ILO Member States are supposed to comply with even if they have not ratified the relevant Convention.13 ii.  UN Instruments The United Nations adopted a similar right in 1948 in the form of Article 23(4) of its Universal Declaration of Human Rights, 1948, and subsequently in 1966 in Article 22 of the International Covenant on Civil and Political Rights and in Article 8 of the International Covenant on Economic, Social and Cultural Rights. iii.  Council of Europe Instruments In the Council of Europe the Right of Association is not only included in ­Article 11 of the European Convention on Human Rights, but also in Article 5 of the European Social Charter, 1961, confirmed in the Revised European Social Charter of 1996.14 iv.  EU Instruments The right of association is conspicuously absent from the recent European Pillar of Social Rights, 2017.15 However, it is present in the Constitution of nearly all the Member States of the EU.16 The harvest of case law under Article 11 ECHR is still very modest compared with the far richer harvest of decisions that have been made, in the course of time, by various supervisory bodies of the European Social Charter, notably the European Committee on Social Rights, with respect to the corresponding Article 5 ESC, and by the Committees of the ILO charged with monitoring the ILO Conventions and Recommendations that are also about the right to trade union association. Therefore it is submitted that the CJEU, if it is called on to apply Article 12 CFREU, should not limit itself to taking into consideration only the decisions of 13 ILO Convention No 87 was identified as one of the eight core conventions of the ILO in the Declaration of the Fundamental Principles and Rights at Work, 1998; see A Trebilcock, ‘The ILO Declaration on Fundamental Principles and Rights at Work: A New Tool’ in R Blanpain and C Engels (eds), The ILO and the Social Challenges of the 21st Century (The Hague, 2001) 105. 14 Art 5 in both the 1961 Charter and the 1996 Revised Charter belongs to the ‘hard core’ of the rights contained in these Charters. It means that, although the Contracting Parties are not obliged to ratify Art 5, the possibilities to avoid ratification of this Article are more restricted than with respect to the articles of the Charters that do not belong to the ‘hard core’ (see Part III, Art A(1)(b)). In fact, of all the Member States of the Council of Europe only Turkey has not ratified Art 5. However, this point seems to have lost most of its relevance now that the ECtHR has established as violations of Art 11 ECHR the rules and facts that impair the freedom recognised under Article 5 ESC. See ECtHR, 24 March 2015, App No 36807/07, Ismail Sezer. 15 See the Interinstitutional Proclamation on the European Pillar of Social Rights, OJ C 428/10 of 13.12.2017. 16 Bercusson (n 2) 145–48.

320  Antoine Jacobs the ECtHR on the comparable Article 11 ECHR, but also the conclusions and decisions of the aforementioned bodies of the ILO and the Council of Europe. II. CONTENT

A.  General Observations Bercusson reminded us that an explicit reference to the application of Article 12 CFREU at European Union level was replaced by the final text of the Charter, which more vaguely reads ‘at all levels’. In his opinion these words could be interpreted as applying only to all levels within Member States, but he convincingly argued that this would be too narrow an interpretation and that certainly the European Union level is included.17 This follows also from the Explanations. The personal scope ratione personae of Article 12 is formulated in very general words: ‘Everyone has the right … to freedom of association.’ However, where in what follows this article mentions only ‘trade unions’ one might think that the right of association is applicable only to workers and not to employers. Still, considering the instruments on which Article 12 is based, this would be a wrong conclusion. Article 11 of the Community Charter is unambiguous on this point: ‘Employers and workers … shall have the right of association in order to constitute professional organizations or trade unions’. Also from the case law of the ECtHR18 it has already become clear that this Court recognises that Article 11 ECHR applies to associations of employers and independent persons as well. If it comes to litigation about the scope of Article 12 CFREU I think that the Court should take as a model the quasi case law of the ECSR on the very comparable Article 5 ESC.19 In this case law the ECSR has affirmed that the right of ‘trade union’ associations is also applicable to employers, pensioners and unemployed persons, foreigners, professional organisations of doctors, dentists and so on, provided that such organisations are empowered to negotiate employment conditions (including, for example, remuneration). For the current situation on the labour market in which all types of non-standard work may be found, it is important that associations for these types of labour relationships be recognised as trade unions under this right.20 I have in mind workers on ­zero-hours contracts, temporary agency workers, independent workers, franchisees, persons engaged by digital platforms such as Uber and so on.21 17 ibid 162–63. 18 ECtHR, 30 June 1993, App No 16130/90, Sigudur Sigurjonsson; ECtHR, 25 April 1996, App No 15573/89, Gustaffson. 19 A Jacobs, ‘Article 5 The Right to Organise’ in N Bruun et al (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2016) 235–37. 20 V de Stefano, ‘Non-Standard Work and Limits on Freedom of Association: A Human RightsBased Approach’ (2017) 46(2) ILJ 185. 21 See also Bercusson (n 2) 162.

Article 12  321 Article 12 CFREU should apply like Article 11 ECHR applies to both the public and to private sectors. All classes of employers and workers, including public servants, are in principle fully entitled to the right to organise in accordance with the Charter (but see section II.D). B.  Field of Application Concerning the general limitations on the application of the Charter in­ Article 51 (see section II.D) the most immediate application of the Charter in this area may be expected in cases regarding the institutions and bodies of the EU. Even if the legal framework for industrial relations in these institutions and bodies is certainly founded on the right of trade union organisation,22 this does not rule out conflicts on its realisation and then the CJEU (and more in particular its General Court) may be called to apply Article 12 on such cases.23 C.  Specific Rights (Material Scope) There seems to be a unanimous consensus that the freedom of trade union association encompasses rights such as the freedom to form trade unions, the freedom to join a trade union, the right to unfold trade union activities and protection of (the activities of) trade union members. Although somewhat less welcome, it also implies the freedom not to join a trade union. Much more debated has been the question of whether it also includes the right to collective bargaining and the right to strike. And although in the famous cases Demir/ Baykara and Enerji24 the ECtHR established that Article 11 ECHR indeed covers the right to collective bargaining and the right to strike as well, I shall – in order to avoid duplication with the contribution of Filip Dorssemont – limit myself to the right of trade union association in the narrower sense of the term. i.  Freedom to Form a Trade Union To date the ECtHR has had to deal with a few cases in which this aspect of the freedom of association has been violated. This concerned notably the case of a Turkish trade union which was dissolved solely on the ground that it had been founded by civil servants and its members were civil servants.25

22 See Dorssemont (n 9) 342–43. 23 See a recent (although non-committal) example in EU Tribunal, 16 November 2017, T-75/14, USFSPEI, ECLI:EU:T:2017:813. 24 ECtHR, 12 November 2008, App No 34503/97, Demir and Baykara; ECtHR, 21 April 2009, App No 68959/01, Enerji Yapi-Yol Sen. 25 ECtHR, 21 February 2006, App No 28602/95, Tum Haber Sen and Cinar.

322  Antoine Jacobs From the various conclusions of the ECSR we may infer that the freedom to form trade unions embraces many more aspects.26 Trade unions and employers’ organisations must be free to organise their infrastructure and functioning without prior authorisation. Initial formalities, such as declaration and registration, must be simple and easy to apply. National law must be applied in such a way that it does not impair the freedom to register as a trade union. The principle of compulsory registration is acceptable so long as the persons concerned have adequate administrative and jurisdictional protection against abuses of the power to refuse to register a trade union. If fees are charged for the registration or establishment of an organisation, they must be reasonable and designed only to cover strictly necessary administrative costs. Requirements as to the minimum numbers of members are acceptable if the number is reasonable and presents no obstacle to the founding of organisations. Trade unions must be able to apply for and be recognised as having legal personality. Of course, this may be subject to reasonable requirements. On the other hand, trade unions must be free to form federations and join similar national and international organisations and so a State Party may not limit the degree to which they are authorised to organise. Trade unions and employers’ organisations must be largely autonomous with regard to anything to do with their infrastructure or functioning. Although they are in principle entitled to adopt internal rules as they see fit the CJEU may not allow rules that contradict the economic freedoms of the EU Treaties.27 They are entitled to perform their activities effectively and devise a work programme. Thus the following actions constitute encroachments upon the freedom to form trade unions: prohibiting the election or appointment of foreign trade union representatives, substantially limiting the use that a trade union can make of its assets and substantially limiting the reasons for which a trade union is entitled to take disciplinary action against its members. Domestic law may provide that grants to trade unions may be made only for financing activities for social and trade union training purposes and that financing facilities are not granted to trade unions for other purposes. Domestic law must provide a right of appeal to a court to ensure that the right to form trade unions and employers’ associations is upheld. ii.  Freedom to Join a Trade Union To date the ECtHR has had to deal with only two aspects of the freedom to join a trade union. In the ASLEF case28 it was declared that the right to join a trade 26 Antoine Jacobs, ‘The Right to Organise’ in N Bruun, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) 223–36. 27 See CJEU, Case C-415/93, Union royale belge des sociétés de Football association and others v Bosman and others [1995] ECR I-4921; see Dorssemont (n 9) 354. 28 ECtHR, 27 February 2007, App No 11002/05, ASLEF; I van Hiel, ‘The Right to Form and Join Trade Unions Protected by Article 11 ECHR’ in F Dorssemont et al, The European Convention on Human Rights and the Employment Relation (Oxford, Hart Publishing, 2013) 302–04.

Article 12  323 union cannot be interpreted as conferring a general right to join the union of one’s choice, irrespective of the rules of the union. It would run counter to the very effectiveness of the freedom at stake if trade unions had no control over their membership. In the exercise of their rights under Article 12 CFREU and in the absence of any identifiable hardship suffered by the expelled member or any abusive and unreasonable conduct on the part of the trade union, unions must remain free to decide, in accordance with union rules, questions concerning admission and expulsion.29 In the Danilenkov case30 the employer had encouraged employees to relinquish their trade union membership, besides reassigning them to special work teams with limited opportunities, dismissals, reduction in earnings, disciplinary sanctions and refusals to reinstate employees following court judgments. All this was considered a violation of Article 11 ECHR. With reference to Article 52(3) CFREU (see the chapter on Interpretation in this volume) one might expect that Article 12 CFREU offers the same protection. However, from the various conclusions of the ECSR we may infer that the freedom to join a trade union embraces several more aspects.31 National law must guarantee the right of workers to join a trade union. For example, a provision in domestic law that workers’ right to organise may be restricted by the employer in the employment contract unduly restricts the enjoyment of trade union rights by workers as they may be forced to accept restrictions on their right to establish, to join or not to join a trade union in order to obtain employment. The freedom to join must be a concrete freedom in practice. Also according to the ILO the freedom to join trade unions certainly includes protection of trade union members from any harmful consequences that their trade union membership or activities may have on their employment, particularly any form of reprisal or discrimination in the areas of recruitment, dismissal or promotion because they belong to a trade union or engage in trade union activities.32 Where such discrimination occurs, domestic law must make provision for a reparation that is adequate and proportionate to the harm suffered by the victim. iii.  Trade Union Activities In the eyes of the ILO the right of association should not only protect the right of workers to form and join a trade union, but also the right of trade unions to organise freely and to perform their activities effectively, which is essential for ‘the protection of workers’ economic and social interests’.33 On the basis of this 29 See also ILO, Etude d’ensemble, p 39, no 79; ILO Freedom of Association Digest, no 463; EComHR, 13 May 1985, App No 10550/83, Cheal; EComHR, 1 September 1993, App No 21386/93, NALGO; I van Hiel, op cit 300–302. 30 ECtHR, 30 July 2009, App No 67336/01, Danilenkov; van Hiel (n 28) 306. 31 Jacobs (n 26) 226. 32 International Labour Office, Freedom of Association, Digest, p 157, no 781. 33 International Labour Office, Freedom of Association, Digest, p. 103, no 495.

324  Antoine Jacobs formula, the ECtHR has recognised a state obligation to have recourse to means that enable trade unions to protect their members’ interests effectively.34 The very core of such activities lies in the right to bargain collectively and in the right to strike. However, as already mentioned, I shall leave these aspects to the contribution of Filip Dorssemont and Marco Rocca in this volume (­chapter 22). This includes measures that may undermine trade union bargaining power.35 I shall limit myself to all aspects of these activities apart from collective bargaining and strike action. There is as yet no CJEU case law on Article 12 CFREU and of the ECtHR on Article 11 ECHR on these aspects of the freedom of association for trade unions. In the eyes of the ECSR, trade unions and employers’ organisations should be largely independent as regards anything to do with their functioning. They are entitled to perform their activities effectively and devise a work programme. These activities must include the access of trade union representatives to the workplace and union members must be able to hold meetings at work insofar as employers’ interests and company requirements permit. Employers must guarantee facilities for selected union representatives and that union representatives be allowed to enter workplaces, take part in union activities, hold meetings and distribute documents and should not be discriminated against by reason of their trade union activities.36 Finally trade unions should have full access to the courts to defend their interests and those of the workers. iv.  Protection of (the Activities of) Trade Union Members It stands to reason that workers’ fundamental right to form and to join trade unions implies that ordinary trade union members, as well as employee representatives, should be fully protected against any harm that their trade union membership or their activities may do as regards their employment. There is still no CJEU case law on this aspect of Article 12 CFREU; however, there is already some ECtHR case law on this aspect in relation to Article 11 ECHR. The ECtHR held that there had been a violation of Article 11 in the case of disciplinary action (a reprimand) against a teacher who held trade union office for taking part in a panel discussion organised by a political party37 and against a trade union member who had organised a vote (outside working hours and the premises of the employer) without applying for prior authorisation from their boss.38 The Court also declared that Article 11 ECHR does not secure any particular treatment of trade union members by the State, such as the right to enjoy certain

34 ECtHR,

27 October 1975, App No 4464/70, National Union of Belgian Police v Belgium. ECtHR, 2 July 2002, App Nos 30668/06 and 30678/96, Wilson; see van Hiel (n 28) 305. 36 Jacobs (n 26) 230–31. 37 ECtHR, 24 March 2015, def 24 June 2015, App No 36807/07, Ismail Sezer. 38 ECtHR, 26 May 2015, App No 7152/08, Dogan Altun. 35 See

Article 12  325 benefits in matters of remuneration. Such benefits were not indispensable to the effective enjoyment of trade union freedom and did not constitute an element necessarily inherent in rights guaranteed by the Convention.39 In the eyes of the ECSR this aspect of the freedom of association embraces dismissal on the ground of trade union membership and activities, as well as lesser forms of detriment than dismissal, such as those that may occur in connection with recruitment and with employment conditions in general (mainly remuneration, training, promotion, transfer). Domestic law should provide effective sanctions and remedies in case of discrimination and reprisals based on trade union membership and activities. Where such discrimination has occurred, there must be adequate compensation proportionate to the harm suffered by the victim.40 v.  Freedom Not to Join a Trade Union According to many people, workers must be free not only to join but also not to join a trade union. Brian Bercusson pointed to the fact that Article 12 CFREU fails to mention explicitly the negative right of association. This aspect was expressly provided for in one of the earlier drafts of this Article but later deleted.41 The Community Charter has explicitly recognised that ‘[e]very employer and every worker shall have the freedom to join or not to join such organizations’, but the negative right of association is not mentioned in Article 11 ECtHR. Nevertheless since 1981 the ECtHR has condemned all sorts of closed shops and other union security constructions with increased severity. It started with the case of Young, James and Webster in which the Court only declared some kinds of closed shop to be in violation of Article 11 ECHR42 and it ended with the case of Sorenson and Rasmussen in which all kinds of closed shops were ­forbidden.43 For a number of European states this has been immaterial because in their industrial relations systems the closed shop did not play a substantial role or was even banned under national legal provisions. However, in the Nordic countries, the United Kingdom and Ireland this kind of arrangement was an important pillar of their industrial relations systems. By banning them the ECtHR has substantially overturned the established equilibrium between the social partners in these countries and shifted the balance of power towards the employers.

39 ECtHR, 21 June 2001, App No 57442/00, Juan Sanches Navajas. 40 Jacobs (n 26) 231–32. 41 Bercusson (n 2) 161. 42 ECtHR, 13 August 1981, App Nos 7601/76, 7806/77, Young, James and Webster; van Hiel (n 28) 290–93. 43 ECtHR, 11 January 2006, App Nos 52562/99 and 52620/99, Sorenson and Rasmussen; van Hiel (n 28) 295–96.

326  Antoine Jacobs The ECSR has scrupulously followed the case law of the ECtHR in its many conclusions in which it castigated various contracting parties for not destroying root and branch the existing union security constructions in their countries.44 In retrospect one may well bring up for debate the legitimation for antitrade-union judicial intervention in the social-economic and political order of Member States. The ECtHR could have avoided such decisions by referring to the ILO, as the ILO has always avoided recognising a right to not join trade unions. The relevant ECtHR decisions were clearly inspired by a very much ­individualist-liberal attitude on the part of the judges. In the Sigurjonsson case45 the ECtHR extended its doctrine on the negative right of association to independent taxi drivers who needed the membership of a professional organisation to obtain a taxi licence. And in the Olafsson case46 the ECtHR considered the statutory obligation of an employer to pay an industrial charge to an employers’ association as a violation of Article 11 ECHR, due to a lack of transparency and accountability towards non-members. Fortunately the ECtHR has not gone as far as to stretch its recognition of employers’ negative right of association to outlawing various sorts of pressure that trade unions may use to apply collective agreement to their workforce. In the Gustaffson case47 the collective action aimed at inducing the employer to meet the trade union’s demand that he be bound by a collective agreement was not considered a violation of Article 11 ECHR. And in the Geotech case48 the Court concluded that the phenomenon of extending collective agreements to unorganised employers was not a violation of Article 11 ECHR. Let us hope that the CJEU, which also recognised employers’ negative right of association in the Werhof case,49 will emulate the ECtHR’s prudence. D. Limitations A first general limitation on the application of Article 12 may be Article 51(1) Charter, in which it is stated that ‘the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’. This is a large limitation on the use of Article 12 because Union law on freedom of association is bound to remain at a low level, inter alia in light of Article 153 (5) TFEU. An additional general limitation on the right of trade union association may be derived from the Explanations of the CFREU, which refer to

44 Jacobs

(n 26) 223–26. 30 June 1993, App No 16130/90, Sigudur Sigurjonsson; van Hiel (n 28) 293–94. 46 ECtHR, 27 April 2010, App No 20161/06, Vörður Ólafsson; Van Hiel (n 28) 298–300. 47 ECtHR, 25 April 1996, App No 15573/89, Gustaffson; van Hiel (n 28) 296–98. 48 ECtHR, 2 June 2016, App No 23616, Geotech. 49 CJEU, 9 March 2006, C-499/04, Hans Werhof v Freeway Traffic Systems GmbH & Co KG. 45 ECtHR,

Article 12  327 ­ rticle 11(2) ECHR. Over the years the ECtHR has not been prepared to indiA cate any group of persons as not being covered by the right of association. Even church m ­ inisters should have that right.50 The Court is only prepared to consider restrictions on this right and even then it is not prepared to consider a restriction as justified by the sort of exceptions mentioned in Article 11(2) ECHR.51 Article 11(2) of the ECHR more specifically authorises lawful restrictions on the exercise of these rights by members of the armed forces, the police or the administration of the State. Here the ECtHR seems more ready to accept restrictions, but they should not impair the very essence of these workers’ right to organise.52 The ECSR has made concrete a similar attitude in several pronouncements.53 An implicit limitation on the right of association may certainly occur when Member States make a distinction between representative and nonrepresentative trade unions. Many countries have developed practices for differentiating between trade unions in order to render their participation in various procedures of consultation and collective bargaining efficacious. As early as 1975 the ECtHR was confronted with such a practice and condoned it.54 The ECSR accepts such practices provided that any requirement of representativeness does not amount, directly or indirectly, to a hindrance on the formation of trade unions. In order to determine whether the requirements of representativeness have this effect, the Committee holds that domestic law may restrict participation in various consultation and collective bargaining procedures to representative trade unions alone. In order that the situation comply with ­Article 5 ESC, the Committee has issued a number of conditions.55 E. Enforcement Obviously the right of association can, like all fundamental rights, be enforced only if it is provided with effective remedies. The ECHR has a specific provision to that end (Article 13) whereas a similar provision is lacking in the CFREU. The Community Charter was also a bit more precise on this item, stating that ‘[e]very employer and every worker shall have the freedom to join or not to join such organizations without any personal or occupational damage being thereby suffered by him’. As already mentioned, the ILO requires that where encroachments upon the right of association occur, domestic law must make provision

50 ECtHR, 9 July 2013, App No 2339/09, Sindicatul Pastorul cel Bun. 51 ECtHR, 25 September 2012, App No 20641/05, Egitim Ve Bilim Emekcileri Sendikasi v Turkey. 52 ECtHR, 2 October 2014, App No 32191/09, Adefdromil; ECtHR, 2 October 2014, Aff No 10609/10, Matelly; EComHR, 20 January 1987, App No 11603/85, Cheltenham. 53 Jacobs (n 26) 238–41. 54 ECtHR, 27 October 1975, App No 4464/70, National Union of Belgian Police. 55 Jacobs (n 26) 233–35.

328  Antoine Jacobs for reparation that is adequate and proportionate to the harm suffered by the victim.56 Article 3 of ILO Convention No 98 provides that ‘machinery appropriate to national conditions shall be established where necessary to ensure respect for the right to organise’. Dorssemont envisages a criminal provision ­prohibiting union bashing, a reversal of the burden of proof and a fixed amount for compensation instead of the need for the victim to establish the exact amount of damages.57 III. CONCLUSIONS

Around 17 years after the Charter of Fundamental Rights of the EU came into being and eight years after it acquired binding force via the Treaty of Lisbon not much has been done with its Article 12. There is no evidence of any serious activity on the part of the EU legislator and the legislators in the various Member States to implement this Article. The same can be said of the social partners at EU and national level. The abstention of the EU legislator and the European social partners may be attributed to the fact that the ‘right of association’ is excluded from the competences for EU legislation under Article 153 (5) TFEU.58 Almost no cases of the Court of Justice of the EU or of national Courts in which this Article has been invoked are reported.59 There has been, however, a bit more experience with the ‘model’ article of Article 12 CFREU, Article 11 ECHR. A dozen cases at the European Court of Human Right in the past 15 years have shed more light on the interpretation of Article 11 ECHR by that Court. Before 2000 the ECtHR had adopted a ­minimalist interpretation of the right of association60 as regards its collective aspect (the right to collective bargaining and the right to strike). As van Hiel has shown the ECtHR case law did benefit individuals more than trade union unions. The Court’s individualist approach has encouraged trade union opponents to bring their cases before the Court, while discouraging trade unions from doing the same. The Court’s extensive protection of the negative right not to organise, while the positive right to organise was limited to a right that the trade union should be heard has been severely criticised over the years. Thus the Court has been blamed for misjudging the importance of trade unions and trade union rights at a time in which the influence of trade unions was already decreasing.61

56 International Labour Office, Freedom of Association, Digest, p 157, no 781. 57 See Dorssemont (n 9) 361–64. 58 See ibid, 343–44. 59 Apart from CJEU, 12 February 2015, C-396/13, Sähköalojen ammattiliitto and EU Tribunal, 16 November 2017, T-75/14, USFSPEI, ECLI:EU:T:2017:813. 60 Bercusson (n 2) 159. 61 van Hiel (n 28) 307–08.

Article 12  329 Since 2007/2008 the Court has widened its interpretation to encompass collective aspects.62 But the Court has also enlarged its maximalist interpretation of the individualist aspects of Article 11: the right of employees not to join a trade union.63 Fortunately the Court retained some of its prudence and did not extend this maximalist interpretation of the negative right for the employers too much.64 Finally the Court issued a number of more trade union-friendly ­judgments in a few other cases. Thus the overall picture of the interpretation of Article 11 by the ECtHR is still not really balanced and coherent. It looks like a grab-bag from which ­judgments with all sorts of orientations may be drawn. And that remains a worrying prospect now that the CJEU has been directed to base its interpretation of A ­ rticle 12 CFREU on the case law of the ECtHR on Article 11 ECHR. Brian Bercusson took a very positive view of the purpose of Article 12 of the EU Charter: to secure the presence and effectiveness of the social partners at all levels.65 We are still far away from that.

62 ECtHR, 12 November 2008, App No 34503/97, Demir and Baykara; ECtHR, 21 April 2009, App No 68959/01, Enerji Yapi-Yol Sen. 63 ECtHR, 11 January 2006, App Nos 52562/99 and 52620/99, Sorenson and Rasmussen; van Hiel (n 28) 295–96. 64 ECtHR, 2 June 2016, App No 23616, Geotech. 65 Bercusson (n 2) 169.

330

16 Article 15 – Freedom to Choose an Occupation and Right to Engage in Work SIMON DEAKIN

Article 15 – Freedom to Choose an Occupation and Right to Engage in Work 1.  Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation. 2. Every citizen of the Union has the freedom to seek employment, to work, to ­exercise the right of establishment and to provide services in any Member State. 3.  Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.

EXPLANATIONS Freedom to choose an occupation, as enshrined in Article 15(1), is recognised in Court of Justice case law (see inter alia judgment of 14 May 1974, Case 4/73 Nold [1974] ECR 491, paragraphs 12 to 14 of the grounds; judgment of 13 December 1979, Case 44/79 Hauer [1979] ECR 3727; judgment of 8 October 1986, Case 234/85 Keller [1986] ECR 2897, paragraph 8 of the grounds). This paragraph also draws upon Article 1(2) of the European Social Charter, which was signed on 18 October 1961 and has been ratified by all the Member States, and on point 4 of the Community Charter of the Fundamental Social Rights of Workers of 9 December 1989. The expression ‘working conditions’ is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union. The second paragraph deals with the three freedoms guaranteed by Articles 26, 45, 49 and 56 of the Treaty on the Functioning of the European Union, namely freedom of movement for workers, freedom of establishment and freedom to provide services.

332  Simon Deakin The third paragraph is based on Article 153(1)(g) of the Treaty on the Functioning of the European Union, and on Article 19(4) of the European Social Charter signed on 18 October 1961 and ratified by all the Member States. ­Article 52(2) of the Charter is therefore applicable. The question of recruitment of seamen having the nationality of third States for the crews of vessels flying the flag of a Member State of the Union is governed by Community law and national legislation and practice.

I. INTRODUCTION

A.  Context and Main Content The right to work is, at one and the same time, among the most fundamental of social rights and one of the most contested. It finds arguably its strongest expression in Article 1 of the Revised European Social Charter of 1996 (RESC, essentially unchanged from its original wording in the text of 1961) and also features prominently in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).1 In the wider context of these international human rights law provisions, Article 15 of the Charter is unusually worded: it refers not to a ‘right to work’, but to a right to ‘engage in work’, a more cautious and qualified expression, which could be read as implying that something less than a right to fair or decent work is implied. This sense is reinforced by the coupling in the title of Article 15 of the ‘right to engage in work’ with the ‘freedom’ to choose an occupation. In terms of its substance, Article 15 is as notable for what it does not say as for what it does. Article 15 makes no reference to the obligation of the state to maintain what Article 15 RESC calls a ‘high and stable level of employment’ and Article 6 ICESCR calls ‘full and productive employment under conditions safeguarding fundamental economic and social freedoms to the individual’. There is no reference in Article 15 to a duty on the state to provide vocational training and related forms of support for labour market participation, which again feature in both Article 1 RESC and Article 6 ICESCR, although a separate provision of the EU Charter, Article 29, refers to the right of access to a free placement service. In contrast to Article 23 UDHR, Article 15 is silent on the question of whether a right to work entails ‘just and favourable conditions of work’ and ‘protection against unemployment’. Where, by contrast, Article 15 is explicit, is in linking its contents to the economic freedoms of the EU’s internal

1 See generally C O’Cinneide, ‘The Right to Work in International Human Rights Law’ in V Mantouvalou (ed), The Right to Work (Oxford, Hart Publishing, 2015) ch 6; D Ashiagbor, ‘Article 15 – Freedom to Choose and Occupation and Right to Engage in Work’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart ­Publishing, 2014).

Article 15  333 market law: the freedoms, that is, to seek employment, to work, to exercise the right of establishment and to provide services on a cross-border basis. On the face of it, then, Article 15 expresses a version of the right to work from which elements of social protection have been stripped away, leaving a right of market access closely aligned with the ordoliberal spirit of the internal or single market. The dilution of what became Article 15 began during the drafting of the Charter in 1999 and 2000.2 Having said that, and accepting the obvious limitations in the wording of Article 15, the question remains of how far it can be used as an interpretive device to strengthen the social content of the employment relation. Article 15 might initially seem unpromising ground for such an exercise, not only because it refers to the right to work in apparently qualified terms, but because the very concept of the right to work is, in the eyes of many critics, of questionable value as a source of labour protection.3 Seeking to establish the effective parameters of Article 15 is an exercise in interpretation that must not only locate the Article in the wider context of EU law, including other provisions of the Charter, and in relation to international human rights law more generally, but must also make the case for the right to work as a coherent concept, capable of meaningful application in the context of the EU’s ‘highly competitive social market economy’.4 Closer inspection will suggest that the case against the right to work as a fundamental human right has been much overstated.5 While, within the framework of a market economy, human rights law cannot guarantee the provision of stable and well remunerated employment for all, it can ‘nudge’ states towards this end by providing criteria for evaluating the processes and mechanisms they use to implement labour market policies and to regulate work relations. In the context of the RESC and the ICESCR, the right to work has proved useful as a framework for assessing recent trends in social and economic policy, including the growing use of conditionality in the provision of social security benefits and the recent revival of workfare in several countries.6 It has also been used to provide a way to question the appropriateness of ‘austerity’ and ‘structural adjustment’ measures.7 The right to work does not automatically translate into a free-standing right to ‘decent’ or ‘fair’ work, but it can be seen as complementing and ultimately underpinning the commitments states make under the RESC and the ICESCR to respect a wide range of social rights over matters affecting 2 See s I.B, below. 3 See B Hepple, ‘A Right to Work?’ (1981) 10 Industrial Law Journal 65, 81; O O’Neill, ‘The Dark Side of Human Rights’ (2005) 82 International Affairs 427; J Nickel, ‘Giving Up on the Human Right to Work’, in Mantouvalou, The Right to Work, op cit, ch 8; A Bogg, ‘Only Fools and Horses: Some Sceptical Reflections on the Right to Work’ in Mantouvalou (n 1) ch 9. 4 This phrase appears in Art 3(3) TEU. 5 See generally S Deakin, ‘Article 1: the Right to Work’ in N Bruun, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017). 6 O’Cinneide (n 1). 7 Deakin (n 5).

334  Simon Deakin the employment relation in particular and labour market relations in general. This is the sense in which Article 1 RESC is sometimes said to be the cornerstone right, supporting all other provisions contained in the 1996 (and 1961) Charter, and which also explains the close functional relationship between Article 6 ICESCR and the substantive provisions relating to fair wages and working conditions set out in Article 7 of that text.8 The major difference between Article 15 and these other international human rights provisions is that in the case of EU law there are fewer ‘flanking’ provisions of a social nature. In contrast to the RESC and the ICESCR, EU law does not purport to provide anything like a comprehensive restatement of social rights. Although a number of significant social rights and freedoms do find expression in the CFREU, there are also notable gaps, such as the absence of a reference to the right to a minimum wage. EU law more generally suffers from serious gaps in its provision for social protection and regulation.9 On the face of it, the piecemeal nature of EU social law in general makes it more difficult for Article 15 to be given the kind of expansive reading applied to Article 6 ICESCR by the UN Committee on Economic, Social and Cultural Rights (CESCR), according to which that Article must be ‘applied in a manner that harmonises with the guarantees of dignity at work and other fundamental socio-economic rights set out in the Covenant’.10 The risk is that Article 15 will instead be given a narrow interpretation (from a social rights perspective) through invocation of the internal market freedoms referenced in paragraph (2),11 and which have no equivalents in the RESC or the ICESCR. To say that this is a risk does not, however, imply that it is the only possible reading of Article 15, or that it is the most convincing one, as we shall now explore. B.  Relationship to Other Provisions of the Charter There is no explicit linking of Article 15 to other provisions of the Charter but in this respect it is no different from Article 1 RESC and Article 6 ICESCR, both of which have been given a creative, ‘transversal’ reading.12 The question of how far Article 15 can both inform and be informed by other provisions of the Charter with a bearing on social rights depends in large part on how far the ‘right to engage in work’ in Article 15 is more than a bare right of access to work or employment of any kind. Building up from the most basic of protections recognised in international human rights law, it would seem to be axiomatic to 8 O’Cinneide (n 1); Ashiagbor (n 1). 9 See S Deakin, ch 4 in this volume. 10 This is the language contained in CESCR General Comment 18 on Art 18 (2005); see O’Cinneide (n 1). 11 On the relationship between the economic ‘freedoms’ of internal market law and social policy, see Deakin, ch 4. 12 O’Cinneide (n 1); Ashiagbor (n 1); Deakin (n 5).

Article 15  335 argue that the ‘right to engage in work’ must be read in a way that is consistent with the right not to be subjected to forced labour in Article 5.13 More generally, the content of Article 15 should both inform and reflect the right to human dignity in Article 1. The basis for this position is the argument that the ‘freedom to choose, which is at the heart of Article 15, encapsulates a right to self-­ determination when it comes to one’s economic activities’.14 Self-determination under Article 15, in turn, links to the idea that ‘self-realisation through work is an integral part of self-respect’15 for the purposes of Article 1. Of all the bodies charged with interpreting international human rights law, the UN Committee on Economic, Social and Cultural rights has so far gone the furthest in arguing that the right to access work is also a right to ‘decent work’, requiring a ‘living wage’ and working conditions compatible with ‘the preservation of individual workers’ physical and mental integrity’.16 The logic of this position is that work that does not provide the minimum basis for subsistence in this sense is incompatible with human dignity. There is a good case for interpreting Article 15 in a similar way in light of Article 1, referring to the inviolability of human dignity, and Article 3(1), which refers to the right to ‘physical and mental integrity’. Reading these provisions transversally with Article 15 could enable some protective substance to be given to the otherwise broadly expressed provisions of the Solidarity Title of the Charter, including Article 31 on fair and just working conditions,17 Article 32 on the prohibition of child labour and protection of young people at work18 and Article 30 on protection against unjustified dismissal.19 For similar reasons, Article 15 can be read as supporting the rights set out in Article 21’s general prohibition on discrimination20 and Article 23’s more specific reference to the right to equality between women and men.21 Other Articles of the Charter that have a bearing on Article 15 include Article 18 on the right to asylum and Article 45 on the right to free movement and residence. Potentially more problematic is the relationship between Article 15 and the adjoining Article 16 on the freedom to conduct a business.22 Superficially, at least, these two rights should be closely linked as they both give expression to the freedom to take part in economic activity. In terms of their content they appear to overlap, because Article 15 is not confined to protecting the rights of workers; its reference to the right to ‘pursue a freely chosen or accepted occupation’ 13 On Art 5, see N Bruun and J Unterschütz, ch 10 in this volume. 14 Ashiagbor (n 1) 425. 15 ibid. 16 UN Committee on Economic, Social and Cultural Rights, General Comment No 18 (2005), para 7. 17 See K Lörcher, ch 24 in this volume. 18 See A Jacobs, ch 25 in this volume. 19 See M Schmitt, ch 23 in this volume. 20 See N Bruun, ch 19 in this volume. 21 See C Kollonay, ch 20 in this volume. 22 On Art 16, see B Veneziani, ch 17 in this volume.

336  Simon Deakin could be read as extending to the rights of the self-employed to pursue the trade or profession of their choice, whether or not they choose to do so through the medium of a registered business or enterprise. Article 16 has not, however, been confined to reasoning of this type; as is well known, it has been expanded to create a right of businesses not to be subjected to regulations deemed to be excessively onerous or ‘restrictive’.23 This development prompts the question of how far Article 15 might be given a similar, deregulatory reading. For example, one form this might take would be to read the protection conferred on the freedom to choose an occupation in Article 15 as an invitation to subject to legal scrutiny rules that could be seen as making self-employment unduly unattractive by imposing regulations on this type of labour provision. Critics of social protection may also wish to argue that unduly ‘restrictive’ labour regulation interferes more generally with the ‘right to engage in work’ by creating market distortions and closing off market access to disadvantaged groups. Whatever the merits of these arguments as economic claims,24 there is no coherent basis for them in international human rights law, which gives no credence to the idea that there is a right to work for a sub-standard wage or under working conditions that expose the individual to undue physical or mental risks. On the contrary, case law under Article 1 RESC and Article 6 ICESCR has taken the view that the right to work is a right to engage in work which, by its nature, meets certain standards of protection for the individual and respects their right to a living wage.25 Building on this wider interpretive understanding of the right to work, it could be argued that Article 15 qualifies or limits the deregulatory potential of Article 16. There is nothing in the framing of the Charter to suggest that Article 16 rights take priority over those in Article 15. On that basis, invoking Article 16 to call into question the effects of worker-protective rules and regulations could be met by the countervailing force of Article 15. C.  Relationship to Other Relevant Instruments i.  EU Instruments As the Explanations indicate, the text of Article 15(2) links explicitly to the internal market freedoms set out in Articles 26, 45, 49 and 56 TFEU,26 as well as to the freedom to pursue a chosen occupation as recognised in the case law of the CJEU in decisions from the mid-1970s.27 The link to the internal market 23 CJEU, 18 July 2013, C-426/11, Alemo-Herron v Parkwood Leisure Services Ltd. 24 For discussion, see Deakin, ch 4. 25 O’Cinneide (n 1); Deakin (n 5). 26 Covering, respectively, the establishment of the internal market, the free movement of persons, freedom of establishment and freedom to provide services. See Deakin, ch 4. 27 Case 4/73 Nold [1974] ECR 491, judgment of 14 May 1974; Case 44/79 Hauer [1979] ECR 3727, judgment of 13 December 1979; Case 234/85 Keller [1986] ECR 2897, judgment of 8 October 1986.

Article 15  337 provisions of the Treaty has the effect of restating the freedom to engage in cross-border economic activities as a human right. These freedoms are already deeply embedded in the fabric of EU law and practice as a result of the Court’s expanding internal market jurisprudence. The reference in the Explanations to Article 153(1)(g) TFEU is intended to reinforce the effect of Article 15(3) in providing a right of third country nationals to equivalent working conditions to those of EU citizens when working in the territory of a Member State. The reference to Article 19(4) RESC has the same effect. The result is that third country nationals must not be treated less favourably in relation to remuneration, working conditions, trade union membership and the benefits of collective bargaining. In these respects, Article 15(2) confirms EU Treaty law but, consistent with the principle of conferral in Article 51(2), does not extend it.28 Additional provisions of primary EU law with potential relevance to Article 15 include Article 3(3) TEU, which among other things commits the Union to the promotion of ‘social justice and protection’ as well as ‘social … cohesion’, and the ‘horizontal social clause’ contained in Article 9 TFEU, which requires the Union, when defining and implementing its policies, to take into account the promotion of ‘adequate social protection [and] the fight against social exclusion’. Various provisions of secondary EU law on which Article 15 has a bearing are discussed further below. ii.  Council of Europe Instruments There is no reference to a right to work as such in the European Convention on Human Rights (ECHR). There is a prohibition on forced labour, in Article 4, but this has not been given the kind of expansive ruling that would see it invoked to support a right to decent work. On the contrary, the European Court of Human Rights (ECtHR) has on several occasions rejected the idea that workfare or similar forms of conditionality in social security provision could amount to forced labour.29 By contrast, Article 1 RESC, as we have seen, articulates a version of the right to work that is at the more protective end of the spectrum of such measures in international human rights law. Under Article 1 parties must ensure an ‘effective exercise of the right to work’ and to that end undertake four specific obligations: acceptance, as a ‘primary’ aim, of the ‘achievement and maintenance of as high and stable a level of employment as possible’; effective protection of ‘the right of the worker to earn his living in an occupation freely entered upon’; the provision

28 Ashiagbor (n 1) 433. See further the discussion of the rights of third country nationals in s II.B.i, ii below. 29 X v Netherlands (1976) 7 DR 161; Talmon v Netherlands [1997] EHRLR 448. See also the decision of the UK Supreme Court in R (Reilly) v Secretary of State for Work and Pensions [2013] UKSC 68 (the ‘Poundland case’).

338  Simon Deakin of ‘free employment services for all workers’; and the provision of appropriate ‘vocational guidance, training and rehabilitation’.30 At the outset of the process of drafting the EU Charter in January 2000, what became Article 15 was described as a ‘right to work and choose an occupation’ that would also cover the ‘objective of a high level of employment, freedom to choose and engage in an occupation’. Article 1 RESC was cited as a relevant source for this text, along with point 4 of the 1989 Community Charter of Fundamental Social Rights.31 By June 2000 the relevant text continued to refer to the ‘right to work’, as well as the right of a person to choose ‘his or her work’ and to ‘enjoy job protection’. There was also a reference to the right to ‘engage in an occupation or commercial activity, and to have access to a free job placement service’.32 However, by 14 September of the same year the provision had been reduced to stating, ‘Everyone has the right to work for his living and to engage in a freely chosen or accepted occupation’,33 and a week later the final wording of Article 15(1) had emerged: ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’.34 In this process of continual dilution, much of the original link to Article 1 RESC had been lost: the reference to a high level of employment had gone completely and the ‘right to work’ had become the right to ‘engage in work’. It is not clear, however, that the changes made to Article 15 in the course of its drafting can be read as entirely removing its potential as a source of social rights content for the employment relation. The shift from the ‘right to work’ to the ‘right to engage in work’ can be understood as signifying a move to a mere right to offer labour service or services, saying nothing about the content of the resulting relationship. But this may be reading too much into the change. After all, it is still ‘work’ to which the right relates. If the term ‘work’ can be given a social content, consistent with the notion of ‘decent work’, the drafting changes made during 2000 are neither here nor there. The key question, then, is whether Article 15 can be given an interpretation consistent with the broader trend in international human rights law to align Article 1 RESC and Article 6 ICESCR with the idea of decent work. As Colm O’Cinneide has argued, a ‘common interpretative approach’ aligning Article 1 and Article 6 has been emerging over time to the point where it is ‘generally acknowledged to be highly authoritative’ and ‘a significant point of reference for national governments, courts, civil society, and other international bodies’.35 As we have seen, this approach argues for convergence of the ‘right to work’ with the concept of ‘decent work’.



30 See

Deakin (n 5). 4112/2/00 REV 2, Brussels, 27 January 2000, at p 6. 32 CHARTE 4373/00, Brussels, 23 June 2000, at p 2. 33 CHARTE 4470/00, Brussels, 14 September 2000, at p 7. 34 CHARTE 4470/1/00 REV 1, Brussels, 20 September 2000, at p 8. 35 O’Cinneide (n 1) 115. 31 CHARTE

Article 15  339 Under Article 52(3) of the Charter, insofar as Charter rights overlap with rights set out under the European Convention on Human Rights, they must not be interpreted so as to confer less protection than that implied by the Convention. No similar reference is made to rights set out in the RESC. However, given the role played by Article 1 RESC in the drafting of Article 15, the case law and practice of the European Committee on Social Rights I in interpreting Article 1 can be regarded as relevant for the interpretation of Article 15.36 iii.  ILO Instruments The ILO’s Employment Policy Convention (Convention No 122 of 1964) commits State Parties to undertake ‘an active policy designed to promote full, productive and freely chosen employment’.37 Such policies should have the aim of ensuring not only that there is work for all those who are seeking it but that ‘such work is as productive as possible’38 and that there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his skills and endowments in, a job for which he is well suited, irrespective of race, colour, sex, religion, political opinion, national extraction or social origin.39

Thus the Convention succeeds in joining the idea of equality of access to the labour market with the principle that work should by its nature be ‘productive’. The ILO’s Decent Work agenda was first developed in the early 2000s and takes a number of forms, including the provision of technical assistance to Member States in the implementation of labour standards and the cross-national benchmarking of social and economic development. The ILO has drawn up over 100 Decent Work Country Programmes (DWCPs).40 Only a small proportion of these cover European countries, and none of them refers to a current EU Member State. However a number of European countries with which the EU has association agreements and which, as such, are seeking EU membership, currently have DWCPs with the ILO.41 In December 2015 the United Nations adopted the concept of decent work as part of its 2030 Agenda for Sustainable Development42 and Sustainable Development Goal 8 refers to the achievement

36 Ashiagbor (n 1) 432; B Hepple, ‘The EU Charter of Fundamental Rights’ (2001) 30 ILJ 225, 226. 37 ILO Convention Concerning Employment Policy (C122, 1964), Art 1(1). 38 ibid, Art 1(2)(b). 39 ibid, Art 1(2)(c). 40 See ILO, ‘Decent Country Work Programmes (DWCPs)’, http://www.ilo.org/global/about-theilo/how-the-ilo-works/departments-and-offices/program/dwcp/lang--en/index.htm. 41 Albania, the Former Yugoslavian Republic of Macedonia, Moldova, Montenegro, Serbia and Ukraine: http://www.ilo.org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/ program/dwcp/WCMS_560739/lang--en/index.htm. 42 United Nations, Transforming Our World: The 2030 Agenda for Sustainable Development (Geneva, United Nations, 2015), https://sustainabledevelopment.un.org/content/ documents/21252030%20Agenda%20for%20Sustainable%20Development%20web.pdf.

340  Simon Deakin of ‘sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all’.43 This wider recognition of the importance of the concept of ‘decent work’ is a further argument for its relevance in the interpretation of Article 15. iv.  UN and Other Instruments As noted above, Article 6 ICESCR has been given an expansive interpretation by the UN Committee on Cultural, Economic and Social Rights. The Committee’s Comment No 18, issued in 2005, states that the right to work is ‘essential for realising other human rights and forms an inseparable and inherent part of human dignity’44 and that it contributes to ‘the survival of the individual and to that of his/her family, and in so far as work is freely chosen and accepted, to his/her development and recognition within the community’.45 Comment No 18 also makes explicit the link between the right to work and ‘decent work’, which concretely refers to the right to a living wage and working conditions consistent with physical and mental integrity. Other international human rights instruments, informed by UN practice, make this link. For example, Article 15 of the African Charter of Human and People’s Rights states that ‘Every individual shall have the right to work under equitable and satisfactory conditions’, while Article 6 of the American Convention on Human Rights in the Area of Economic, Cultural and Social Rights (the San Salvador Convention) provides that ‘Everyone has the right to work, which includes the opportunity to secure the means for living a dignified and decent existence by performing a freely elected or accepted lawful activity’. These provisions are further evidence of international convergence around the idea of a right to decent work. II. CONTENT

A.  General Observations In international human rights law, the right to work is recognised to be complex and multi-layered. The interpretations which have developed over time of ­ Article 1 RESC and Article 6 ICESCR suggest that it can encompass the following categories:46 (i) freedom to enter and pursue a chosen trade or occupation; (ii) freedom to seek, accept and perform employment;

43 ibid,

21.

44 O’Cinneide

(n 1). Comment No 18, para 7. 46 See O’Cinneide (n 1); Ashiagbor (n 1); Deakin (n 5). 45 General

Article 15  341 (iii) protection against discrimination in relation to work; (iv) freedom from coercion in relation to work; (v) access to vocational training and other forms of labour market support; (vi) access to work which is productive, sustainable and rewarding (‘decent work’). These categories can be thought of as implying rights to access the labour market expressed at varying levels of substantive protection for the individual as a market actor or participant. Categories (i) and (ii) imply that the state must guarantee access to the labour market by removing formal barriers and incapacities, whether these arise through its own actions or through the exercise of private power, and by ensuring equality of treatment. Category (iv) goes further in requiring the state actively to suppress forms of work that involve force and coercion, including slavery, indenture and trafficking. Category (v) goes further still in requiring the state to take steps positively to assist labour market participation and category (vi) goes furthest of all in placing the state under an obligation to regulate work with the aim of ensuring that it complies with certain minimum standards. In the case law and practice of the RESC and ICESCR, category (vi) is the most contentious of these rights and its scope is the least certain. The question to be considered in the context of Article 15 is how far all or some of the rights just set out can be read into the parsimonious wording of that provision. Categories (i)–(iii) are to a large extent reflected in its wording and, more precisely, in the phrasing found in each of its three paragraphs. Category (iv) is the subject of a separate Charter provision, namely Article 5, as is category (v) (Article 29). Category (vi) is not expressly mentioned in Article 15 or elsewhere in the Charter, and its exclusion appears to have been deliberate in light of the process that led to the drafting of the Article in 1999 and 2000. However, this is not the end of the matter as category (vi) is capable of coming within the concept of the ‘right to engage in work’, which appears in the title and first paragraph of the Article and falls to be construed by reference to the generally understood interpretive conventions of international human rights law.47 B.  Field of Application i.  Personal Scope of Application The rights and freedoms set out in paragraph 1 of the Article apply to ‘everyone’; those in paragraph 2 apply to ‘citizens’ of the Union; while those in paragraph 3 refer to ‘nationals of third countries authorised to work in the territories of the Member States’. Thus the core of the Article, contained in paragraph 1, is of



47 O’Cinneide

(n 1).

342  Simon Deakin universal application, in the sense that the rights and freedoms set out there do not depend, for example, on an individual having worker or employee status. They apply also to the self-employed and to applicants for work. The restriction of the rights set out in paragraph 2 to ‘citizens’ mirrors the approach taken to the personal scope of the internal market freedoms as set out in EU law in general and under the TFEU in particular, to which this paragraph refers. Similarly, the rights of third country nationals set out in the third paragraph are confined, as are those of EU law in general, to individuals working legally in the territory of a Member State, and do not extend to the right to access the territory of other Member States.48 The open-ended phrasing of Article 15 leaves open the question of whether the rights it confers are intended to protect corporate entities as well as human persons. Although Article 15 is contained in the ‘Freedoms’ Title of the Charter rather than in the ‘Solidarity’ Title, and on that basis could be read as safeguarding corporate interests in the same way that Article 16 has been read as doing, in other respects Article 15 does not lend itself to the protection of the rights of entities. A corporate entity does not engage in work as such, nor does it pursue a profession. An individual may wish to use a corporate entity to pursue a trade or profession, and on that basis it could be argued that rules restricting the use individuals can make of the corporate form, or which might make incorporation or registration of a business difficult or costly, could to this extent fall under Article 15, although a claim under Article 16 would seem on the face of it to be a more plausible route. The reference to ‘citizens’ in the second paragraph of Article 15 suggests that the rights it protects are those of human persons, not entities, and the same point applies to the rights set out in the third paragraph, which can only benefit nationals of third countries authorised to ‘work’ in a Member State. ii.  Material Scope of Application By virtue of the principle of conferral set out in Article 5(2) TEU and reinforced for this purpose by Article 6(1) of the same Treaty, the rights and freedoms set out in the Charter cannot in any way extend the competences of the Union.49 Because the Union has limited competences in the field of social policy, Article 15 is similarly limited. To reinforce the point, Article 52(3) provides that insofar as Charter rights overlap with rights contained in the Treaties, they are to be exercised under the conditions and within the limits set out in the Treaties. It is perhaps stating the obvious to observe that Article 15 does not currently operate as a horizontal social clause directly regulating the content or shaping the meaning of national labour laws, nor, a fortiori, of collective agreements or



48 Ashiagbor 49 See

(n 1) 432. K Lörcher, ch 7 in this volume.

Article 15  343 work contracts operating under national legal systems.50 It is more difficult to say exactly what Article 15 is capable of doing. In principle, in common with other provisions of the Charter, it can be invoked as a guide to interpretation in the context of primary and secondary EU law; that is to say, Treaties, directives, regulations and other legal measures. The opportunity to invoke Article 15 may also arise in relation to other aspects of EU law and practice, including, for example, the European Semester, euro-zone-specific governance and ­measures mixing legal and policy, such as the European Pillar of Social Rights.51 The issue to explore therefore is how far existing provisions of EU law and practice provide an opportunity to invoke one or more of the meanings attributed by Article 15 to the right to work. C.  Specific Rights i.  Freedom to Enter and Pursue a Chosen Trade or Occupation This most basic of the market-access rights protected by Article 15, the right ‘to pursue a freely chosen or accepted occupation’, largely overlaps with rights established by the case law of the then ECJ in the 1970s and 1980s.52 In the first case on Article 15 to reach the CJEU, Fries,53 the Court was called on to strike down EU secondary law prohibiting persons over the age of 65 from acting as pilots in commercial air transport. In upholding this restriction, the Court noted that the right to enter and pursue a chosen occupation under Article 15 had to be read in light of limitations referred to in Article 52(1) of the Charter,54 and was, moreover, ‘not an absolute right’ but one that had to be ‘considered in relation to its social function’. This meant that it could be limited by ‘objectives of general interest’.55 In this case the restriction was, the Court ruled, justified by the requirements of aviation safety, and was not disproportionate.56 As we have seen,57 the general right to enter and exercise a profession set out in paragraph 1 is vested in ‘everyone’; the more specific right to exercise the right

50 Insofar as a Charter right overlaps with or underpins a mandatory general principle of EU law, some kind of horizontal effect may be possible (Case C-414/16, Egenberger v Evangelisches Werk für Diakonie und Entwicklung eV, Judgment of 17 April 2018, at paras 76–77, referring to Article 21 of the Charter). See the discussion by K Lörcher, ch 7. 51 On the relationship between the Charter, the European Semester process and the European Pillar of Social Rights, see Deakin, ch 4. 52 Case 4/73 Nold [1974] ECR 491, judgment of 14 May 1974; Case 44/79 Hauer [1979] ECR 3727, judgment of 13 December 1979; Case 234/85 Keller [1986] ECR 2897, judgment of 8 October 1986. 53 Case C-190/16, judgment of 5 July 2017. See A Jacobs, ch 3 in this volume. 54 Case C-190/16, Fries, at para 72. 55 ibid, para 73. 56 ibid, para 78. 57 S II.B.i, above.

344  Simon Deakin of establishment or supply services or on a cross-border basis in paragraph 2 is confined to EU citizens. This contrast prompts the question of whether the general right has a potentially wider application than the specific right. Does it, for example, provide a right to non-citizens resident in EU Member States to exercise their chosen profession? The right to access the labour market in this sense is distinct from the right to equal treatment in Article 15(3), which applies to third-country nationals once they are authorised to work in the Member State in question. The issue with respect to Article 15(1) is whether there is a prior right to be authorised to work. The issue of third country nationals’ rights is within the scope of EU law: Article 67(2) TFEU grants the Union competence to adopt a common policy on asylum and immigration ‘which is fair to third party nationals’, and the Union had had a Common European Asylum System in place since the late 1990s. Article 18 of the Charter refers in general terms to a right to asylum that must accord with the rules of the Geneva Convention of 1951 and Geneva Protocol of 1967.58 The Reception Conditions Directive (recast in 2013) provides that Member States must grant applicants for asylum ‘effective access to the labour market’ generally within nine months of the date of their application; the Member State may set out the conditions on which access is granted and may choose to give priority to EU citizens and citizens of other EEA states.59 Whether these restrictions are ‘fair to third party nationals’, as Article 67(2) TFEU puts it, is an issue that could be reviewed in future, using the frame of the right to work as set out in Article 15. ii.  Freedom to Seek, Accept and Perform Employment The right to access the labour market as a wage-earner, mirroring the right to do so as a professional or self-employed person, is, it might be thought, a necessary corollary of the ‘right to engage in work’ referred to in the title of Article 15 and in paragraph 1. The capacity to enter into an employment contract is a foundational aspect of the private law (and hence labour law) systems of the Member States, but it is by no means the case that all labour market actors have such capacity. Third country nationals may be denied the right to enter into paid employment even when they are legally resident in the territory of a Member State. However, as we have just seen, the Reception Conditions Directive requires Member States to grant the right to work to asylum seekers within nine months of their first asylum application.60 In 2016 the Commission adopted an Action Plan on the integration of third country nationals that stressed ‘the importance of refugees’ integration in training, employment and society in 58 See M Den Heijer, ‘Article 18 – Right to Asylum’ in Peers et al (n 1). 59 Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), Art 15. 60 ibid.

Article 15  345 general’ and called on Member States to take steps ‘necessary to facilitate their labour market participation’.61 Reading Article 15 in light of the Action Plan, it is arguable that, in this instance, the right to engage in work goes beyond a bare right to enter into a work or employment contract to encompass a right to the assistance of the Member State in obtaining skills and other resources needed to participate in the labour market. Also relevant in this context is the issue of the rights of third country nationals entering an EU Member State for the purpose of work or employment (as opposed to doing so for the purpose of seeking asylum). Under the Single Permit Directive of 2011,62 Member States are required to have a single application procedure, including a common work and residence permit, for third country nationals and their family members and, once they are lawfully resident, to grant them equal treatment rights with respect to working conditions and social security. Under the Blue Card Directive of 2009,63 a number of more specific rights are granted to highly skilled professionals. Although workers in this group can enter a Member State to work only if they already have a valid job offer or employment contract, after two years they can seek other employment in that Member State without the original employer’s authorisation. After 18 months they can move to another Member State (although at this point a new job offer or employment contract is required). After five years of legal residence in one or more Member States, they have the right to a long-term residence permit that gives them the right to free movement within the Union territory as a whole. A much more restrictive regime operates for seasonal workers under a Directive of 201464 that enables a worker falling into this category to stay in the Member State concerned and exercise their professional activity for up to nine months in a given 12-month period. As in the case of asylum seekers, Article 15 could in principle have a role in the interpretation of these various Directives and, in particular, in assessments of the legality of the restrictions on the right to work that they contain. iii.  Protection Against Discrimination in Relation to Work The right to equal treatment is generally regarded as implicit in the right to work and has long been regarded as such in the interpretation of Article 1(2) ESC.65 With the adoption of the Revised ESC in 1995 the focus of interpretation turned to the newly adopted provisions dealing specifically with protection against 61 COM(2016) 377 final, Brussels 7.6.2016, at p 9. 62 Directive 2011/98/EU. See C Landa, ‘“We Asked for Workers …” Legal Rules on Temporary Labor Migration in the European Union and Germany’ (2017) 39 Comparative Labor Law and Policy Journal 143, 146–47. 63 Directive 2009/50/EC; Landa, ibid, 147–49. See also the proposed revisions to this Directive set out in COM(2016) 378 final. 64 Directive 2014/36/EU; Landa (n 62) 149–51. 65 Deakin (n 5).

346  Simon Deakin discrimination (Articles 20, 27 and in particular Article E RESC). In the same way, Article 15 can be seen as linking to the more specific anti-discrimination provisions of Articles 21 and 23 of the Charter. Significantly, Article 21 provides an open-ended list of protected characteristics.66 iv.  Freedom from Coercion in Relation to Work As in the case of the right to protection against discrimination, the right to protection against forced or coerced labour, implicit in Article 15, is spelled out more explicitly in a separate Charter provision, Article 5.67 v.  Access to Vocational Training and Other Forms of Labour Market Support This right, explicitly set out in Article 1(4) RESC, is arguably implicit in Article 15. It is spelled out explicitly in Article 29 of the Charter, which refers to the right to a ‘free placement service’.68 This links to primary and secondary EU law on employment promotion, in particular Title IX (Part III) TFEU. Article 145 TFEU calls on the Union and the Member States to ‘work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and adaptable workforce and labour markets responsive to economic change’. Given the active involvement of Member States in the European Employment Strategy over time and its embedding in the European Semester process, there may be limited scope for the invocation of Articles 15 and 29 in this context, but they can be read as lending legal weight to certain provisions of the ­European Pillar of Social Rights, in particular Principle 4 on ‘active support to ­employment’.69 vi.  Access to Work which is Productive, Sustainable and Rewarding (‘Decent Work’) As we have seen, case law and practice with respect to Article 1 RESC and Article 6 ICESCR have gone a long way toward recognising that the ‘right to work’ is a right to have access to ‘decent work’ in the sense of work that pays a 66 See N Bruun, ch 19 in this volume. In Case C-190/16, Fries, Judgment of 5 July 2017, the Court, as well as rejecting an argument under Art 15 (see above, section II.C.i), ruled that an age restriction applying to pilots of commercial aircraft did not contravene Art 21(1). 67 Bruun and Unterschütz, ch 10. 68 See D Ashiagbor, ‘Article 29 – Right of Access to Placement Services’ in Peers et al (n 1). 69 The ‘rights’ set out here refer, among other things, to ‘timely and tailor-made assistance to improve employment or self-employment prospects’, ‘support for job search, training and requalification’, ‘transfer [of] social protection’ and ‘training entitlements during professional transitions’. Young people have the right to ‘continued education, apprenticeship, traineeship or a job offer of good standing within 4 months of becoming unemployed or leaving education’ and the unemployed have the right to personalised, continuous and consistent support’ and the long-term unemployed the right to an in-depth individual assessment at the latest at 18 months of unemployment’.

Article 15  347 living wage and does not entail undue risks to the physical and mental integrity of the worker. In the context of the EU Charter, the ‘right to engage in work’ in Article 15 should be read with regard to the rights and freedoms set out in the Solidarity Title, in particular the right to fair and just working conditions (Article 31)70 and the right to protection against unjustified dismissal (Article 30).71 To date, opportunities to invoke Article 15 in this extended sense of a right to decent work have been very limited. The CJEU has mostly declined invitations to consider the relevance of the social rights provisions of the Charter in the context of complaints concerning austerity policies imposed by the Commission (in conjunction with the ECB and IMF) during the sovereign debt crisis.72 The Court’s response was disappointing and contrasts with the more dynamic approach taken by the European Committee on Social Rights when interpreting Article RESC in the context of the crisis. A potential future role for Article 15 lies in influencing the development of social metrics as part of the European Semester process and in facilitating the implementation of the European Pillar of Social Rights.73 The ‘social scorecard’ developed within the framework of the Pillar sets out a basis for benchmarking the performance of the Member States by reference to criteria purporting to measure social outcomes. The idea that social cohesion and integration measures should form part of the assessment of national economies for the purposes of euro-zone governance is also coming onto the policy agenda in that context. So far, the debate around social metrics has been largely technical, but there is a strong case for infusing a human rights logic into this discussion. The ‘mainstreaming’ of Charter rights into metrics could take the form, for example, of setting targets consistent with aspects of the ‘decent work’ agenda, in particular the concept of a living wage, and the related idea of working conditions that provide the basis for maintaining the physical and mental integrity of the individual worker. To this end, the advances made by the ECSR in developing social indicators to benchmark compliance with the RESC74 could provide a useful model.

70 K Lörcher, ch 24. 71 M Schmitt, ch 23. 72 Case C-128/12, Sindicato dos Bancários do Norte, Order of 7 March 2013 and Case C-264/12, Sindacato Nacional dos Profeissionais de Seguro v Fidelidade Mundial, Order of 26 June 2014; although see also Case C-8/15, P. Ledra Advertising v Commission and ECB, Judgment of 20 September 2016, in which the Court found that Art 17 of the Charter was of relevance in the context of the restructuring of the Cypriot banking sector during the crisis, and Case C-258/14 Florescu v Casa Judeţeană de Pensii Sibiu, Judgment of 13 June 2017, in which the Court ruled that it could treat the Memorandum of Understanding of 23 June 2009 between Romania and the European Commission as an act of a Union institution within the meaning of Art 267 TFEU, and interpret it accordingly (the Court went on to rule that national legislation supposedly derived from the Memorandum did not breach Art 17 CFREU). 73 See Deakin, ch 4. 74 See Deakin (n 5).

348  Simon Deakin D. Limitations No express limitations are set out in Article 15, but, in common with other Charter provisions, it must be read in light of Article 52(1) according to which limitations on Charter rights may be made if they are consistent with the principle of proportionality and ‘necessary’ to ‘genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.75 While there is, in principle, limited scope for the fundamental market rights and economic freedoms set out in paragraphs 1 and 2 of the Article to be qualified, there are instances in which EU secondary law has recognised the right of Member States to limit the right to work, as in the provision of the Reception Conditions Directive which permits them to grant applicants for asylum access to work, subject to conditions that would not apply to EU or EEA citizens.76 More generally, the rights of third country nationals, as set out in the Single Permit Directive, the Blue Card Directive and the Seasonal Workers Directive are significantly more restricted than those that apply to EU citizens. How far these limitations are compatible with Article 15, which in paragraph 1 refers to ‘everyone’ having the right to engage in work and to engage in their freely chosen profession, is open to question and may yet prove to be a live issue in the context of the interpretation of these various Directives. A wider issue is how far considerations of economic costs might be relied on by Member States to qualify the labour market rights implicit in wider conceptions of the right to work that are potentially relevant to the interpretation of Article 15, in particular the idea that it might imply a right to decent work. There has been a growing use of economic arguments to qualify social rights since the decisions of the Court in Viking and Laval.77 This development is contested and its significance falls to be assessed in the light of wider arguments for the relationship between social rights and the Union’s so-called ‘economic constitution’.78 E. Enforcement The supposed non-enforceability of the right to work has long been a matter of concern, but it is probably going too far to say that this right lies entirely within the realm of policy. The ECSR has been able to deploy Article 1 RESC to put

75 See the discussion of Art 52(1) in relation to freedom of occupation in Case C-190/16, Fries, Judgment of 5 July 2017, paras 72, 74. 76 Directive 2013/33/EU, Art 15(2); see the discussion above, s II.C.i–ii. 77 Case C–438/05, International Transport Workers’ Federation v Viking Line ABP, Judgment of 11 December 2007; Case C–341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Judgment of 18 December 2007. 78 See generally, Deakin, ch 4.

Article 15  349 pressure on states to explain and justify decisions on the scope of active labour market policy, and it has found states in breach of the Charter for a failure to devote sufficient resources to vocational training and support. It has also taken advantage of the opportunities provided by the reporting cycle for the RESC to initiate a debate about the appropriateness of measures of austerity and structural adjustment.79 As there is no similar cycle of reporting for the EU Charter, opportunities to use Article 15 to similar effect will not so readily arise. There is scope in principle for Article 15 to inform the process of developing social metrics within the European Semester process and to shape the implementation of the European Pillar of Social Rights,80 although it remains to be seen whether these opportunities will be taken up in the future. III. CONCLUSION

The right to work is one of the most foundational social rights, but also one of the least appreciated. Controversy has surrounded the idea. Critics have maintained that, in the context of a market economy, the right to work can be nothing more than a rhetorical device; the state cannot guarantee fair employment for all. This is to underestimate the potential of the right to work as a human right. Human rights law can frame the way states approach issues of labour market access and employment policy more generally. Beginning with recognition for the most basic elements of market access, including the right to enter and practice a profession and the right to contract to supply labour services, the state, through the legal system, can take steps to protect the individual right to engage in work. It can proscribe discrimination on a number of protected grounds and can define these grounds or characteristics in a more or less open-ended way. It can prohibit slavery, forced labour and trafficking. Going further, it can provide vocational support and training to help equip individuals for participation in work. Going further still, the state can put in place measures to help ensure that work is sustainable in the sense of paying a living wage and meeting conditions of work that are consistent with the physical and mental integrity of the individual. In all these various respects, the concept of the right to work can assist in the development of international standards against which states can be held to account in the way they frame laws and policies relating to the labour market. Far from being an empty vessel, the right to work is a concept capable of being operationalised in concrete settings, including the rights of migrant workers to access employment, the application of austerity policies and the



79 Deakin

(n 5). ch 4.

80 Deakin,

350  Simon Deakin development of social metrics. How far Article 15 can be developed in this direction remains to be seen and is largely a development for the future. The drafting of Article 15 produced a parsimonious text that is silent on the issue of how far the right to engage in work implies a right to decent work. If, however, Article 15 can be read in alignment with other texts in international human rights law that give meaning to the right to work, in particular Article 1 RESC and Article 6 ICESCR, there is scope to explore the application to ­Article  15 of the decent work concept. In particular, a creative and imaginative reading of ­Article 15 would do something to counter-balance the expansive reading given by the Court to the freedom to conduct a business in Article 16 of the Charter.

17 Article 16 – Freedom to Conduct a Business BRUNO VENEZIANI

Article 16 Freedom to conduct a business The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.

EXPLANATIONS The Article is based on Court of Justice case law that has recognised freedom to exercise an economic or commercial activity (see judgments of 14 May 1974, Case 4/73 Nold (1974) ECR 491, paragraph 14 on the grounds, and of 27 September 1979, Case 230-78, SpA Eridania and others (1979) ECR 2749, paragraph 20 and 31 on the grounds) and freedom of contract (see inter alia Sukkerfrabiken Nykobing ­judgment, Case 151/78(1979) ECR 1, paragraph 19 of the grounds and judgment of 5 October 1999, C-240/97, Spain v Commission (1999) ECR I-6571, paragraph 99 on the grounds) and Article  119(1) and (3) of the Treaty on the Functioning of European Union, which recognises free competition. Of course, the right is to be exercised with respect for Union law and national legislation. It may be subject to the limitations provided for in Article 52(1) of the Charter.

I. INTRODUCTION

A.  Context and Main Content Article 16 must be considered a true novelty in the web of international legal sources and above all in the overall context of the EU’s economic and legal framework. Its analysis poses a number of theoretical, semantic, structural and functional problems. It must be said that the current formulation was changed

352  Bruno Veneziani during the debates in the Convention,1 which added the phrase ‘in accordance with community law and national laws and practices’. This acknowledges the limitations on this freedom, which had been ignored previously.2 Thus in relation to national laws and practices the CJEU stated already in the Nold case ‘if rights of ownership are protected by the constitutional laws of the Member States and if similar guarantees are given in respect of the right freely to choose and practice their trade or profession, the rights thereby guaranteed, far from constituting unfettered prerogatives, must be viewed in the light of the social functions of the property and activities protected thereunder’.3

Accordingly, the interpretation of Article16 must take into account: –– –– –– ––

Articles 2, 3(3) and 6 TEU and 9 TFEU; Title IX on employment and X on social policies TFEU; Articles 15 and 17 of the Charter; Articles 49 and 56 TFEU.

B.  Relationship to Other Provisions of the Charter Article 16 is included in Title II of the Charter and it is one tile of a general mosaic of ‘freedoms’. The overall mosaic presents a variety of formulations concerning both the nature of the juridical category and the quality of the protection. The Title includes rights to liberty and security (Article 6), to property (Article 17) and to engage in work (Article 15 (1)), as well as rights to various freedoms, including those of thought, conscience and religion (Article 11) and of assembly and association (Article 12), as well as freedoms to exercise establishment and provide services, to seek employment and to work (Article 15(2)). From the juridical point of view the freedom to conduct a business is a ­freedom. The quality of guarantees changes considerably according to the nature of the goods envisaged in the articles of the Charter: respect and protection for dignity (Article 1), only respect for academic freedom (Article 13), a simple guarantee of asylum (Article 18), a right to and respect for property (Article 17) and strong guarantee (shall be) for a number of other things. It must be noted that the freedom to conduct a business is no more than a simple freedom, weakly sustained by ‘recognition’ without any indication of the addressee of the freedom. The difference between Article 16 and the wording used in the provisions on labour rights used in the Charter is relevant. The formulas ‘guarantee’ (Article 27) or ‘protection’ or ‘respect’ (Article 34) and

1 Convent

50, Charte, 4487/00, 28 September 2000. 45, Charte, 4422/00, 28 July 2000; Convent 47, Charte, 4470/00, 14 September 2000. 3 CJEU, 14 May 1974, 4/73, Nold (1974) ECR 491, para 14. 2 Convent

Article 16  353 ‘to have a right’ (Articles 12, 15, 28, 29, 30 and 31) envisage a more meaningful enjoyment for workers. As for Article 16, it is clear that the Convention had no doubt in considering the freedom to conduct a business also as a complementary freedom of the economic fundamental freedoms (freedom of establishment, of services, goods, capital and movement). Anyway, in this case Article 16 lacks any reference to a specific legal position and it can thus be considered to be a ‘­principle’. The CJEU has moved in the same direction, taking the wording (freedom) of the article literally. In one case the AG considered Article 16 as general principle of Union law and distinguished clearly the ‘freedom’ to conduct a business from the ‘right’ to property.4 As concerns the relationship with Article 15, more recently the Court indicated that one essential aspect of this is the search for an occupation as an initial step in an itinerary for the full exercise of work.5 This was suggested by AG  Bobek, when he specified the difference between Articles 16 and 15. The latter covers a situation in which natural persons are concerned and issues ‘such as access to work and choice of an occupation’ and the former is more relevant ‘for legal persons and the way an already established business or an already chosen occupation is being carried out and regulated’.6 C.  Relationship to Other Relevant Instruments i.  EU Instruments Article 49 TFEU The case law of the CJEU related to Article 49 TFEU has enlarged the notion of establishment, but has also developed the ‘ideology of symmetry of rules’ in the sense that ‘the same principle underpins all Treaty provisions on freedom of movement and stated that the provisions on goods, services, workers and

4 On this point see K Lörcher, ch 7 in this volume (on Interpretation). See also in general AG Opinion, 19 February 2013, C-426/11, Alemo-Herron, para 48; the distinction is also found in CJEU, 31 January 2013, C-12/11, Denise McDonagh; D Spielmann, ‘Article 16’ in EU Network of Independent Experts on Fundamental Rights (eds), Commentary of the Charter of Fundamental Rights of the EU (June 2006) 158, http://ec.europa. eu/just/fundamental-rights/files/networkcommentary/final_en.pdf; it is an ‘individual fundamental right’ according to PM Froufe, ‘Article 16’ in A Silveira and M Canotikho (eds), Carta dos direitos Fundamentais da UE comentada (Coimbra, Almedina, 2013) 219; in the same vein see also PM Pacheco, ‘Article 16’ in C Monereo Atienza and JL Monereo Perez (eds), La Europa de los derechos. Estudio sistematico de la Carta de los derechos fundamentales de la UE (Granada, Ed Comares, 2012) 376. Art 16 is a ‘general principle of economic autonomy’, according to M Everson and R Correja Gonçalves, ‘Article 16’ in S Peers, T Hervey, J Kenner and A Ward, The EU Charter of Fundamental Rights – A Commentary (Oxford, Hart Publishing, 2014) 441; whether it is a right or a principle must be resolved according to specific cases, see C Malberti, ‘Article 16’ in R Mastroianni, O Pollicino, S Allegrezza, F Pappalardo and O Razzolini (eds), Carta dei Diritti Fondamentali della UE (Milano, Giuffrè, 2017) 317. 5 CJEU, 30 June 2016, C-134/15, Lidl, para 26. 6 CJEU, AG Opinion, 16 March 2016, C-134/15, Lidl, ECLI:EU:C:2016:498, para 27.

354  Bruno Veneziani establishment should be similarly construed’.7 This symmetry is consequently mirrored in the idea that restrictive measures should respect fundamental rights.8 The content of this freedom comprises a number of structural elements, including access to the market and the opportunity to make profits by pursuing an economic activity through a fixed establishment for an indefinite period.9 More recently the Luxembourg judges enlarged the content of Article 49 TFEU by specifying that four functional elements of the internal life of the establishment must be added: the nature and extent of the economic activity (such as the size of the production unit), the number of workers required for the purpose, and the freedom to scale down that activity or to give up an activity and establishment.10 The CJEU aims to enlarge the traditional analysis of Article 49 with Article 16 Charter. Thus the Court accepted that limiting the undertaking’s freedom to implement collective redundancies by an intervention of the public authority infringes Article 16 and that all these restrictions must be seen in light of EU law criteria: justification, suitability and necessity.11 Any national legislation must be in conformity with this structural and functional paradigm and must respect the fundamental principle of rendering access to the market ‘attractive’ and the law cannot ‘reduce considerably or even eliminate the ability of an economic operator to choose, to set up in a new market and to adjust subsequently their ability in the market’. This assessment will inevitably have a negative impact in terms of the infringement of workers’ fundamental rights.12 ii.  Other Instruments: The National Legal Context of the Member States Two points in particular must be underlined. The extent and manner in which the freedom to conduct a business is recognised in all constitutional texts varies greatly according to their ideological roots. The formula ‘to conduct a business’ is intended to be an element of economic activity (Czech Republic and Sweden) or is considered to be an expression of ‘entrepreneurial freedom’ (Finland, Hungary, Italy). In other cases the structure and functions of enterprises are included in more general formulas, such as: free economic initiative (Bulgaria), free and equal access to trade (Denmark), economic activity (Lithuania) or commercial activity (Finland) and entrepreneurial or other gainful activity (Slovakia). Many of these texts impose explicit limits on the exercise of the right to conduct a business.13

7 CJEU, 30 November 1995, C-55/94, Gebhard, ECR I-4165, para 21. 8 CJEU, 18 June 1991, C-260/89, ERT, ECR I-2925, para 42; 13 February 2014, C-367/12, Sokoll-Seebacher ECLI:EU:C:2014:68; 1 June 2010, C-570 and C-571/07, Blanco Perez and Others ECLI:EU:C:2010:300 concerning the protection of health in Article 35. 9 CJEU, 21 December 2016, C-201/15, AGET Iraklis, ECLI:EU:C:2016:972, para 50. 10 ibid, para 53. 11 ibid, paras 46, 52 and 53. 12 ibid, para 56. 13 See s II.D.

Article 16  355 The second point deals with the legal qualification of all kinds of economic activity or initiative. The impression is that the constitutional wordings also depend on the quality of the Constitution and the underlying political compromise. In some cases the texts are clear in qualifying all forms of private commercial initiative as rights (Cyprus, Estonia, Finland, Hungary, Sweden, Slovenia, Slovakia), whereas in the majority of cases it appears to be a freedom (Denmark, Spain, Italy, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovenia). In some other texts it derives from the ‘general physiology of the State’ based on free economic initiative (Bulgaria, Croatia) as the basis of a social market economy (Poland).14 II. CONTENT

A.  General Observations i.  The Legacy of Jurisprudence Lacking any legal text at the EU level the Luxembourg judges have elaborated important elements of their judicial culture concerning human rights in accordance with the European Convention on Human Rights (1950) and its First Additional Protocol (1952). Their inspirations included international sources and constitutional traditions of the Member States. Consequently, the CJEU extracted its sequence of corollaries in several decisions: as an expression of the right of property – envisaged by some national constitutions – and the right to pursue economic activity means ‘essentially’ to ‘choose’ and to ‘practice’ any trade or profession. But it is also interesting to note that the judges suggest that the right is not an unfettered prerogative and must be viewed in light of the social function of property ownership and activities and always conditioned by the public interest. Furthermore in the EU legal order limits are justified by the overall objective pursued by the Union, on condition that the substance of the rights is left untouched; in addition, as has been said15 regarding guarantees accorded to particular undertakings, such rights cannot be taken to protect commercial interests or opportunities as such because uncertainty is of the ‘very essence of economic activity’. The scope of the protection has been slowly enhanced by the inclusion of some further elements, such as (a) the maintenance of the market position of commercial actors and (b) the process of private economic planning.16 14 European Union Agency for Fundamental Rights (FRA), Freedom to Conduct a Business: Exploring the Dimensions of Fundamental Rights (fra, 2015, fra.europa.eu), para 231. 15 CJEU, 13 December 1979, C-44/79, Hauer, ECLI:EU:C:1979:290, para 17. 16 CJEU, 5 October 1994, C-280/93 Germany v Council, ECLI:EU:C:1979:290, paras 46 ff.

356  Bruno Veneziani The enlargement of the scope was increased step by step when the Court decided to frame the concept of the freedom to conduct a business as a civil law category of contractual autonomy, considered as an expression of contractual freedom and the right of property.17 In this broad context the formula ‘conducting a business’ is vague enough to be subject to a vast range of interpretation, including any activity that is legitimate in the market performed by one or several individuals ‘in company’ encompassing all stages – birth (setting up or funding), life (operating and continuing) and death (insolvency or closure) – of the business.18 ii.  ‘Creative’ Jurisprudence The first attempt to discover the meaning and content of a freedom to conduct a business was made by the CJEU, which is involved in a web of ‘constitutional’ rules envisaged by the Charter. The hard task of the Luxembourg judges, as described above, is to balance all kinds of fundamental rights, including those dealing with working people, taking into account the fact that fundamental rights are not ‘unfettered prerogatives and their enjoyment can be restricted in the light of the protection of the general interest of the Community system’.19 The evolution of the relevant jurisprudence started with the definition of the substantive elements composing the term ‘conduct’ and its internal sense. In principle it includes a potentially expansive set of actions aimed essentially at profit-making conducted by one or several individuals ‘in company’ or in a group. The freedom seems to encompass the full ‘life cycle’ of all activities, including the setting up, operating and closing of a business and marketing policy.20 The rule of Article 16 must be understood as referring to Article 49 TFEU on the freedom of establishment.21 The Court has confirmed its opinion and ideological trend to extend the focus of Article 16 and the meaning of conducting a business by indicating that the freedom not only relates to the establishment of a commercial activity but also the manner in which it is conducted.22 The trend since the promulgation of the Charter seems to confirm the previous approach when the judges included under the freedom of enterprise and to conduct a business –– a company’s right to a degree of certainty with regard to its own economic planning; 17 Both results in CJEU, 27 September 1979 C- 230/78 Eridania, ECLI:EU:C:1979:216, para 20; CJEU, 16 January 1979, C-151/78, Sukkerfrabikken Nykobing, ECLI:EU:C:1979:4, para 8. 18 EU Commission, Recommendation on a new approach to business failure and insolvency, C(2014)1500 final, 12 March 2014. 19 CJEU, 30 July 1996, C-84/95, Bosphorus, ECLI:EU:C:1996:312, para 21. 20 CJEU GC, 14 December 2011, T-52/09, Nycomed Danmark v EMA, ECLI:EU:T:2011:738, paras 89 ff. 21 CJEU, 14 March 2014, C-367/12, Sokoll-Seebacher (n 9), ECLI:EU:C:2014:68, para 39. 22 CJEU, 6 September 2012, C-544/10, Deutsches Weintor, ECLI:EU:C:2012:526, para 65; see also CJEU GC, 16 March 2016, T-100-15, Dextro Energy v Commission, ECLI:EU:2016:2012:194, para 93.

Article 16  357 –– the right to protection of commercial secrecy;23 –– an undertaking’s right to its established market position; and –– the right to open, unambiguous and clear advertising. In many cases the rationale of Luxembourg case law seems oriented towards the protection of market prerogatives, revealing an underlining ideology imbued with features of neoliberalism and ordoliberalism. The abovementioned economic ideology emerges in the case of an undertaking claiming that a decision taken on the basis of ex-Article 82 EC (now Article 102 TFEU) breaches the principle of contractual freedom. This principle – according to the AG in the case Alrosa24 – is one of the general principles of law, stemming from the freedom to act for persons and it is inseparably linked to the freedom to conduct a business, in accordance with Article 16.25 After the adoption of the Charter the CJEU stated that the freedom to determine the price of services also composes a substantial part of the freedom of contract26 and free competition. Thus, the generic freedom of Article 16 and these two principles are closely interwoven. But is also true that the ‘recognition’ contained in Article 16 must be interpreted in the legal context composed of Article 6(1) TEU and Article 52 CFREU.27 a.  General Considerations Article 16 applies to natural and legal persons. Article 54(2) TFEU states that ‘companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies and other legal persons governed by public or private law, save those which are not profit making’. The nature of the freedom protected by Article 16 does not admit exclusions; instead it includes some other kinds of more complex economic entities, such as groups of companies, mergers, concentrations and smaller businesses. The freedom is not limited to EU citizens and it guarantees the same protection to nationals of the other Member States as regards participation in the capital of companies or firms. A widely debated aspect is linked to the applicability of Article 16 to public enterprises or state-owned companies. It is accepted that these enterprises can

23 CJEU, 29 March 2012, C-1/11, Interseroh Scrap and Metals Trading, ECLI:EU:C:2011:821, para 43. 24 CJEU, AG Opinion, 17 September 2009, C-441/07 P, Commission v Alrosa, ECLI:EU:C:2010:377, para 224. 25 Ibid, para 225; see also CJEU, AG Opinion, 26 November 1998, C-7/97, Bronner, ECLI:EU:C:1998:569, para 56. 26 CJEU, 22 January 2013, C-283/11 Sky Österreich, ECLI:EU:C:2013:28 para 43. 27 ibid, para 42.

358  Bruno Veneziani be considered to come within the scope of competition law only if they conduct an economic activity.28 The freedom to conduct a business has a long history in Union law and originally was seen as a corollary of the fundamental right of property29 and was dealt with separately in the 1980s, ultimately achieving the status of a general principle of EU law.30 The linkage between Article 16 and the right of establishment, freedom of services and goods is so strong that in its more recent case law the CJEU has stated that any restriction envisaged by national legislation implementing Articles 49 and 56 TFEU may also imply restrictions on the exercise of freedom and rights included in Articles 15, 16 and 17 CFREU.31 The impression is that the CJEU’s assessment of the freedom to conduct a business in light of the right of establishment basically constitutes an attempt to halt the progress of labour law introduced by Member States over the past 20 years. The right of establishment includes the right of nationals of the Member States to take up and pursue activities and to manage undertakings under conditions laid down by their legislation. This right has been used to obstruct labour law at national level when Member States implement EU law. In one case national law conferred on an administrative authority the power to oppose collective redundancies after assessing labour market conditions in relation to the situation of the undertaking and the interests of the national economy. In this case the CJEU’s crucial argument was that the national measures invoking public control over collective dismissals entailed a limitation on the right of establishment and to freedom to exercise an economic activity, freedom of contract and free competition.32 In the Alemo-Herron case33 freedom of contract, according to the CJEU, is a fundamental component of Article 16 and any national law that implements a directive risks adversely affecting the very essence of the freedom to conduct a business. The decision of the Court was based on its interpretation of a specific article of Directive 2001/23/EC on protection of employees’ rights in the event of a transfer of undertakings. The Directive is aimed essentially at safeguarding the interests of employees. In their reasoning the Luxembourg judges should have referred mainly to Article 31 to ensure fair and just conditions for the workers affected by an event that is potentially dangerous to their working lives.

28 C Malberti, ‘Article 16’ in Mastroianni et al (n 5) 325; P Mercado Pacheco, ‘Article 16’ in Monereo Atienza and Monoreo Perez (n 5) 378–79. 29 CJEU, 27 September 1979, C-230-78, Eridania, paras 20 ff. 30 CJEU, 16 January 1979, C-151/78, Sukkerfrabikken Nykobing, para 73. 31 CJEU, 20 December 2017, C-322/16, Global Starnet, ECLI:EU:C:2017:985, para 50. 32 CJEU GC, 21 December 2016, C-201-15, AGET Iraklis (n 10) para 83. 33 CJEU, 18 July 2013, C-426/11, Alemo-Herron (5) ECLI:EU:C:2013:521, para 35.

Article 16  359 B.  Field of Application Article 16 does not make any reference to its field of application so that interpretation must take into account that the freedom to conduct a business must be enjoyed in accordance with EU law and national laws and practices. As EU law, Article 16’s field of application is not limited. It can be put in a framework composed of the right of establishment (Article 40 TFEU), the freedom to provide services (Article 56 TFEU) and free competition (Article 119(1) TFEU). According to the CJEU the freedom to conduct a business covers the exercise of an economic or commercial activity, freedom of contract and free competition. All these elements must be taken into consideration in the interpretation of the Charter.34 C.  Specific Rights The formulation of Article 16 appears to have no subjective restrictions: the right applies to natural but also legal persons – for instance, companies – as also indicated by CJEU case law.35 i.  Specific Relationship to Article 17 CFREU The powers of any economic actor are potentially enhanced by the right of property, which is a legal tool applying to all dynamic and functional aspects of its business. Article 17(1) in fact describes the content of the right of property as being ‘to own, use, dispose of and bequeath his or her lawfully acquired possessions’, but any regulation by law of its use is possible only ‘in so far as is necessary for the general interest’. The same article guarantees every natural or legal person ‘the peaceful enjoyment of his possessions’.36 It should be underlined that, when applied to Article 16, the principle of the rights of property and freedom of contract seem to diverge from the approach of the ECtHR and the interpretation that these judges have reserved to Article 1 Protocol 1, which applies only to existing possession and does not ‘guarantee the right to acquire possession’.37 Article 17 offers a truly comprehensive protection of the right of any kind of property, including intellectual property,38 whose inviolability is not absolute

34 CJEU, 17 October 2013, C-101/12, Schaible, ECLI:EU:C:2013:661, para 25. 35 FRA (n 15) 1. 36 Explanations on Art 17. 37 Everson and Correia Gonçalves (n 5) 442. 38 CJEU (GC), 12 September 2006, C-479/04, Laserdisken, ECLI:EU:C:2006:549, para 69; see also ch 18 on Art 17(2) in this publication.

360  Bruno Veneziani and must for that reason be strongly protected and consequently needs to be balanced against the protection of other fundamental rights.39 The ideological trend of Luxembourg case law has slowly shifted from the protection of ­structural elements of the conduct of business to its functional features ie’ to freely use … the economic, technical and financial resources available to it’;40 in the term ‘resources’ it includes ‘every measure impacting’ on the organisation of its activity ‘which require[s] difficult and complex solutions’.41 The broader the nature of the freedom to conduct a business the more delicate the judicial policy of ‘fairness’ with regard to balancing fundamental rights and interests. If Article 17 is involved in the concrete experience, the constraints of a public measure delimiting Article 16 can be considered compatible only if they do not imply –– deprivation of the possibility for the rights holder to fully access a fundamental right (of information in this case); –– obstructing (seriously discouraging) the ‘use’ of the same fundamental right.42 The strategy of balancing implies a delicate judicial function in resolving a conflict between non-material values: it requires the use of proportionality between the right of property, managing a business and the right to information. The CJEU is asked to play the role of social mediator between business, commercial activity and its unavoidable social impact; AG Cruz Villalon43 says: ‘The ECHR has stated that the right to internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information.’44 A proportionate reduction of economic profit can be tolerated if the interpreter emphasises the values and principles of human dignity: in the name of the obligation to provide care to human beings (eg a flight passenger) it is understandable that the holder of a business might be deprived ‘of part of the fruits of its labour and its investment’.45 Strong support for the decision would have been obtained by referring to the case law of the ECtHR that Article 17 can be assimilated to control of the use of property within the meaning of Article 1(2) of Additional Protocol No 1 to the ECHR,46 so that a measure freezing capital and economic resources is ‘not 39 CJEU, 24 November 2011, C-70/10, Scarlet Extended, ECLI:EU:C:2011:771, paras 43 and 44; CJEU, 29 January 2008, C-275/06, Promusicae, ECLI:EU:C:2008:54, paras 62 to 68. 40 CJEU, 27 March 2014, C-314/12, UPC Telekabel Wien, ECLI:EU:C:2014:192, para 48; 30 June 2016, C-134/15, Lidl, para 27. 41 CJEU Telekabel, ibid, para 50. 42 ibid, para 63. 43 ibid, para 108. 44 CJEU, AG Opinion, 26 November 2013, C-314/12, UPC Telekabel Wien, para 108. 45 CJEU, 31 January 2013, C-12/11, McDonagh, ECLI:EU:C:2013:43, para 59. 46 CJEU, AG Opinion, C-283/11, 12 June 2012, Sky Österreich, para 35; ECtHR, 23 September 1982, Nos 7151/75; 7152/75, Sporrong and Lönroth v Sweden, Series A No 52, para 65.

Article 16  361 proportionate in any case if it jeopardises …. the business activity as such’.47 The CJEU declared that it follows from an approach ‘based on the ­progressive impairment of rights according to the effectiveness of the measures, that the proportionality of those measures is established’.48 Second, the CJEU has accepted the direct application of fundamental economic freedoms to certain types of collective rule applied to private individuals49 which can, under certain conditions, be measured against an obligation on the Member States to protect the guarantees of the fundamental freedoms and so, indirectly, against those fundamental freedoms.50 The consequence is that this kind of direct enlargement of the scope of fundamental freedoms entails the acceptance by the CJEU of the direct application of the fundamental rights also to collective action. The Court rules in same cases that Articles 45, 49 and 56 TFEU apply not only to acts of official bodies, but also acts of private bodies governing individual and collective labour ­relations.51 This tendency implies a horizontal effect52 of the fundamental economic freedoms and has been increased and enlarged to include measures taken by professional organisations not compatible with historical fundamental freedoms, where under national rules those organisations have been granted public power.53 Measures taken by legal persons established under private law and controlled directly or indirectly by the Member States are also deemed to be public measures attributable to that Member State.54 ii.  Freedom of Contract A business owner can assert his power to conduct his affairs in the management of employment relations at collective level. According to the CJEU freedom of contract is a fundamental cornerstone not only of an enterprise’s external affairs but also of its internal management. So a dynamic clause referring to collective agreements negotiated and agreed after the date of transfer of undertaking concerned that are intended to regulate changes in working conditions in the public sector is liable to limit considerably the room

47 CJEU AG Opinion, 11 July 2013, C-348/12 P, Council v Manufacturing Support & Procurement Kala Naft, ECLI:EU:C:2013:776, para 162. 48 CJEU, 28 November 2013, C-348/12 P, Council v Manufacturing Support & Procurement Kala Naft, ECLI:EU:C:2013:776, para 126. 49 CJEU, 11 December 2007, C-438/05, International Transport Worker’s Federation and Finnish Seamen’s Union (Viking) ECLI:EU:C:2007:772. 50 CJEU, AG Opinion, 28 March 2012, C-171/11, FRA.BO, ECLI:EU:C:2012:453, para 31. 51 ibid, para 29. 52 Quasi-horizontal effect according to Everson and Correira Gonçalves (n 5) 449. 53 CJEU, 18 May 1989, C-266/87 and 267/87, The Queen v Association Pharmaceutical Importers and others, ECLI:EU:C:1989:205, para 13. 54 CJEU, 5 November 2002, C-325/00, Commission of the European Communities v Federal Republic of Germany, ECLI:EU:C:2002:633, paras 14 ff.

362  Bruno Veneziani for manoeuvre necessary for a private transferee to make such adjustments and changes.55

The rationale of the decision is that in the case of a transfer of a business the transferee is deprived of its fundamental right to be a protagonist in the bargaining process. They are unable to participate in a collective bargaining procedure and consequently unable to enjoy the full extent of the right to conduct a business, whose ‘very essence’ is as follows: –– to assert its interests effectively; –– to negotiate changes in working conditions for its employees; –– to plan its future economic activities.56 Taken in the general context of Directive 2001/23/EC the CJEU decision seems to ignore the fact that Article 3(3) does not preclude Member States from allowing dynamic clauses referring to existing and future collective agreements, freely agreed between the parties to a contract of employment, to be transferred as a result of the transfer of an undertaking. The reason for this realistic acknowledgment of the dynamic cycle of industrial relations is present in the directive and it is also a suitable approach to the economic rationale of the operations of undertakings in the market where the enterprise runs all kinds of risks. The rule of Article 3 Directive 2001/23/EC falls within the definition of permissible restrictions on Charter rights and freedom envisaged by Article 52(1) CFREU. The freedom to conduct a business ‘operates in the sphere of tangible and intangible assets … protects economic initiative and ability to participate in a market rather than the actual profit seen in financial terms that is earned in that market’.57 Prassl notes that is not clear that freedom of contracts anywhere are a fundamental principle of EU law and the notion does not form part of the EU legal system because ‘it has no textual basis in the Treaties’.58 The infringement of the rule in a less strict interpretation of the article can be less dangerous if, as suggested by AG Cruz Villalon, the requirement that the transferee accept the conditions agreed by collective agreements ‘is in fact not unconditional and irreversible … in nature’. But the AG says also that the position of the employer is counterbalanced by some protective prerogatives envisaged by the Directive: possibility of joint and several transferor and transferee liability to the potential for the national legislator to limit the applicability of certain provisions to one year post-transfer.59 55 CJEU, 18 July 2013, C-426/11, Alemo-Herron (5) para 28. 56 ibid, paras 33 and 35. 57 CJEU, AG Opinion, Alemo-Herron (5) paras 51 and 21–22. R Babayev, ‘Private Autonomy at Union Level: on Article 16 CFREU and Free Movement Rights’ (2016) CMLR 979. 58 J Prassl, ‘Freedom of Contract as a General Principle of EU law? Transfer of Undertaking and Protection of Employer Rights in EU Labour Law’ (2013) IJL 434. 59 CJEU, AG Opinion, 19 February 2013, C-426/11, Alemo-Herron (5), para 58. The ­operation of the Acquired Rights Directive 2001/23/EC does not mean that a transfer freezes working

Article 16  363 D. Limitations Ever since the Nold and Hauer judgments,60 two points seem to have driven all subsequent decisions taken by the Court: –– on one hand, property rights are deeply bound up with any sort of business and trade and activity; –– on the other hand, it is inherent in its nature as a fundamental right that the freedom to pursue a trade or profession be subject to limits.61 At the beginning of the 1990s the CJEU echoed this reasoning, stating that the right to property and the freedom to pursue a trade or business are part of the general principles of Union law, but they are not absolute and must be viewed in relation ‘to their social function … and their exercise may be restricted in the context of common organization of markets and do not constitute a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed’.62 The CJEU has accepted the opinion of the AG and decided that ‘the freedom to conduct a business may be subject to a broad range of interventions on the part of the public authorities, which may limit the exercise of economic activity in the public interest’.63 Consequently, and more clearly, all restrictions imposed on the exercise of Article 16 must correspond to objective general interests.64 Public health is such a crucial concern for the EU that it is subject to the specific protection of ­Article 35 and at the same time it must be remembered that a ‘high level of …. protection of human health’ is one of the objectives of general interest envisaged in the horizontal rule of Article 9 TFEU. The protean nature of Article 16 requires that the CJEU balance its main content with all fundamental rights enshrined in the Charter. In this respect, EU judges have adopted a functionalist approach by deciding to apply the necessary limits according to the ‘specific circumstances of the case’, so that the reference to European Union law must be understood as meaning that Article 16 refers to Article 49 TFEU and to the limits related specifically to the latter.65 In this perspective the limits must be based on objective, non-discriminatory and adequate reasons.66 conditions for all eternity, see CJEU, 10 February 1988, C-324/86, Tellerup (‘Daddy Dance Hall’) ECLI:EU:C:1988:72. 60 See CJEU, 13 December 1979, C-44/79 Hauer v Land Rheinland-Pfalz ECR 3727 (n 16) and CJEU, 14 May 1974, C-4/73 Nold v Commission ECR 491 (n 4). 61 CJEU, Hauer (n 16) para 16. 62 CJEU, 5 October 1994, C-280/93 Germany v Council ECRI-04973 (n 17) para 78; CJEU, 11 July 1989, C-265/87, Schräder HS Kraftfutter, ECLI:EU:C:1989:303, para 15 and 13 July 1989, C-5/88, Wachauf, ECLI:EU:C:1989:321, para 18. 63 CJEU, AG Opinion, Lidl (n 7) para 23. 64 CJEU, Deutsches Weintor (n 23) para 54. 65 CJEU, 13 February 2014, C-367/12, Sokoll-Seebacher (n 9) para 22. 66 ibid, para 27.

364  Bruno Veneziani E. Enforcement The sober wording of Article 16 lacks any reference to specific remedies applicable in the case of infringements of the freedom envisaged. The solution must be found within the general framework of the Charter and Article 16 must be read in light of a systematic interpretation of general principles provided for by Article 47 CFREU and Article 52 TFEU. However, Article 16 is a freedom and a principle not fully protected as such but only ‘recognised’. Consequently, it benefits only from a lower degree of legal and judicial protection compared with the normal and judicial guarantees given to ‘rights’. In many cases justification envisaged by national measures for interference with the content of Article 16 that does not satisfy the requirements of the principle of proportionality has been considered invalid by the CJEU. The EU directives on labour law, which potentially limit the freedom to conduct a business, provide for generic obligations in Member States. These states ‘shall bring into force laws, regulations and administrative provisions to comply with the directives’67 or requirements concerning more procedural measures, such as ‘judicial process after possible recourse to other competent authorities’.68 In two cases in which the freedom to conduct economic activity has conflicted with labour law, the judicial tool deployed was Article 267 TFEU and, in a preliminary ruling, enforcement of Article 16 has been carried out via interpretation. In both cases the Court admitted that the freedom to conduct a business is very much open to be used as a counterweight to other fundamental rights, such as the right to the protection of privacy, health and intellectual property. In labour law cases, such as Alemo-Herron,69 the freedom of economic activity has been enforced by the CJEU, restricting the rights of workers dismissed collectively through the principle of freedom of contract. In the AGET case70 the judges considered reasons of public interest – such as protection of employment during an economic crisis – not sufficient to justify a restriction of the freedom to conduct a business. The regard given by the CJEU to the economic fundamental rights and freedoms of the EC/EU reveals the strong ideological baggage affecting its decisions. The interpretations of the CJEU are strongly affected by a conscious intention to protect the position of business in a competitive market. It could be argued that some social forces could invoke fundamental values to justify the building of a countervailing power to economic considerations. Both ­Articles 28 (on collective rights) and 31 (on fair and just working conditions) reflect such values. These articles confer specific rights status on collective autonomy,

67 Art 10 Directive 89/654/EEC of 30 November 1989 concerning the minimum safety and health for the workplace. 68 Directive on transfer of undertakings and also Directive on collective redundancies, Art 9. 69 CJEU, Alemo-Herron (n 5). 70 CJEU, AGET Iraklis (n 10).

Article 16  365 as opposed to principle or freedom status, ‘in its entirety’.71 The argument supporting this theory is the fact that collective agreements contain all the rules governing employment relationships. There are no reasons to deeply infringe the ‘essential content’ of Article 31 if, in the case of a transfer, the workers transferred risk the imposition of worse employment conditions than those deriving from the collective agreement. In other words, the value of solidarity to which Title IV (Solidarity) is dedicated would be completely deprived of meaning in favour of an ‘absolute’ principle of freedom of contract intended as ‘unconditional’ protection of employers from any economic consequences deriving from the exercise of that freedom. In Achbita, the Court referred to the freedom to conduct a business as a legal foundation justifying indirect discrimination based on religion.72 This case shows that Article 16 has the potential to undermine a protection offered by a Directive that falls outside the scope of the Social Policy Title and has in fact been adopted on the basis of Part Two TFEU (Citizenship and non-discrimination). By this intrusion on the freedom to conduct a business, discretion concerning justification of indirect discrimination inevitably becomes very subjective and even one specific to employers, whereas a more objective approach prevails in the assessment of the justification of direct discrimination. III. CONCLUSIONS

Today the legal context has changed profoundly. The exercise of the fundamental freedoms at the basis of the EU’s ‘economic constitution’73 is included in a general framework. The social dimension of the Union has enlarged the rationale, scope, aims and actors of the latter. The EU’s catalogue of social aims is large and the ‘golden formula’ of ‘a highly competitive social market economy’ (Article 3(3)(1) TEU) aims at full employment and social progress and promoting social protection and – as the CJEU reaffirmed in 2016 – ‘the promotion of employment, improved living and working ­conditions’.74 In the same vein, Article 147(1) TFEU is aimed at maintaining a high level of employment and 147(2) specifies that such an objective is to be taken into consideration in the formulation and implementation of EU policies and activities. The social policy of Union must be ‘linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion and a high level of education, training and protection of human health’ (Article 9 TFEU).

71 CJEU,

AG Opinion, 8 September 2011, C-282/10, Dominguez, ECLI:EU:C:2012:33, paras 75–79. 14 March 2017, C-157/15, G4S Secure Solutions (‘Achbita’). 73 See Deakin’s ch 4 in Part I of this publication. 74 CJEU, Viking (n 50) para 78; AGET Iraklis (n 10) para 77. 72 CJEU,

366  Bruno Veneziani It is the task of interpreters at all levels to rethink the approach to economic freedoms as a principle that must prevail over social freedoms and rights. The Court has considerably expanded the content of the freedom to conduct industrial and commercial business, so that Article 16 is potentially exposed to all rules dealing with the fundamental right which run transversally through the Charter and refer to workers as persons (Articles 20, 21, 23, 26) and members of a collectivity (Title IV). Any approach to a balancing effort must be inspired by the new’ strategy based on the values’. The main aim of this strategy must be to discover what values and how they have been embedded in the rules and what is the ‘very essence’ of a specific worker’s rights in the case. The result of the balancing test currently used by the CJEU is that, for instance, both fundamental social rights to collective action and to collective negotiation are easily completely deprived not only of their protective function but of their essential content and the value – of solidarity – that they embody. ‘Solidarity’ is the heading of Title IV of the Charter and in all national systems of industrial relations it represents the social and historical genetic code composing this value – participation, self-defence, self-organisation and collective negotiation – through which is mirrored the force and power of a group of workers as a collectivity. This judicial strategy is composed in accordance with these logical Cartesian axes: –– all historical economic freedoms are fundamental rights forming part of the general principles of EU law, whose observance the Court has the duty to ensure; –– all human and social rights are fundamental and their protection is a legitimate interest that in principle justifies the restriction of freedoms guaranteed by the Treaty75 because human and social rights must be protected and promoted (Article 51(1)); –– both categories of fundamental rights are equivalent and in case of conflict they must be balanced according the rule envisaged in Article 52 (1); –– expressions of collective autonomy (freedom of expression, assembly and association, right to strike, collective agreements, information and consultation) must not be sacrificed to the totem of competition law. The rights of establishment and to provide services are at the core of the Viking and Laval cases but the Court, although admitting that collective action is a ‘last resort to ensure the success of [trade union] … claims’,76 and envisaged as a right in itself by Article 28 Charter,77 does not mean that collective action’ is able to deter it from the exercise of the freedom of establishment’.78 In the same

75 CJEU,

12 June 2003; C-112/00, Schmidberger, ECLI:EU:C:2003:333, paras 73 and 74. Viking (n 50) para 36. 77 ibid, para 44. 78 ibid, para 55. 76 CJEU,

Article 16  367 terms, to require an undertaking to apply the minimum wage laid down in a collective agreement has as a consequence ‘to impede or render less attractive the provision of the service’79 and in some cases undertakings established in other Member States ‘would [be enabled to] compete unfairly’ in the market.80 The CJEU follows an asymmetric attitude in ensuring the effectiveness of the principle of freedom of establishment and services against any discriminatory measure that ‘completely removes them from the market and … denies them access to that market’.81 The Court integrates a certain vision of social justice in its decisions and in its conception of restrictions on free movement, but it sounds rather formalistic so that the ideological perspective remains anchored in existing judicial philosophy without adding any modern values to the debate. This is also the case when the public authorities are involved in the judicial discussion, having been invoked by a national instance to play a role in finding an equitable solution when the case deals with the protection of workers against collective dismissals and implies a decision on a national measure requiring public authorisation prior to an employer’s decision to implement collective redundancies.82 The CJEU has admitted that the margin of discretion which the Member States enjoy in matters of social policy cannot have the effect of ‘frustrating the implementation of fundamental principles of EU law or of provisions of that law’.83 This statement means that all judicial analysis must take into account the restrictions on the freedom of industrial commercial conduct imposed by the State to guarantee social and ecological needs. The EU is interested in the model of ‘social enterprise’, which is a large part of the social market economy84 and is deeply embedded in the wider perspective described by the Commission. The success of the Europe 2020 Strategy depends on an integrated and coherent approach between all relevant policy areas in particular social, employment and economic policies. Linking EU funds to Europe 2020 priorities and supporting innovation will enhance the effectiveness of labour rights.85

79 CJEU, 3 April 2008, C-346/06 Rüffert, ECLI:EU:C:2008:189, para 37; 18 December 2007, C-341/05, Laval un Partneri, ECLI:EU:C:2007:809, para 99. 80 Ibid, para 75. 81 C Barnard, The Substantive Law of the EU. The Four Freedoms (Oxford, Oxford University Press, 2013) 396. 82 CJEU, 21 December 2016, C-201/15, AGET Iraklis (n 10). 83 CJEU, 15 January 2014, C-176/12, Association de médiation sociale ECLI:EU:C:2014:2, para 27 (emphasis added). 84 COM(2011) 682, Commission Communication, 25 October 2011, and Regulation (EU) 346/2013 on European social entrepreneurship funds. The CJEU has recognised the environment and consumer protection as general interests. See A Usai, ‘The Freedom to Conduct a Business in the EU, Its Limitations and its Role in the EU Legal Order. A New Engine for Deeper and Stronger Economic, Social and Political Integration’ (2013) 14 German Law Journal 1873. 85 European Commission, The social dimension of the Europe 2020 Strategy. A report of the Social Protection Committee (2011), EU Commission, Brussels, 2011.

368

18 Article 17(2) – Right to Intellectual Property NIKLAS BRUUN

Article 17 Right to property … 2. Intellectual property shall be protected.

EXPLANATIONS Protection of intellectual property, one aspect of the right of property, is ­explicitly mentioned in paragraph 2 because of its growing importance in Community­ secondary legislation. Intellectual property covers not only literary and ­ artistic property, but also inter alia patent and trademark rights and associated rights. The guarantees laid down in paragraph 1 shall apply as appropriate to intellectual ­property.

I. INTRODUCTION

A.  Context and Main Content The formation of the ‘information society’ and the changes affecting work in a digitalised environment has brought to the fore the issue of protection of the results of work within the framework of intellectual property, as well as the division of rights between employer and employee. The background for ­Article 17(2) can also be found in the ongoing ‘constitutionalisation’ of intellectual property, in terms of which those who want to strengthen the intellectual property regime rely on and refer to fundamental rights. On the other hand, also those who want to restrict the influence of intellectual property refer to

370  Niklas Bruun human rights and often also to balancing rights (such as freedom of speech and the right to education).1 The background and context of Article 17(2) is evidently the property context in 17(1), which have also been adopted by the ECtHR in relation to ECHR Article 1 First Protocol. A prominent example of this approach was adopted in the Grand Chamber ruling in the case Anheuser Busch v Portugal.2 In this case Portugal had concluded a bilateral treaty with the Czech ­Republic, which reinstituted protection for the ‘Budweiser’ logo as an indication of geographic origin, thereby precluding Anheuser Busch’s application from resulting in a trademark. This reinstitution took place after the date of the filing of an application for the trademark ‘Budweiser’ in Portugal by Anheuser Busch. One chamber of the ECtHR ruled that, although trademarks were to be considered ‘property’ under ECHR Article 1 First Protocol, protection did not extend to mere applications. That finding was overruled by the ECtHR Grand Chamber, which stated that even applications were part of the applicant’s property in the sense that registration could not be denied for other reasons than those present at the time of the filing of the application. The reasoning in the Explanations for the inclusion of paragraph 17(2) in the Charter is not very convincing. The explanations refer to the mere existence of secondary legislation, which as such cannot be seen as an argument for fundamental rights protection. The reference to the growing importance of intellectual property is very general. Furthermore, it is stated that the guarantees under paragraph 1 shall apply ‘as appropriate’ to intellectual property. In light of the ECtHR case law the relationship between Article 17(1) and 17(2) is not clear. One can ask whether 17(2) is intended to clarify 17(1) or does it bring additional human rights protection to intellectual property rights beyond the ‘property’ aspect? B.  Relationship to Other Provisions of the Charter Historically, intellectual property rights have often been seen as a means of realising (other) fundamental rights. Traditional examples include the freedom of expression and information (Article 11), but also freedom of the arts and sciences (Article 13), the right to education (Article 14) and the protection of personal data (Article 8). Especially in the context of patents the right to integrity (Article 3) and to health care (Article 35) are important. The emphasis on so-called moral rights in intellectual property, especially in copyright, can also be linked to the obligation to respect and protect human dignity. There are frequent references to Article 17(2) in the case law of the CJEU. The Article has been referred to as a kind of guarantee ‘ensuring’ a ‘high 1 See Christophe Geiger, ‘Fundamental Rights, a Safeguard for the Coherence of Intellectual Property Law?’ (2004) 35(3) IIC 268–80. 2 See ECtHR, 11 January 2007, No 73049/01 Anheuser-Busch Inc v Portugal.

Article 17(2)  371 level of protection of’ or ‘full respect for’ intellectual property rights in the ­internal market.3 On the other hand the CJEU has stated that ‘there is nothing ­whatsoever in the wording of Article 17(2) of the Charter to suggest that the right to intellectual property is inviolable and must for that reason be absolutely protected’.4 Article 17(2) is often used as one factor within a complicated balancing process, in which other fundamental rights must also be taken into account: In the present case, it must be observed that an injunction such as that at issue in the main proceedings, taken on the basis of Article 8(3) of Directive 2001/29, makes it necessary to strike a balance, primarily, between (i) copyrights and related rights, which are intellectual property and are therefore protected under Article 17(2) of the Charter, (ii) the freedom to conduct a business, which economic agents such as internet service providers enjoy under Article 16 of the Charter, and (iii) the freedom of information of internet users, whose protection is ensured by Article 11 of the Charter.5

The weight and function of Article 17(2) is, however, not specified in this balancing process; the only thing we clearly know is that Article 17(2) is part of this process. C.  Relationship to Other Relevant Instruments i.  EU Instruments The competences of the EU in the field of intellectual property are set out in Article 118 TFEU. In the context of the establishment and functioning of the internal market, the EU shall, acting in accordance with the ordinary legislative procedure, establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised EU-wide authorisation, coordination and supervision arrangements. Whereas the ordinary legislative procedure with qualified majority vote applies in general, language arrangements for ­European intellectual property rights require unanimous decisions (Article 118(2) TFEU). The European Union has developed quite a number of Regulations and Directives within the field of intellectual property in order to harmonise national legislation.6 In some of those adopted in the 2000s a reference to the Charter is 3 CJEU, Case C-57/15; see also Case C-580/13. 4 CJEU, Case C- 314/12, UPC Telekabel Wien, para 60. 5 CJEU Case C-314/12 UPC Telekabel Wien, para 47. 6 Directives have been adopted on Computer programs (91/250/EEC, later readopted codified version 2009/24/EU), Rental and lending rights (92/100/EEC), Satellite and cable (93/83/EEC), Copyright duration (93/98/EEC), Databases (96/9/EC), Conditional access (98/84/EC), Copyright/ Information Society (2001/29/EC), Resale rights (2001/84/EC), Civil enforcement (2004/48/EC), Copyright term (2006/116/EC), Certain permitted uses of orphan works (2012/28/EU), The ­protection of

372  Niklas Bruun included in the preamble.7 In any event, the Explanations refer only in a very general way to ‘secondary legislation’. The question has to be posed whether EU law fulfils the standard requirements laid down by the ICESCR. This has to be evaluated by looking at secondary legislation and Court practice from the CJEU because Article 17(2) is almost empty of content.8 ii.  Council of Europe Instruments The obvious connection between the ECHR (Article 1, protocol 1) and ­Article 17(1) has already been mentioned here. The fact that intellectual property rights are protected under the ECHR as property has been confirmed in several cases.9 Article 17(2) can be seen as a further confirmation of this approach. iii.  UN Instruments The human right to benefit from the protection of the moral and material interests of the author or creator has been recognised in a number of international instruments, starting with the Universal Declaration of Human Rights (UDHR), in which it is stated that ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ (Article 27). The UN ICESCR has included language from the Universal Declaration. Article 15 recognises the right of everyone ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ (Article 15 (1) c). The interpretation of Article 15 (1) c has been clarified by a General Comment developed by the competent Treaty body CESCR.10 Three aspects of this Comment can be noted.

undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (EU) 2016/943, Certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (EU) 2017/1564. 7 See, eg Directive on the enforcement of intellectual property rights 2004/48 recital 32. It reads: ‘This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of that Charter.’ 8 See Christophe Geiger, ‘Intellectual Property Shall be Protected!? Article 17(2) of the Charter of Fundamental Rights of the European Union: a Mysterious Provision with an Unclear Scope’ (2009) (31(3) EIPR 113–17, who argues that European intellectual property would ‘have been better off without this badly drafted provision’. 9 See ECtHR, 29 January 2008, No 19247/03, Balan v Moldova and ECtHR, 12 July 2016, No 562/05, SIA AKKA/LAA v Latvia. 10 See General Comment No 17 (2005) by the UN Committee on Economic, Social and Cultural Rights E/C.12/GC/17, 12 January 2006.

Article 17(2)  373 First, it is considered that only the ‘author’ – namely the creator, whether man or woman, individual or group of individuals – of scientific, literary or artistic productions, such as, inter alia, writers and artists, can be the beneficiary of the protection of Article 15, paragraph 1 (c). This follows from the words ‘everyone’, ‘he’ and ‘author’, which indicate that the drafters of that article seemed to have believed authors of scientific, literary or artistic productions to be natural persons, without at that time realising that they could also be groups of individuals. Under the existing international treaty protection regimes, legal entities are included among the holders of intellectual property rights. However, their entitlements, because of their different nature, are not protected at the level of human rights.11 Second, the protection of the ‘moral interests’ of authors was among the main concerns of the drafters of the ICESCR. Their intention was to proclaim the intrinsically personal character of every creation of the human mind and the ensuing durable link between creators and their creations. In line with the drafting history of Article 27 (2) of the UDHR and Article 15 (1) c it is held that ‘moral interests’ in Article 15 (1) c include the right of authors to be recognised as the creators of their scientific, literary and artistic productions and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, such productions, which would be prejudicial to their honour and reputation. In its General Comment the Committee further stresses the importance of recognising the value of scientific, literary and artistic productions as expressions of the personality of their creator, and notes that protection of moral interests can be found, although to a varying extent, in most States, regardless of the legal system in force. It is clear from the language of the ICESCR that it covers copyright of authors. It is more ambiguous whether the entitlement to be recognised as the inventor or creator of an invention in an application for a patent is also covered. That would be consistent, but the language in the ICESCR does not explicitly mention inventors. Third, the protection of ‘material interests’ of authors in Article 15 (1) c ICESCR reflects the close linkage of this provision with the right to property, as recognised in Article 17 of the UDHR and in regional human rights instruments, as well as with the right of any worker to fair remuneration (Article 7 (a) ICESCR). The material interests of authors are not directly linked to the personality of the creator, but contribute to the enjoyment of the right to an adequate standard of living (Article 11 (1) UDHR). Chapman has summarised the State duties under Article 15 (1) c ICESCR as an obligation to implement copyright as a human right and to put in place an appropriate regime of protection for the interests of authors and creators. 11 Committee on Economic, Social and Cultural Rights, twenty-seventh session (2001), ‘Human Rights and Intellectual Property’, Statement by the Committee on Economic, Social and Cultural Rights, 29 November 2001, E/C.12/2001/15, at para 6.

374  Niklas Bruun There is a broad discretion for States parties to design the legal form of that protection, although all States must fulfil certain guidelines.12 iv.  Other International Instruments The field of intellectual property protection was a forerunner in international cooperation even before the twentieth century, which saw the creation of the ILO, the League of Nations and international protection of human rights. The Berne Convention13 Article 6bis contains some important provisions concerning the moral rights of the author. Paragraph 1 states that Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Furthermore, these moral rights shall, after the death of the author, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. The Paris Convention14 (1883) is the other very early international convention in the area of intellectual property, covering the areas of so-called industrial property (especially patents, trademarks, trade names, design rights and unfair competition). According to Article 4ter of this Convention, ‘the inventor shall have the right to be mentioned as such in the patent’. This right can be described as a ‘moral right’ of the inventor. II. CONTENT

A.  General Observations In most Member States of the European Union there is a strong tradition emanating from the Berne and Paris Conventions to protect authors’ and 12 See Audrey R Chapman, ‘Approaching Intellectual Property as a Human Right’ (2001) XXXV(3) Copyright Bulletin 4–36, 7. Among these guidelines are the following: copyright must be consistent with the understanding of human dignity in the various human rights instruments and the norms defined therein, copyright related to science must promote scientific progress and access to benefits and copyright regimes must respect the freedom indispensable for scientific research and creative activity. 13 The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, completed at Paris on 4 May 1896, revised at Berlin on 13 November 1908, completed at Berne on 20 March 1914, revised at Rome on 2 June 1928, at Brussels on 26 June 1948, at Stockholm on 14 July 1967, and at Paris on 24 July 1971 and amended on 28 September 1979. 14 Paris Convention for the Protection of Industrial Property of 20 March 1883, as revised at ­Brussels on 14 December 1900, at Washington on 2 June 1911, at The Hague on 6 November 1925, at London on 2 June 1934, at Lisbon on 31 October 1958, and at Stockholm on 14 July 1967, and as amended on 28 September 1979.

Article 17(2)  375 i­nventors’ rights to their creations, works or inventions. Especially within the field of copyright there are, however, two very different historical approaches. In the United Kingdom and Ireland the Anglo-Saxon tradition dominates. Here a utilitarian approach, in which ‘ownership’ to copyright is seen as a property right, is generally accepted, while the French tradition regards the rights of the author – droit d’auteur – as merely a personality right, the work representing the materialisation of the author’s personality.15 The pronounced market rationale of the EU has led to a ‘propertisation’ of EU intellectual property law, in which market goals related to competitiveness and the need to protect investments have been at the forefront, while access to cultural and educational services has been left to the national regulators. The same applies to the protection of moral rights.16 B.  Field of Application In light of Article 118 TFEU the European Union has a broad competence to regulate intellectual property rights. It seems unlikely that moral rights, which form an integrated part of international copyright law, could be regarded as being outside this competence.17 Especially in light of the fact that the CJEU has adopted an autonomous EU concept of author and authorship it is not possible to exclude moral rights, especially when taking into account that all Member States are bound to the Berne Convention (see above), which according to Article 53 would mean that it forms a guarantee of a minimum level protection. The situation was different prior to the Lisbon Treaty and this explains why moral rights were left outside the scope of earlier secondary legislation. This was the approach when Directive 2009/24/EC (its earlier version) on the protection of computer programmes was adopted in the early 1990s.18 Because the EU has not exercised the possible competence of regulating moral rights there is no situation in which the Member States would implement EU law regarding moral rights. When the EU exercises its competence to introduce EU-wide regulation it has – arguably as a consequence of Article 17(2) in combination with the requirements under Article 53 and the Berne Convention – to respect also moral rights and the fact that intellectual property is labelled ‘property’ under the CFREU does not change this. The scope of the concept of ‘intellectual property’ is not clear. The Explanations on Article 17(2) mention the core forms of intellectual property: copyright,

15 See Caterina Sganga, ‘EU Copyright Law Between Property and Fundamental Rights: A Proposal to Connect the Dots’ in Roberto Caso and Fredrica Giovanella (eds), Balancing Copyright Law in the Digital Age. Comparative Perspectives (Berlin Heidelberg, Springer-Verlag, 2015) 4. 16 See ibid. 17 The situation is different with the TRIPS agreement (WTO). See Art 9 which explicitly excludes Art 6bis from the obligation to comply with the Berne Convention Art 1 through 21. 18 Directive 1991/250/EEC.

376  Niklas Bruun patents and trademarks and associated rights. This means that at least design rights19 and probably trade names are included. On the other hand it is unlikely that the protection of trade secrets – which is not regarded as an intellectual property right in many EU Member States – would be covered.20 C.  Specific Rights i. Background The regulatory strategy of the EU regarding copyright has been to try to remain neutral with regard to different national solutions concerning who can be the original ‘author’ of a protected work. We can best illustrate this with a few examples: Authorship of computer programs 1. The author of a computer program shall be the natural person or group of natural persons who has created the program or, where the legislation of the MS permits, the legal person designated as the rightholder by that legislation. Where collective works are recognised by the legislation of a MS, the person considered by the legislation of the MS to have created the work shall be deemed to be its author. 2. In respect of a computer program created by a group of natural persons jointly, the exclusive rights shall be owned jointly. 3. Where a computer program is created by a worker in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract.21

The same language was adopted in the Database Directive regarding database authorship with the exception that point 3 was not mandatory. It states: Whereas the arrangements applicable to databases created by workers are left to the discretion of the Member States; whereas, therefore nothing in this Directive prevents Member States from stipulating in their legislation that where a database is created by an worker in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the database so created, unless otherwise provided by contract.22

19 Paul Torremans, ‘Article 17(2)’ in Steve Peers, Tamara Hervey, Jeff Kennerand Angela Ward (eds), The EU Charter of Fundamental Rights, A Commentary (Oxford, Hart Publishing, 2014) 503. 20 See Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure and specifically Preamble 34 where no specific reference to Art 17(2) is made. 21 Art 2, Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs. 22 Directive 96/6/EC, Preamble Recital 29.

Article 17(2)  377 In the Directive on rental rights and lending rights and on certain rights related to copyright in the field of intellectual property it is stated: ‘For the purposes of this Directive, the principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. Member States may provide for others to be considered as its co-authors.’23 It seems very clear that the starting point for EU intellectual property law is that the real ‘author’, ‘inventor’ or ‘creator’ must be regarded as a natural person and that all possible limitations or exceptions to this approach must be carefully justified. ii.  Rights to Protection of Moral Interests We have argued that Article 17(2) must be interpreted to cover moral rights in spite of the fact that it is included in a paragraph on property rights. The reason for this is not only that all Member States are bound by the Berne Convention and the ICESCR, but also that there exists an intrinsic link between moral and economic rights. Especially in the context of the internal market a different understanding of moral rights in separate Member States might actually have an adverse impact on the internal market. An interpretation adopted by the ­Swedish Supreme Court that a transformation of a certain film, which originally was produced in black and white, into a colour version (‘colorisation’), without the permission of the film director, was a breach of his moral rights, will clearly have implications for the distribution of such films on the internal market. The Berne level must apply and it is reasonable to expect CFREU 17(2) to have an impact in this respect when the EU is regulating within this field. Under EU law it is therefore possible to conclude that workers as inventors or authors of intellectual property protected subject matter have the right to be recognised as inventors and authors, but there are few guidelines on the content and extension of this right. iii.  Right to Protection of Material Interests a. The Luksan Case In the practice of the CJEU the question of the right to remuneration for the author has been dealt with in a preliminary ruling requested from an Austrian court.24 Mr Luksan was the scriptwriter and principal director of a documentary film. The defendant in the main proceedings, Mr van der Let, produced cinematographic and other audiovisual works commercially. The parties had concluded

23 Directive 24 CJEU,

93/83/EEC. Case C-277/10, Luksan.

378  Niklas Bruun a ‘directing and authorship agreement’ (audiovisual production contract) stating that Mr Luksan was the scriptwriter and principal director of the film in question and that Mr van der Let would produce and exploit it. Under that contract, Mr Luksan assigned to Mr van der Let all copyright and/or related rights held by him in the film. However, that assignment expressly excluded certain methods of exploitation, namely making it available to the public on digital networks and broadcast by closed circuit television and by pay TV. Mr van der Let, made the film in question available on the internet and assigned the rights for this purpose to Movieeurope.com. The film could thus be downloaded from that website by means of video on demand. The producer also made the trailer for the film available on the internet, through YouTube, and assigned the pay TV rights to Scandinavia TV. In these circumstances, the director, Mr Luksan, brought proceedings against the producer, Mr van der Let, before the national court. He contended that, given the methods of exploitation reserved for him by the contract (the right to broadcast to closed circles of users by video on demand and by pay TV), the producer’s exploitation of the film at issue in the main proceedings breached that contract and his copyright. Mr van der Let submitted in response to those arguments that, on the basis of the ‘statutory assignment’ provided by Austrian legislation (UrhG paragraph 38(1)), all exclusive exploitation rights in the film in question are vested in him as the producer of the film and that agreements diverging from that rule or a reservation having the same effect are void. The CJEU noted that the national court in essence asked whether the right to equitable remuneration, such as the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the ‘private copying’ exception, is vested by operation of law, directly and originally, in the principal director, in his capacity as author or co-author of the cinematographic work. The CJEU pointed out that, in the Member States that have decided to establish the private copying exception, the rightholders concerned must, in return, receive payment of fair compensation. It is clear from such wording that the EU legislature did not wish to allow the persons concerned to be able to waive payment of that compensation to them. Furthermore, because Article 5(2)(b) establishes an exception to the author’s exclusive reproduction right in his work, that provision must be the subject of a restrictive interpretation. The provision at issue authorised an exception solely to the reproduction right and could not be extended to remuneration rights. The CJEU25 concluded that European Union law precludes a provision of domestic law that allows the principal director of a cinematographic work to waive his right to fair compensation. European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of



25 CJEU,

Case C-277/10, Luksan, paras 17–109.

Article 17(2)  379 transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vested in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from. The Court also referred to CFREU 17(2) in the judgment (paragraph 68). The main emphasis, however, is on CFREU 17(1) and fair compensation is regarded as a form of property. Article 17(2) and its wording is quoted, but no conclusions are made based on this article. b.  Worker Intellectual Property The conclusion that can be drawn from the landmark Luksan case is that there is a prohibition under EU law on introducing a direct legislative regime by which the author loses his or her rights to authorship and to the remuneration rights connected to authorship. The Director had in the Luksan case a right to his/her original position as author under the copyright regime. The interesting question is whether this principle can be applied more generally to EU law and to the position of workers as authors. The judgment seems to be clearly applicable to the worker–employer relationship. If the worker is in an employment relationship, the original intellectual property rights are with the worker. The concept of an author is an autonomous EU concept.26 Secondary law can, however, stipulate certain exceptions regarding the assignment: in the Database Directive the Member State may decide on different options; the same is true for Directive 2006/116/EC on the terms of protection of copyright and certain related rights according to which the principal director of a cinematographic or audiovisual work shall be considered as its author or one of its authors. Member States shall be free to designate other co-authors. In light of what has been said above it is possible to conclude that workers as inventors or authors have a right to a fair remuneration for intellectual property rights that are assigned to the employer. These entitlements can be based on Article 17(1) and 17(2) read in conjunction with Article 1, Article 13 and Article 31. Also the balancing practice exercised by the CJEU supports such a conclusion. On the other hand, Article 17(2), which extends the guarantees under Article 17(1) to apply to intellectual property, is of a general character and so far neither the level nor the form of compensation for worker intellectual property has been harmonised within the EU intellectual property regime. Therefore legislation or practice, common in several Member States, under the aegis of which intellectual property remuneration is regarded as part of the ordinary wages of the worker, can hardly be contested under the CFREU.



26 See

the CJEU cases C-5/08, Infopaq and C-403/08, FAPL.

380  Niklas Bruun D. Limitations Article 52(3) is of importance in the context of Article 17(1), which directly corresponds to the corresponding rights under ECHR. The added value of the principle codified in Article 17(2) is that it functions as a reminder that intellectual property should be regarded as property, but furthermore that the human rights protection of intellectual property rights goes beyond traditional property aspects. E. Enforcement EU secondary legislation has focussed on enforcement of intellectual property rights. The Enforcement Directive 2004/48/EC was adopted in 2004. The case law of the CJEU has in several cases dealt with Article 47 CFREU and the question of limitations of injunctions under EU law.27 In the context of worker intellectual property, the question that might arise in practice concerns access to justice. The problem is that authorship might be difficult to claim for an worker, but because authorship is a concept that is harmonised at EU level there should be an effective remedy and a right to a fair trial for a worker claiming that he or she has been deprived of authorship. III. CONCLUSIONS

The expanding legal EU regime regarding intellectual property rights has so far largely neglected the aspect of worker intellectual property. Regulation of worker intellectual property has been seen as an issue left for national law to regulate. Although this can still be seen as the main rule, the CFREU, together with the expanding secondary legislation, clearly creates some ‘spillover’ effects into EU law that cannot be neglected and that provide some protection for workers who create intellectual property protected subject matter when performing work within an employment relationship. Within the context of ongoing digitalisation this issue will certainly increasingly come on the agenda in the future.



27 See

Case C-275/06, Promusicae and Case C-70/10, Scarlet.

Title III – Equality

382

19 Articles 20 and 21 – Equality and Non-discrimination NIKLAS BRUUN

Article 20 Equality before the law Everyone is equal before the law. Article 21 – Non-discrimination 1.  Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.

EXPLANATIONS ON ARTICLE 20 – EQUALITY

This Article corresponds to a general principle of law, which is included in all European Constitutions and has also been recognised by the Court of Justice as a basic principle of Community law (judgment of 13 November 1984, Case 283/83 Racke [1984] ECR 3791, judgment of 17 April 1997, Case C-15/95 EARL [1997] ECR I–1961, and judgment of 13 April 2000, Case C-292/97 Karlsson [2000] ECR 2737). EXPLANATIONS ON ARTICLE 21 – NON-DISCRIMINATION

Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in ­compliance with it.

384  Niklas Bruun There is no contradiction or incompatibility between paragraph 1 and A ­ rticle 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States’ laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover actions of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union’s powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban on discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article. Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.

I. INTRODUCTION

A.  Context and Main Content Articles 20 and 21 are of crucial importance for EU law generally and the Charter specifically. The principles of equality and non-discrimination are not only general principles of EU law, but also cornerstones of the EU treaties. Article 2 TEU prescribes that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between men and women prevail. Article 4(2) TEU indicates that the principle of equality has relevance on several levels. The Union shall respect the equality of Member States before the Treaties, as well as their national identities. Equality is a cornerstone of the principle of justice and often a basic distinction is drawn between formal and substantive equality. The first refers to enforcement and requires equality before the law. The other refers to the content of law and is closely linked to the issue of discrimination because its starting point is that laws must not differentiate between citizens on arbitrary grounds.1

1 See Takis Tridimas, The General Principles of EC Law 2nd edn (Oxford, Oxford University Press, 2006) 61.

Articles 20 and 21  385 The EU equality requirement, together with the prohibition of discrimination in fact seems to contain four separate norms imposing negative and positive obligations on the Member States.2 These obligations are that States shall: (1) guarantee equality before the law; (2) guarantee the equal protection of the law; (3) prohibit any discrimination; and (4) guarantee to all persons equal and effective protection against discrimination, including positive action in order to achieve equality. Article 21 has a central position in EU law not only as a codification of explicit non-discrimination clauses in the Treaty, but also as confirming general principles of EU law. Article 21 consists of three different parts, assessed from a legal perspective. The first part is related to Article 19 TFEU and its list of grounds of discrimination and the secondary legislation that has been adopted based on that provision and to some extent regarding gender equality on Article 157(3) TFEU. The difference between Article 21(1) and Article 19 TFEU is that while Article 21(1) provides for a substantive prohibition of discrimination, Article 19 is solely an empowering provision. On the other hand Article 21(1) does not provide a legal basis for adoption of legislation and is applicable to Member States only when they implement EU law.3 The second part, regulated in Article 21(2), is related to discrimination based on nationality, which is regulated in Article 18 TFEU. The third part regulates grounds for discrimination for which no specific ­regulatory competences can be found in the treaties. Such discriminatory grounds include genetic features, language, political or other opinion, membership of national minority, property and birth. Furthermore, the list is open-ended. It can also cover grounds that are not explicitly mentioned, such as trade union activity or whistle-blowing. Although the non-discrimination regime as such cannot be extended to encompass these grounds in EU law, the Union when regulating, for example, language issues, has to respect the prohibition of discrimination. In the same manner Member States must, when implementing EU law, do it in a manner that does not amount to discrimination on any of these grounds. B.  Relationship to Other Provisions of the Charter The whole of Article 21 is not only closely linked to Article 20 on equality but also to Article 23 as far as sex discrimination is concerned. Article 21(1) is closely linked to Article 26 regarding integration of persons with disabilities. The EU recognises and respects the rights of persons with

2 See Olivier de Schutter, International Human Rights Law (Cambridge, Cambridge University Press, 2014) 647. 3 See further Tridimas (n 1) 66.

386  Niklas Bruun ­isabilities, especially to integration and participation in community life. d ­Articles 24 and 25 are linked to age discrimination. Article 18 mirrors Article 21(2) because it protects the right to asylum for non-nationals. Article 45 on freedom of movement and residence protects against discrimination based on nationality. C.  Relationship to Other Relevant Instruments There is an extensive international regulatory regime regarding non-­ discrimination, and relations between different instruments and EU law differ to a surprisingly high degree. i.  EU Instruments In primary EU law, Article 2 TEU lays down that The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Non-discrimination is a core value for the EU. Combatting discrimination, again, is a core objective for the EU (Article 3(3) TEU). In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women (Article 8 TFEU). In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 10 TFEU). There is a strong mandate for an active policy. There has also long been strong secondary legislation, especially regarding sex discrimination, but also on the grounds mentioned in Article 19 TFEU. Within the Treaties’ scope of application and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination (Article 18 TFEU). Such secondary legislation exists especially in relation to free movement of persons.4 According to Article 7 R ­ egulation No 492/2011 a 4 See Regulation No 492/2011 of 5 April 2011 on freedom of movement for workers within the Union. See also Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member State.

Articles 20 and 21  387 worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of their nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal and, should they become unemployed, reinstatement or re-employment. They shall also enjoy the same social and tax advantages as national workers and have equal access to training in vocational schools and retraining centres as national workers have. Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, remuneration and other conditions of work or dismissal shall be null and void insofar as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them on the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 19(1) TFEU). Important pieces of secondary legislation in the form of Directives have been adopted based on this Article.5 ii.  Council of Europe Instruments Article 14 ECHR prohibits discrimination. This Article has its limitations.6 Therefore an additional Protocol (No 12) was adopted in 2000, which does include an independent non-discrimination provision. The Revised European Social Charter contains a similar provision E.7 5 The so-called Gender (Recast) Directive (2006/54/EC) on equal opportunities and equal treatment of women and men in employment and occupation brings together some older directives. This directive requires the implementation of the prohibition of direct and indirect sex discrimination, harassment and sexual harassment in pay, employment and in occupational social security schemes. A prohibition of direct and indirect sex discrimination applies to statutory social security schemes (Directive 79/7/EEC) and to self-employment (Directive 2010/41/EU). The Racial Equality Directive (2000/43/EC) prohibits discrimination on the ground of racial or ethnic origin in a broad range of fields, including employment, social protection and social advantages, education and goods and services available to the public, including housing. The Employment Equality Directive (2000/78/EC) provides for protection from discrimination for a much broader range of groups than the Race Directive as it protects groups identified by religion or belief, sexual orientation, disability and age. 6 The article can be invoked only in conjunction with other human rights protected under the ECHR. See further Niklas Bruun, ‘Prohibition of Discrimination under Article 14 European Convention on Human Rights’ in Filip Dorssemont, Klaus Lörcher and Isabelle Schömann, The European Convention on Human Rights and the Employment Relation, (Oxford, Hart Publishing, 2013), 367–79. 7 See Csilla Kollonay-Lehoczky, ‘Article E: Non-Discrimination’ in Niklas Bruun, Klaus Lörcher, Isabelle Schömann and Stefan Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2016) 493–511.

388  Niklas Bruun Moreover, the European Convention on Nationality8 embodies principles and rules applying to all aspects of nationality. It is designed to make the acquisition of a new nationality or recovery of a former one easier, to ensure that nationality is lost only for good reason and cannot be withdrawn arbitrarily. The essential principles embodied in this Convention are prevention of statelessness, non-discrimination (in regulating questions of nationality, states must avoid all discrimination on grounds of sex, religion, race, colour, national or ethnic origin and so on) and respect for the rights of persons habitually resident in the territories concerned. Article 21 has also drawn inspiration from the 1997 Council of Europe Convention on Human Rights and Biomedicine, which prohibits discrimination based on genetic heritage. iii.  ILO Instruments In the Declaration of Philadelphia 1944 the ILO declared that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.’ In the ILO there are two important instruments that deal with discrimination in the context of employment or occupation. Both instruments have been ratified by all Member States of the European Union. ILO Convention No 111 concerning Discrimination in Respect of Employment and Occupation, adopted in 1958, defines discrimination as including any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. ILO Convention No 100 on Equal Remuneration was adopted in 1951. According to this Convention each Member State shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women for work of equal value. Furthermore, numerous ILO Conventions contain different types of nondiscrimination clauses. One example is the general anti-discrimination clause, which requires ‘the elimination of discrimination in respect of employment and occupation’.9 Another example is a prohibition of a specific form of discrimination, stating that ‘[w]orkers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment’.10

8 CETS

No 166 Strasbourg, 6 November 1997. ILO Convention No 189 on domestic work, Art 3(2)(d). 10 See ILO Convention No 98 on collective bargaining, Art 1(1). 9 See

Articles 20 and 21  389 iv.  UN Instruments Article 2 UDHR of 1948 states that ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Similar provisions are included in Article 2 ICCPR11 and in Articles 2–3 ICESCR.12 The later Conventions on discrimination based on race (CERD), sex (CEDAW) and disability (CRPD), as well as the Convention on migrant workers and their families (ICRMW), all include detailed provisions aimed at restricting all forms of discrimination and discriminatory practices. II. CONTENT

A.  General Observations The CJEU has consistently held that the principle of equality and non-­ discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.13 The principle of equality has a very large scope of application in EU law and is frequently used and developed in specific areas of EU law, such as public procurement. Sex discrimination and equal pay are strongly embedded in EU law. This has been confirmed by Article 23, the relevant treaty provisions referred to above, secondary legislation and long-standing legal practice recognising ‘direct effect’ of these provisions. The CJEU, however, has long been cautious about basing any legal effects on Article 21, but instead refers to this article as confirming or illustrating conclusions that can be derived from other EU instruments or earlier practice. To date there has been very little case law in which Article 21 as such was used as justification or main argument for an outcome in a case on a preliminary ruling. Instead Article 21 is commonly used as an additional argument for outcomes that are reached based on general principles of EU law or secondary EU legislation and case law.

11 In 1989 the Human Rights Committee adopted General Comment No 18 on Non-­Discrimination in Article 26, ICCPR. 12 In 2009 the Committee on Economic, Social and Cultural Rights adopted General Comment No 20 on Non-discrimination in economic, social and cultural rights (Art 2, para 2 ICESCR). 13 See Mark Bell, ‘Article 20 – Equality before the Law’ in Steve Peers, Tamara Hervey, Jedd Kenner and Angela Wards (eds), The EU Charter of Fundamental Rights – A Commentary (Oxford, Hart Publishing, 2014), 570 and CJEU, 3 May 2007, C-303/05, Advocaten voor de Wereld VZW, to which he refers.

390  Niklas Bruun Mark Bell noticed in 2014 that looking to the future ‘an unresolved matter is the impact of the Charter of Fundamental Rights and its relationship to the unwritten general principles of law’.14 He argues that the Court blends these instruments together, citing both as authority for applying the principle of equality in respect of age discrimination. The prohibition against age discrimination has been regarded as a general principle of EU law and therefore is applicable between private parties.15 Now, the principle is also ‘enshrined’ in Article 21.16 In EU law the prohibition against age discrimination is only regulated with regard to employment, however. Lately there have been clear indications that the CJEU is adopting a consistent approach to Article 21(1), which indeed would mean that all grounds mentioned in Article 19 TFEU on which secondary legislation has been adopted will provide the possibility to invoke these provisions against private employers at national level in the Member States. This approach was referred to in the AMS case, paragraph 47, in which the horizontal, direct effect of Article 21(1) was referred to explicitly in the context of age discrimination.17 In Egenberger, the CJEU explicitly stated that the prohibition of all discrimination on grounds of religion or belief is mandatory under EU law and that this ‘prohibition, which is laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals a right which they may rely on as such’.18 Furthermore the CJEU states: ‘As regards its mandatory effect, Article 21 of the Charter is no different, in principle from the various provisions of the founding Treaties prohibiting discrimination on various grounds, even where the discrimination derives from contracts between individuals’ (paragraph 77). Based on this recent CJEU practice it is not possible to dispute the direct effect of Article 21 (1) and (2). This conclusion is not surprising; it follows more or less from the CJEU’s historical approach to non-discrimination legislation. It is more surprising that it took the CJEU more than 10 years from the integration of the CFREU into primary EU law before finally clearly declaring this position. The caution shown by the CJEU probably has more to do with the fact that there are other provisions in the CFREU concerning which there are strong disagreements on whether the articles state rights or principles and what the legal effect of these articles are between private parties. Regarding Article 21(1) and (2) this issue is now seemingly resolved: the right to equal treatment and nondiscrimination is, from the point of view of the Charter, a right, not a principle,

14 M Bell, ‘Constitutionalisation and EU Employment Law’ in HW Micklitz (ed), Constitutionalization of European Private Law (Oxford, Oxford University Press, 2014). 15 See CJEU, 25 November 2005, C-144/04, Mangold and CJEU, 19 January 2010, C-555/07, Kücükdeveci. 16 See CJEU 19 April 2016, C-441/14 Dansk Industri DI v Ajo), para 22. 17 See CJEU, 15 January 2014, C-176/12, Association de mediation sociale, para 47. 18 CJEU, 17 April 2018, C-414/16, Egenberger, para 76. See also CJEU, 11 September 2018 C-68/17 IR v JQ, para 69.

Articles 20 and 21  391 and as long as the discriminatory grounds are regulated in EU law this article can be invoked directly in employment disputes between private employers and employees. Discrimination based on disability has a special status because the European Union has acceded to the CRPD Convention.19 Discrimination based on nationality also has its secondary legislation,20 but is closely related to the free movement of persons within the European Union. B.  Field of Application The field of application for CFREU Articles 20 and 21 is difficult to assess, for a number of reasons. The principles of equality and non-discrimination are regarded as general principles of EU law and as rights that result from the constitutional traditions common to the Member States. Furthermore, these are rights recognised by the Charter for which provisions are made in the Treaties. Article 20 must be taken into account in all law-making by the EU institutions. It is common that some categories of workers are treated differently from others by EU law. Such treatment must always be justified on objective and legitimate grounds. When, for example, different categories of employees are treated differently under the EU Working Time Directive,21 which gives the Member States the power to derogate – with due regard for the general principles of the protection of the safety and health of workers – from Articles 3 to 6 and 8 and 16, when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, the exception is justified by the specifics of the determination of working time. The introduction of the comprehensive EU Directive regarding seafarers22 and their working conditions was explicitly justified in the preamble by the ­principle of equal treatment: (4) The existence of, and/or possibility of introducing, exclusions may prevent seafarers from fully enjoying their rights to fair and just working conditions and to information and consultation, or limit the full enjoyment of those rights.­

19 Council Decision 2010/48/EC (26 November 2009) concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities. CJEU, 11 April 2013, C-335/11, HK Denmark and CJEU, 9 March 2017, C-406/15, Petya Milkova. 20 Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 21 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time. 22 Directive 2015/1794 of the European Parliament and of the Council of 6 October 2015 amending Directives 2008/94/EC, 2009/38/EC and 2002/14/EC of the European Parliament and of the Council, and Council Directives 98/59/EC and 2001/23/EC, as regards seafarers.

392  Niklas Bruun Insofar as the existence of, and/or possibility of introducing, exclusions is not justified on objective grounds and seafarers are not treated equally, provisions which allow such exclusions should be deleted. (5)  The present legal situation, existing in part as a result of the specific nature of the seafaring profession, gives rise to unequal treatment of the same category of workers by different Member States, according to whether or not they apply the exclusions and optional exclusions allowed by the legislation in force. A significant number of the Member States have made no, or only limited, use of those optional exclusions.

Article 20 applies to everyone. It is not restricted to EU law-making concerning EU citizens.23 Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State24 refers explicitly to the right to equal treatment for third country nationals: All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law.25

The scope of the non-discrimination secondary legislation in the EU covers basically three areas: employment, access to goods and services and the welfare system. The Directive on racial equality applies to all three areas, the Directive on gender equality applies to employment and access to goods and services, while the Employment Equality Directive applies only to employment. Article 21 will of course be applicable for Member States only when implementing EU law,26 but recently the case law has shown that this Article can have a clear impact on discrimination. There is, however, at least one example of a piece of legislation in EU law being declared invalid mainly based on Articles 21 and 23.27 In this

23 See Petra Herzfeld Olsson, ‘Chapter 8. Concluding Remarks’ in Petra Herzfeld Olsson (ed), National Effects of the Implementation of EU Directives on Labour Migration from Third Countries (Leiden, Wolters Kluwer International BV, 2016) 222. 24 Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. 25 Preamble, 20. 26 There are several cases in which the CJEU states that it does not have jurisdiction to answer questions regarding the interpretation of Arts 20 and 21 because said question addresses an issue under national competence. See CJEU, 10 July 2014, C-198/13, Hernandez et al; CJEU, 11 November 2014, C-333/13, Dano; and CJEU, 1 December 2016, C-395/15, Daouidi. 27 See CJEU, 1 March 2011, C- 236/09, Test Achats. Here it was argued that a Directive 2004/113 provision that enabled the Member States in question to maintain without temporal limitation

Articles 20 and 21  393 case, however, what was under discussion was the validity of a certain provision of Directive 2004/113. Its recital 4 referred explicitly to Articles 21 and 23, which according to the CJEU did justify assessing the validity of the Directive using these Articles as benchmarks. The personal scope of Article 21 is broad. It covers all persons within the EU suffering from discrimination on the listed or other ‘suspect grounds’ without limitation. It also applies to third-country nationals, although the extent to which Member States can treat them differently compared with own nationals is still under debate.28 When it comes to grounds of discrimination with regard to which no secondary EU legislation exists – such as genetic features or political opinion – the EU institutions are bound to respect these prohibitions when they adopt EU law. Furthermore, the principles of equality and non-discrimination are general principles of EU law that must be taken into account in all activities of the EU. There is, however, no indication so far that the grounds for discrimination on which the EU has not adopted secondary legislation, which the Member States could have implemented, can have direct effect between private parties under EU law. C.  Specific Rights The potential of Article 21 is related to the new approach to combatting discrimination that can be found in the relevant provisions of the Lisbon Treaty (Articles 2–3 TEU and Articles 8 and 10 TFEU), as well as to the international standards ratified by all EU Member States in accordance with Article 53. This regulation indicates that when it comes to different international treaties regulating non-discrimination, the Member States and the EU cannot apply a lower level of protection. There is no doubt that Articles 20 and 21 contains rights, not only principles. With regard to the prohibition of discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation on which secondary legislation has been adopted non-discrimination rights must be effectively implemented in the Member States, as required by Directives 2000/78/EC and 2000/43/EC.

an exemption from the rule of unisex premiums and benefits worked against the achievement of the objective of equal treatment between men and women, which is the purpose of the Directive, and is thus incompatible with Arts 21 and 23 of the Charter. That provision had therefore, according to the CJEU, to be considered invalid upon the expiry of an appropriate transitional period (‘34 In the light of the above, the answer to the first question is that Article 5(2) of Directive 2004/113 is invalid with effect from 21 December 2012.’). 28 See Claire Kilpatrick, ‘Article 21 – Non Discrimination’ in Peers et al (n 13) 588.

394  Niklas Bruun The CJEU has concluded that the provisions of Directive 2000/78/EC had to be interpreted and applied with reference to the general principle of equal treatment, which in turn is derived from and gives effect to the right to equality and non-discrimination, which is embedded in international human rights law and the constitutional traditions of the Member States.29 In a subsequent case, the Court confirmed that the same logic applied in respect of the provisions of Directive 2000/43/EC.30 This interpretative approach has a firm basis in the text of both Directives. The recitals to both the 2000 Directives make clear that they are intended to further the EU’s commitment to the ‘values of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law’. More specifically, the recitals to both Directives acknowledge that the right to equality before the law and protection against discrimination constitutes a ‘universal right’, which is protected by all the major UN human rights treaties and by the ECHR. The relationship between the specific Directives on non-discrimination and Article 21 CFREU seems to be different from the traditional approach to fundamental rights and instruments implementing such rights and even slightly contradictory. In the Vital Perez case the CJEU stated it follows that, when it is a ruling on a request for a preliminary ruling concerning the interpretation of the general principle of non-discrimination on grounds of age, as enshrined in Article 21 of the Charter, and the provisions of Directive 2000/78, in proceedings involving an individual and a public administrative body, the Court examines the question solely in light of that directive.31

Since Member States have an obligation to apply the CFREU when implementing EU law it is difficult to understand why Article 21 would not be of relevance in the context of a preliminary ruling regarding adequate implementation or interpretation of relevant EU law. Furthermore, it is not clear how we should understand the wording ‘solely in light of that directive’. Taking into account that the preamble includes detailed references to several non-­ discrimination human rights instruments these should actually be seen as part of ‘that ­directive’. As indicated above, the recent Egenberger case seems to represent a new approach in this regard, in which the CJEU emphasises that the national courts must ensure that national law is not only in conformity with Directive 2000/78, but also with Articles 21 and 47 CFREU.

29 CJEU, 19 January 2010, C-555/07, Kücükdeveci, paras 20–24. 30 CJEU, 12 May 2011, C-391/09, Runevic-Vardy, para 43. 31 CJEU, 13 November 2014, C-416/13, Vital Perez, para 25. See also CJEU, 7 June 2012, C-132/11, Tyrolean Airways, in which the Court only examined the questions regarding Directive 2000/78/ EC and saw ‘no need to answer’ questions regarding Article 21(1) CFREU. A similar approach was applied in CJEU, 14 March 2018, C-482/16, Stollwitzer and CJEU, 7 February 2018, Joined cases C-142/17 and C-143/17 Maturi et al.

Articles 20 and 21  395 Based on CJEU practice it is not clear either what relevance the Court attaches to the inclusion of a specific reference to Articles 20–21 CFREU in questions referred by a national court to the CJEU in the context of a request for a preliminary ruling. It is not difficult to find cases in which the question is ignored altogether; in some cases the CFREU is referred to without any explicit reference to it by the national court.32 What seems clear is that to date, in most cases regarding preliminary rulings, the CJEU refers to Articles 20–21 not as independent sources of law, but rather as sources that recognise, confirm and illustrate the general principles of equal treatment and non-discrimination that form a part of EU law. The CJEU prefers primarily to deal with issues in preliminary rulings in light of the provisions in the Directives on non-discrimination and national law implementing them. i.  Positive Obligations It has already been stated that the prohibition of discrimination actually contains four separate legal norms. The last is supposed to guarantee effective protection against discrimination, as well as to take positive action in order to achieve equality. Despite the rather restrictive wording of Article 21 it is not adequate to interpret it as a merely negative provision, prohibiting the Member States from behaving in a certain manner, but the non-discrimination clause contains both a negative prohibition and a strong positive obligation to eliminate discrimination. This strong obligation emanates from the international treaties that all EU  Member States have ratified and for which achieving substantive equality forms the core aim with regard to non-discrimination law. The language of the CEDAW Convention can illustrate this. According to Article 2 CEDAW ‘States Parties condemn discrimination against women in all its forms’ and ‘Agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.’ Furthermore, the adoption of temporary special measures aimed at accelerating de facto equality between women and men under Article 4 CEDAW shall not be considered discrimination. Articles 21 and 53 read in conjunction with the Lisbon Treaty provisions open up for an approach in which substantive equality is favoured vis-à-vis formal equality.33 It seems evident that these provisions, together

32 See also Kilpatrick (n 28) 594, who argues that Art 21 has been either (a) sidelined in favour of using the general principles of fundamentals rights route when it comes to status discrimination, (b) entirely ignored (status and nationality discrimination) or (c) given relevance when assessing the validity of EU law and in that sense controlling the EU lawmaker. 33 Especially the CJEU’s rather strict approach to positive measures applied in C-450/93, Kalanke, C-409/95, Marschall and C-407/98 Abrahamsson.

396  Niklas Bruun with Article 23, form a solid ground for reconsidering CJEU jurisprudence, which has been based on notions of formal equality and so-called symmetric perceptions.34 Article 7 CERD states that ‘State Parties undertake to adopt immediate and effective measures … with a view to combating prejudices which lead to racial discrimination’. A similar prohibition of discrimination combined with a strong positive obligation to act can be found in Article 5 CRPD. ii.  Conceptual Framework The conceptual framework of discrimination law is well developed in the European Union. Unfavourable treatment forms the core of discrimination, which can be either direct or indirect discrimination. Whether something is unfavourable can derive either from the fact that someone else (a comparator) is treated or would have been treated differently in a similar situation or that the unfavourableness is evident from the treatment as such (harassment, violence against women and so on). The CJEU has also established that, in certain circumstances, the principle of equal pay is not limited to situations in which men and women work for the same employer. The distinction between direct and indirect discrimination is also important. Direct discrimination occurs when differentiation is made on a protected ground as such, while indirect discrimination occurs when an (apparently) neutral rule, criterion or practice affects a specific group related to a ‘protected ground’ in a disadvantageous way. When such disadvantageous treatment occurs it can be justified as non-discriminatory if it pursues a legitimate aim, and the means for achieving this aim are appropriate and necessary.35 The distinction between formal discrimination and substantive discrimination is also important. This is based on the fact that formally equal treatment of persons in a different position might maintain differences. Under a formal-­ equality approach, gender, race, nationality or other status is regarded as irrelevant; people are supposed to be treated in accordance with their ‘merits’ alone. By contrast, substantive equality recognises what are perceived to be the specific features of an individual’s identity and tries to respect and accommodate their difference, removing the detriment but not the difference itself.36 It has been argued that Article 21 could provide an important overarching resource for adapting EU legislation to the need for protection against cumulative or intersectional discrimination, which is not expressly dealt with in European law.37 To date there have been very few indications of this.38 34 See further on symmetry in discrimination law, Sandra Fredman, Discrimination Law (Oxford, Oxford University Press, 2011) 232. 35 These are the famous Bilka criteria, which the CJEU adopted in 1986 in the case Bilka-­Kaufhaus. 36 See Fredman (n 34) 30. 37 Kilpatrick (n 28) 591. 38 See CJEU, 10 July 2008, C-54/07, Feryn.

Articles 20 and 21  397 Discrimination based on nationality has always been dealt with separately from other forms of discrimination in EU law because it is one of the cornerstones of the whole EU project that nationals of one Member State should not be treated less favourably due to their nationality in another Member State. As stated in Article 18 (1) TFEU ‘any discrimination on grounds of nationality shall be prohibited’. Furthermore, nationality rights include the right to citizenship of the European Union: ‘Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship’ (Article 20(1) TFEU). Against this background it is rather surprising that the CJEU carefully seems to avoid referring to Article 21(2) CFREU, even when national courts directly ask about its relevance. In the case Ruiz Zambrano (C-34/09) the Court referred to Articles 18 and 20 TFEU when discussing the situation of family members, including a father, a Colombian national, who had dependent minor children who had Belgium citizenship and thereby also the status of citizens of the Union.39 It seems that the CJEU does not really see any added value in Article 21(2), but rather sees it as some form of confirmation or recognition of Article 18(1) TFEU. The CJEU also applies a rather narrow approach to the situations covered by the concept ‘when implementing EU law’ when it comes to situations involving the right to free movement of EU citizens.40 D. Limitations The personal scope of Article 20 is very broad. It covers differences in treatment between all natural persons. In the context of EU Member States it is less clear whether ‘everyone’ also covers ‘Member States’ and whether a Member State can invoke Article 20 when it has been treated ‘unequally’. It is not out of the question that Article 20 could apply and at least the general principle of equal treatment that forms part of the European Union’s constitutional architecture would be relevant. Any limitation to the principles of equality must fulfil the criteria laid down in Article 52. When it comes to discrimination the question of limitations is highly relevant because the issues at stake in practice relate to the possible justification of different or unfavourable treatment. Here we can note that rights recognised by this Charter for which provision is made in the Treaties are supposed to be exercised under the conditions and within the limits defined by those Treaties (Article 52(2)). This seems to explain the CJEU’s approach to Article 21(2); to date, it is very difficult to find any added value in this paragraph compared with Article 18(1) TFEU.



39 CJEU, 40 See

8 March 2011, C-34/09, Ruiz Zambrano. CJEU, 8 May 2014, Case C-483/12, Pelckmans Turnhout NV.

398  Niklas Bruun E. Enforcement The shifted or shared burden of proof is important for the enforcement of any provisions prohibiting discrimination. According to Article 19 Equal Treatment Directive Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged, because the principle of equal treatment has not been applied to them, establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.41

In EU law it has long been accepted that economic sanctions for discrimination cannot be standardised and so there is a fixed upper limit; but sanctions must be effective, proportionate and dissuasive. Under Directive 2014/54/EU Article 3 Member States shall ensure that after possible recourse to other competent authorities including, where they deem it to be appropriate, conciliation procedures, judicial procedures, for the enforcement of obligations under Article 45 TFEU and under Articles 1 to 10 of Regulation (EU) No 492/2011, are available to all Union workers and members of their family who consider that they have suffered or are suffering from unjustified restrictions and obstacles to their right to free movement or who consider themselves wronged by a failure to apply the principle of equal treatment to them, even after the relationship in which the restriction and obstacle or discrimination is alleged to have occurred has ended.42

Furthermore, Member States shall ensure that associations, organisations, including the social partners, or other legal entities, which have, in accordance with the criteria laid down in their national law, practice or collective agreements, a legitimate interest in ensuring that this Directive is complied with, may engage, either on behalf of or in support of, Union workers and members of their family, with their approval, in any judicial and/or administrative procedure provided for the enforcement of the rights referred to in Article 1. III. CONCLUSIONS

On a positive note the case law of the CJEU has established that the primary purpose and objective of the 2000 Directives on non-discrimination is to give effect to the principle of equal treatment under Article 20 CFREU and to ensure

41 A similar provision is contained in the Racial Equality Directive Art 8 and the Employment Equality Directive Art 10. 42 Emphasis added.

Articles 20 and 21  399 that individuals are protected against discrimination in line with Article 21 CFREU. Furthermore, the Court has made it clear that also for this reason the Directives should not be read in a narrow or excessively formalistic manner. Court practice has also confirmed that the validity of EU legislation can be challenged on the basis of Articles 20 and 21 CFREU.43 There is, however, a need for the CJEU to clarify the relationship between the general principles of equal treatment and non-discrimination law and Articles 20 and 21 CFREU. Lately, for instance in the Egenberger case, the CJEU has indicated a willingness finally to recognise the ‘stand-alone’ legal value of the rights enshrined in Articles 20 and 21. On a critical note it must be mentioned that the potential of Articles 20 and 21 has been far from fully exploited. There are international minimum standards in different fields of discrimination law in the form of international agreements to which all the EU Member States are party, which should form the EU minimum standard under Article 53. Both the UN instruments and the ILO instruments in this regard are almost invisible as sources in CJEU jurisprudence. Only the UN CPRD is an exception but, as noted, this instrument has been explicitly approved by the European Union.44 An interesting issue is the reason why reference to and use of these international sources is lacking, because although they have not been adopted by the European Union, they have been ratified by all Member States. Are references to such instruments lacking because national courts do not refer to them in their submissions to the CJEU or is it the explicit policy of the Court? Such a policy would, however, be difficult to justify in light of the wording of Article 53. Therefore it seems possible that a Member State could defend a particular way of implementing EU non-discrimination law in terms of its international obligations; for instance, some ‘temporary special measures’ taken to improve the situation of women in employment could be justified under Article 4 CEDAW Convention and not regarded as discrimination against men under EU law.

43 CJEU, 1 March 2011, C-236/09, Test Achats ASBL. See also CJEU, 26 September 2013, C-195/12, Industrie du bois de Vielsalm & Cie. In the latter Arts 20 and 21 CFREU did not prevent Member States from taking certain measures concerning environmental protection. 44 See Council Decision 2010/48/EC.

400

20 Article 23 – Equality Between Men and Women CSILLA KOLLONAY LEHOCZKY

Article 23 Equality between men and women Equality between men and women must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the underrepresented sex.

EXPLANATIONS The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union, which impose the objective of promoting equality between men and women on the Union, and on A ­ rticle 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers. It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working ­conditions. The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend ­Article 157(4).

402  Csilla Kollonay Lehoczky I. INTRODUCTION

A.  Context and Main Content Equality between women and men is a core right and fundamental value enshrined in Articles 2 and 3 TEU and Article 8 TFEU, engendering obligations of the Union and national governments. The European Economic Community originally viewed equality of women and men as a purely economic requirement (first mere pay equality, Article 119 TEC), as a precondition of fair competition – similar to the equal treatment of Community nationals exercising the freedom of movement for economic purposes. Already since this early time there have been references by the Court that non-discrimination on the ground of sex forms part of the ‘fundamental personal human rights’, observance of which Community law has to ensure.1 The Amsterdam Treaty, creating the ‘area of freedom, security and justice’, also broadened the equality competences and made explicit the human rights orientation of Community equality law. The development of the primary and secondary legislation enumerated in the Explanations and the history of their expansion from the 1970s has been described by Yota Kravaritou.2 A dynamically developing set of secondary legal instruments, accompanied by an impressive number of CJEU judgments, have been adopted to promote realisation. Besides the elaboration of the legal framework numerous political declarations and Union documents3 have acknowledged and affirmed this right and fundamental principle as a guiding value and goal of the Union. Despite the broadening scale and increasing number of documents this goal is far from being accomplished today, more than six decades after the founding of the E ­ uropean Community. The dynamically evolving legal framework and an impressive case law have not been able to bring about the expected radical changes in the status of women as a class. The deficiencies are illustrated by – among other things – the enduring pay-gap of 16 per cent4 and remaining asymmetries in work and career opportunities.5 1 CJEC, 15 June 1978, C-149/77, Defrenne III, ss 26–27. See M Bell, ‘The Principle of Equal Treatment: Widening and Deepening’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 2011) 626. 2 Y Kravaritou, ‘Equality Between Men and Women (Art 23)’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 229–37. 3 Strategy for equality between men and women 2010–2015 (http://ec.europa.eu/justice/genderequality/files/documents/strategy_equality_women_men_en.pdf), confirmed and continued by the Strategic engagement for Gender Equality 2016–2019 (https://ec.europa.eu/anti-trafficking/sites/ antitrafficking/files/strategic_engagement_for_gender_equality_en.pdf), the Women’s Charter of March 2010 (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0078:FIN:EN: PDF) the European Pact for Gender Equality 2011–2020 https://www.consilium.europa.eu/uedocs/ cms_data/docs/pressdata/en/lsa/119628.pdf). 4 Eurostat, 2018 March (http://ec.europa.eu/eurostat/statistics-explained/index.php/gender_pay_ gap_statistics). 5 For detailed data see: Eurostat gender data, February 2018 (http://ec.europa.eu/eurostat/­ statistics-explained/index.php/Gender_statistics).

Article 23  403 The main and inherent addition of Article 23 is the radical shift from the former employment focus of EU gender equality law to a broad, all-­encompassing scope and concept of equality. The formerly exclusive employment, work and pay context is now only one element within the broad target of achieving equality between the sexes ‘in all areas’. The great promise of this new scope is that achieving equality outside employment may bring more equality in the area of work and occupation. This radical extension carries the promise of two further shifts. First, the final shift from the original economic conception of equality based on the narrow, formal Aristotelian6 concept guaranteeing equal treatment of ‘equals’ moving between Member States and reiterated mechanically in CJEU decisions in gender cases, regardless of the asymmetric reality7 of the human rights conception requiring equal treatment of persons with attributes different from the dominant groups, who are thus considered inferior and are burdened with historical disadvantages. Another shift implied in the main context of Article 23 is the expected shift away from the equality model based on the right to individual complaint. This might bring success to individual victims of unequal treatment (if all barriers are overcome), but it cannot bring about changes in the status of the category of women as such. Article 23 draws on the Revised European Social Charter (RESC) promoting equality between sexes through dynamic, progressive steps using a collective approach, exercising influence through regular assessment of the progress achieved. This method is apparently more efficient in making gender equality a social reality.8 The collective approach does not deprive individuals of individual rights, but instead generates additional group rights. Class equality as a right and principle engenders corresponding state obligations and, in certain cases, failing to meet such obligations towards a group of persons may also create enforceable rights for the individual. The analysis in this chapter goes beyond employment and occupational equality, considering the motivation behind Article 23: the inherent and insoluble relationship between equality in ‘all areas’ and equality in the labour market – without equality in all areas, progress in employment is blocked. The intention of basing the analysis of this chapter on matters beyond employment is fortified by the chance that the long-practised ‘market’ approach may still affect interpretation. This is reflected in the slide back to Article 157 TFEU as the main framework for equality of sexes in the Explanations. 6 ‘The principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified’ in the CJEU’s ‘translation’. 7 D Schiek, L Waddington and M Bell (eds), Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Oxford, Hart Publishing, 2007). 8 C Kollonay Lehoczky, ‘The Social Charter and EU law on Gender Equality. A Comparative Overview’ in M Rönnmar and J Julén Votinius (eds), Festskrift till Ann Numhauser-Henning (Lund, Jurisförlaget i Lund, 2017).

404  Csilla Kollonay Lehoczky This regression, which regrettably turns up in court decisions and commentaries, might narrow the concept of gender equality and prevent the full unfolding of this promising provision. It might take some time before it is properly appreciated that the excessive reference to Article 157 TFEU in the Appendix to Article 23 should be treated with great caution as a guide to interpretation, not only because the Appendix has no binding force,9 but also – and all the more – because it is not in compliance with the broader scale and more positive content of Article 23. B.  Relationship to Other Provisions of the Charter i.  Relationship to Other Provisions of Title III Article 23 is located in Title III on Equality (Articles 20–26) of the Charter. Articles 20–21 require the guarantee of equal treatment and the prohibition of discrimination. This apparently ‘negative’ nature of the norms does not ­necessarily require that the State merely abstains from certain conduct. ­Eliminating discrimination might also require positive measures.10 Article 22 on the obligation to ‘respect’ religious, cultural and linguistic diversity, while not phrased as a prohibition, similarly imposes a negative and positive obligation to observe the rights of religious, cultural and linguistic groups. ­Articles 24 to 26, on the other hand, cover the protection of categories of persons (children, elderly and persons with disabilities) whose fundamental right to dignity and autonomy clearly requires state activity and positive ­measures. Commentators consider this ‘central’ position as an expression of the substantive and transformative content of Article 23, contrasting it first of all with the merely prohibitive content of Articles 20 and 21.11 It has to be added that locating Article 23 between the neutral equality provisions, on one hand, and the protective provisions on vulnerable groups, on the other, underlines the end of the protective, patronising approach of the past, which resulted rather in discriminatory differentiation than in granting equal rights to women. ii.  Relationship with Other Provisions of the Charter Article 23 is in direct and close relationship with Article 33 on the protection of family and professional life, with special regard to the provisions of ­Article 33

9 See ch 7 by Klaus Lörcher on interpretation and minimal protection, s III.B.vii. 10 See Niklas Bruun, ch 19, s II.C.i, in this volume. 11 Kravaritou (n 2) 220–21; D Schiek, ‘Article 23’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 637–38.

Article 23  405 on protection against dismissal connected to maternity, a specific form of sex discrimination. The goal of protecting the equal opportunities of workers  – both men and women – with family responsibilities affects the equal opportunities of women first and foremost, given the still highly uneven distribution of childcare and other family responsibilities. Similarly, through the social role assigned to women there is a clear connection between Articles 23 and 33 and Articles 24, 25 and 26 protecting children, the disabled and the elderly, whose ability to enjoy equal opportunities and a dignified life needs special safeguards and services. Failure by the State to fulfil its obligations under these provisions affects women’s equal opportunities. A number of prejudicial social attitudes, discriminatory or exploitive conduct and forms of degrading treatment of women are also now prohibited under Title I (Dignity),12 Title II (Freedom)13 and Title IV (Solidarity).14 Besides these general issues of the rights of women as human beings, the connection with employment is evident, for example, with regard to Article 15 (freedom of occupation and to engage in work), Article 12 (freedom of assembly and association), Article 14 (right to education), the provisions on economic freedoms and all fundamental rights under Title VI on solidarity. The extended scope of Article 23 rights – covering work-related matters regulated by TFEU Article 157 and also a broad area beyond – as well as the implied requirement of adopting Community laws and policies with a view to promoting gender equality (gender mainstreaming) permeates the relationship of Article 23 with the whole Charter, with all rights inside and outside the employment context. This also confers dual character on its relationship with Title VII provisions and specifically with Article 52(2): one can see it as an empowerment rather than setting limits for Article 23.15 C.  Relationship to Other Relevant Instruments i.  EU Instruments The Explanations mention Article 3 TEU (replacing Articles 2 and 3(2) TEC in force at the time of the 2000 adoption), and Article 8 TFEU as the main basis of Article 23. These provisions lay down the obligation to promote equality between men and women. Article 8 TFEU has extended its scope to ‘all activities’ of the Union continuously in the course of time. 12 Art 3(2) the prohibition on making the human body and its parts as such a source of financial gain; Art 5 on the prohibition of forced labour, prohibiting also trafficking in human beings. 13 Art 7 on respect for private and family life, the right to marry and right to found a family, Art 14 on the right to education and Art 17 on the right to property. 14 Besides Art 33 mentioned above, see also Art 34 on the right to social security and social assistance and Art 35 on the right to health care. See also Kravaritou (n 2) 323. 15 See the detailed analysis of the relationship with Art 52(2) in ch 7 on interpretation and ­minimum level of protection by Klaus Lörcher in this volume.

406  Csilla Kollonay Lehoczky The reference to Article 157 TFEU and to Article 2(4) of Directive 76/207/ EEC (superseded by the Recast Directive)16 disappointingly attempts to narrow the broad scope indicated by the relevant Treaty provisions to employment and occupation. The Explanations also mention Point 16 on equal treatment for men and women of the Community Charter on the Fundamental Social Rights of Workers. It is not legally binding and in light of existing developments under the Amsterdam Treaty and afterwards its mention appears somewhat redundant. Besides these EU norms mentioned by the Explanations, a further, expanding set of secondary legislation,17 soft law instruments18 and a sophisticated and remarkably rich CJEU case law might be considered to be EU instruments in support of the realisation and application of Article 23. The reference to gender equality in the Treaty (Article 3(2) TEC), the connection of this obligation to ‘all activities’ of the then Community, the mandatory nature and its direct legal effect, as well as the implied ‘mainstreaming’ ­obligation of the Community legislature are logical conclusions.19 The Lisbon Treaty has brought about radical changes in the constitutional architecture of the Union, including the context of gender equality. Article 2 TEU, a new provision on the values of the European Union,20 the new regulation of competences of the Union and the Member States – all these are significant new elements of the post-Lisbon period,21 impacting on the interpretation of Article 23, too. The radical changes are acknowledged as the framework of ­Article 23, with reference particularly to Article 8 TFEU. This acknowledgement makes surprising the regression in the Explanations trying to connect this article to the limited scope of equality in employment and occupation under Article 157. The impressive amount of CJEU case law has been coupled with a predominantly progressive influence on the development of gender equality. In some details, however, the case law might be subject to some criticism for applying the limited, formal Aristotelian concept of justice routinely repeated in equal treatment cases, regardless of the context.22 16 Directive 2006/54/EC on the principle of equal opportunities and equal treatment in matters of employment and occupation. 17 Directive 2010/41/EU on equal treatment in self-employed activities (Self-Employed Directive) 2004/113/EC on equal treatment in access and supply of goods and services, (Services Directive), Directive 92/85/EEC on the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (Pregnant Workers Directive) and Directive 2010/18/EU implementing the revised Framework Agreement on parental leave (Parental Leave Directive). 18 See n 3. 19 Mainstreaming was introduced into Community law by the Communication of the Commission of 21 February 1996 on ‘Incorporating equal opportunities for women and men into all Community policies and activities’ [COM(96) 67 final – Not published in the Official Journal]. 20 See F Dorssemont, ‘Chapter 2. Values and Objectives’ in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012) esp 45–48, 58. 21 On the significance and details of the change of competences see K Lörcher, ‘Chapter 6. Social Competences’ in Bruun, Lörcher and Schömann (n 20), for our purposes esp 178–79, 182–85. 22 For a critique of the application of the formal Aristotelian equality concept (concerning the statements of AG Kokott in the Test Achats case), see Schiek (n 11) 637.

Article 23  407 The 20 principles of the European Pillar of Social Rights23 include gender equality as the second principle, however, it does not add anything to Article 23, rather limiting gender equality to ‘equality of treatment and opportunities’, contradicting the incomparably broader concept of ‘equality’ under Article 23. ii.  Council of Europe Instruments The two main human rights conventions of the European continent – the ECHR and the RESC – have been taken into consideration as sources of inspiration for the CFREU. The Explanations on Article 23 mention only the European Social Charter of 3 May 1996 (Revised Social Charter, RESC) and its Article 20 on gender equality in employment and occupation. The ECHR is not mentioned in this context. Article 23 has a connection to a host of other articles of the RESC, not mentioned in the Explanations. Most of them are of primary significance for equality between the sexes, such as pay equality (explicitly provided for in Article 4(3) ESC), equality in social security and social assistance, equal treatment of migrant workers regardless of their sex, the right to health and issues of education – to mention only those closest to the employment context. The ECHR is not mentioned at all in the context of Article 23. This selectivity in the Explanations, together with the fact that the ECHR is not mentioned at all, suggests an exclusionary approach beyond the narrow employment context, disappointingly contradicting the ambitious text ‘in all areas’. By contrast, the Reading Guide to the CFREU,24 issued by the Conference of INGOs of the Council of Europe, refers to Protocol 7 to the ECHR, Article 5 on the equality of spouses in marriage and in case of dissolution.25 While equality of spouses in family relationships is not directly related to employment, it nevertheless has multiple implications also for free movement for work purposes, decisions on children’s education and so on. Overall, the potential restriction of the content of Article 23 to employment-related matters by the Explanations should not govern the interpretation of this provision. iii.  ILO Instruments The most important ILO Convention on the equality of women is the Equal Remuneration Convention, 1951 (No 100). This fundamental convention requires ratifying countries to ensure the application to all workers of the principle of equal remuneration for men and women for work of equal value. The term ‘remuneration’ is broadly defined similarly to Community norms, going 23 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. COM/2016/0127 final. 24 Reading Guide to the CFREU, issued by the INGOs to the Council of Europe, prepared by Marie Schmitt, 2008. 25 European Convention on Human Rights Additional Protocol 7, Strasbourg 1984, Art 5 Equality between spouses.

408  Csilla Kollonay Lehoczky beyond the ordinary, basic or minimum wage or salary and extending to any additional compensation payable directly or indirectly by the employer to the worker arising out of the worker’s employment. The Discrimination (Employment and Occupation) Convention, 1958 (No  111) is a treaty on the prohibition of discrimination in employment on the basis of race, colour, sex, religion, political opinion, national extraction or social origin. It requires States to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in these fields. The scope of the Convention – similar to the RESC and the Recast Directive of the Union – covers access to vocational training, to employment and to particular occupations, as well as terms and conditions of employment. iv.  UN Instruments Based on the general declarations in the UN Charter and the UN Universal Declaration of Human Rights (UDHR) the ‘twin’ UN human right conventions, the ICCPR and the ICESCR, both adopted in the mid-1960s, not only declare the equal protection of the rights recognised under those conventions for everyone, ‘without distinction of any kind’, including sex,26 but also specifically they declare the obligation of Party States to ensure equal enjoyment of those rights by men and women.27 In addition to the declaration of equality as a horizontal principle in respect of all rights under this treaty, its Article 7 purposely expresses the recognition of the right of women to equal working conditions and equal pay and the right of everyone to equal chances of promotion.28 CESCR General Comment No 23 (2016) on Article 7 emphasises the importance of fair wages and working conditions promoting the freedom of women in choosing their activity, aimed at deconstructing the male bread-winner and female carer models.29 At UN level the most relevant and important instrument is the Convention on the Elimination of Discrimination against Women (CEDAW) adopted at the end of the ‘Decade of Women’, in December 1979. This instrument is different from the text of Article 23. Not indicating any priority or asymmetry between the male and female sexes, CEDAW is unequivocally and only about eliminating women’s existing disadvantages. Its provisions suggest, and its Article 4 ­explicitly calls for positive measures for ‘accelerating de facto equality between men and women’. While such ‘special measures’ are also treated as exemptions from the prohibition of discrimination, its more exigent (and not merely ­permissive)

26 Art 2 of both conventions. 27 Art 3 of both the ICCPR and the ICESCR. 28 ICESCR, Art 7(a)(i) and (c). 29 https://www.escr-net.org/resources/general-comment-no-23-2016-right-just-and-favorableconditions-work.

Article 23  409 language might be regarded as a possible model for the strongly reserved and hesitant approach of the CJEU.30 II. CONTENT

A.  General Observations Article 23 on equality between men and women reflects the intent of the Convent to make radical progressive steps towards equality between women and men. Earlier drafts31 remained within the field of employment and work. The shift, accepting the radical proposals on extension to ‘all areas’ came late, in the final text proposed by Convent 47. Besides this extension of the field of application, the provision goes above and beyond the existing gender acquis in many ways. First, it mandates more than equal treatment and more than equal opportunity: it says equality; real equality, in its genuine, substantive meaning in all areas of life. Second, this broad, substantive concept implies the obligation of positive action: not an exception from equal treatment rather its fulfilment, underlining the collective approach in achieving this goal. i.  Real Equality Between Inherently Unequal Groups The term ‘equality’ makes it unequivocally clear that Article 23 requires much more than mere removal of legal obstacles or unfavourable treatment. The enduring differences in the social division of labour, establishing male and female roles (money-making versus family care), with its corresponding stereotypes, confines women as a group to low paid, low prestige jobs. Low paid female occupational areas determine the price of the female labour market even outside the traditionally segregated areas. While earning less, they have to work more to perform their double roles.32 Conforming to the standard expectations results in sacrifice and disadvantage. Departure from the standard similarly has drawbacks for both professional and private life. Men, as a group, do not need to choose or undertake hindrances. The asymmetry of gender positions has been analysed profoundly in the European literature33 and there is a wide consensus that equal treatment in such

30 See on the CEDAW provision Schiek (n 11) 641. 31 Convents 35, 45, on that occasion on Art 22. 32 The injustice addressed in CESCR General Comment No 23, para 47 (x) on ‘non-paid work’ is a result of this social division and distribution of life-roles. 33 See primarily the works of D Schiek, ‘A New Framework of Equal Treatment of Persons in EU Equality Law’ (2002) 8 European Law Journal 290–314, but in our context mainly Schiek (n 11) 646–47.

410  Csilla Kollonay Lehoczky a socially created unequal situation can only preserve the group disadvantages of women.34 Similarly, the concept of equal opportunities, helping women’s access or promotion, may bring advantages for some (mainly better positioned) members of the discriminated-against class. However, enabling advancement within the framework of the dominant value system perpetuates that system,35 at the same time suggesting or confirming that women need special advantages to compete with men. Thus, while maintaining the assimilationist model (women might be treated equally if they complied with male standards), it confirms existing stereotypes and perpetuates inequality. From among the variety of concepts the idea of ‘substantive’ equality36 is most widely accepted, as not contradicting theories of ‘transformative’37 equality (having the goal of overcoming group disadvantages resulting from social stereotypes and classifications) or ‘diversity’, putting the emphasis on the acceptance and awareness of differences between individuals and groups of persons (such as women and men), without attaching any value (superior, inferior) to group attributes.38 ii.  The Obligation to Take Positive Measures The text of Article 23 requires that equality ‘must be ensured’ in all areas. The choice of words and the imperative mode39 reflect the intention of the drafters to establish an obligation on the addressees to take action and adopt measures towards the attainment of equality not only in law but also in fact. The idea of positive action has gained ground in EU gender equality law in a controversial way. It was adopted as a form of permitted derogation from equal treatment in the Equal Treatment Directive,40 debilitating its role in removing gender inequalities. The mistaken status of ‘positive action’ in the Equal Treatment Directive obtained strong (and misguided) confirmation from the first cases adjudicated

34 S Fredman, Discrimination Law (Oxford, Oxford University Press, 2011) 154. 35 JH Schaar, ‘Equality of Opportunity, and Beyond’ in LP Pojman and R Westmoreland (eds), Equality; Selected Readings (Oxford, Oxford University Press, 1997) 138. 36 See M Bell, ‘Article 20 – Equality Before the Law’ in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 94–95. 37 S Fredman, ‘Positive Duties and Socio-economic Disadvantage: Bringing Disadvantage Onto the Equality Agenda’ (2010) 3 European Human Rights Law Review 290–304; Fredman (n 34) 31–32. 38 C McKinnon, ‘Difference and Dominance’ in K Bartlett and R Kennedy (eds), Sex Discrimination in Feminist Legal Theory (Boulder CO, Westview Press, 1991). 39 One commentator labels the language ‘tantalising’, C Costello, ‘Gender Equalities and the Charter of Fundamental Rights of the European Union’ in T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights – A Legal Perspective (Oxford, Hart Publishing, 2004) 116. 40 Art 2(4) of Dir 76/207/EEC.

Article 23  411 by the CJEU. The Kalanke41 and Marschall42 cases did indeed reach (Kalanke even crossed it) the borderline of formally equal treatment, which is what a ‘quota’ is. The CJEU considered any preference given to women discriminatory against men and thus required strict justification. However, ‘quotas’ represent only a narrow fragment of the broad scale of ‘positive measures’ of a much less intrusive nature. Despite the CJEU’s narrow phrasing and strict interpretation, the view that ‘positive measures should be understood as part and parcel of the concept of equality, a necessary means for achieving substantive gender equality, rather than being treated as exceptions to it’43 is widely held and confirmed. Clarifying the meaning of positive action reveals first of all that it is not a synonym for permitted discrimination (even if labelled ‘positive’). It indicates a broad range of measures taken primarily in order to change existing social practices, to eliminate patterns of group exclusion and disadvantages.44 Legal or policy measures targeting a certain situation45 or disadvantage (rather than a disadvantaged group of persons) can best avoid the suspicion of discrimination, while reaching those exposed to the disadvantages. The more such measures move away from preferences granted to individuals, the less doubt there can be about their non-discriminatory nature. Positive measures, adopted with regard to the collective disadvantages of women as a group, underline the inherently collective nature of the expected legal and policy developments under Article 23 CFREU. The removal of group disadvantages means either the removal of rules or measures privileging the dominant group,46 or removing or equalising de facto disadvantages.47 Such measures do not go beyond equal treatment in substance. Still, such measures may raise the case of indirect discrimination, similarly a group concept. In the area of working life such action can be justified under Article 157(4) TFEU, and also the Recast Directive, Article 3, by the legitimate aim of the measure. The legitimate aim for other areas follows from Article 8 TFEU within the scope of the already extended competences of the EU.48 Article 23 goes further and may change the context. While positive action under EU law is only permitted, under this provision it is an obligation.

41 CJEU, 17 October 1995, C-450/93, Kalanke v Freie Hansestadt Bremen. 42 CJEU, 11 November 1997, C-409/95, Hellmut Marschall v Land Nordrhein-Westfalen. 43 C McCrudden, ‘Gender Equality in the European Constitution’, paper delivered at the conference ‘Progressive Implementation: New Developments in European Union Gender Equality Law’, The Hague, 18–20 November 2004. See also Costello (n 39) 125. 44 C O’Cinneide, ‘Positive Action and the Limits of Existing Law’ (2006) 12 Maastricht Journal of European and Comparative Law 351–64, 359. 45 Eg guidelines for labour market offices to consciously focus on gender-neutral practices, special training opportunities through local institutions for persons long term away from the labour market for family reasons and so on. 46 Eg removal of benefits based on military service or length of service requirements where it is not essential with regard to the quality of work. 47 Such as maternity leave in case of pregnancy and childbirth. 48 See n 21 above.

412  Csilla Kollonay Lehoczky ­ herefore, failure to pay regard to women’s existing disadvantages and the obliT gation to remove disadvantages by positive action when adopting legal or policy measures, may qualify as indirect discrimination. The real collective meaning and broad opportunities of positive action can be understood within the framework idea of ‘mainstreaming’. The concept was adopted at the UN Fourth World Conference on Women, held in Beijing in 1995 and defined by the UN Economic and Social Council (ECOSOC) as the process of ‘assessing the implications for women and men of any planned action … in any area and at all levels’.49 The neutral, symmetric language on ‘making the concerns and experiences of women as well as of men an integral part of the design, implementation, monitoring and evaluation of policies and programmes’, means, in reality, adding the perspective of women to the formerly standard processes normally based on the mainstream male perspective. This helps in designing and implementing legislative, policy and administrative acts aimed at promoting equality by decreasing or removing disadvantages, created and surrounded by the stereotypes of an androcentric society. iii.  Personal Scope – The Concept of Gender Due to the special, broad context of Article 23 its personal scope is not limited to ‘workers’; it covers anyone of either sex. More exactly, it targets ‘[e]quality between women and men’. The apparent linguistic neutrality of the text has been acknowledged by commentators in part for abandoning the past approach of targeting equality by assimilating women to men, but also for reversing the standard order to ‘women and men’, which is considered a ‘milestone’,50 ­especially given that this was a conscious change inserted in 2007, amending the 2000 version (‘between men and women’) of the title.51 While the neutral approach deserves appreciation, criticism is due over the bipolar concept reflected in the wording ‘between women and men’. This text evidently draws on the obsolete wording of Articles 8 and 157 TFEU and the Recast Directive, although the time for change was indicated more than 20 years ago by AG Tesauro in the case P v S and Cornwall County Council. He called attention to the proposition supported in medical and scientific circles that it was necessary to go beyond the traditional classification and recognise that, in addition to the man/woman dichotomy, there is a range of identities. Thus sex itself is rather a continuum than a bipolarity.52 The binary language not only excludes many people from the protection53 but also reflects the traditional

49 ‘ECOSOC agreed conclusions’ (1997/2), (E/1997/66) http://www.ilo.org/public/english/bureau/ gender/newsite2002/about/defin.htm. 50 Schiek (n 11) 646. 51 OJ 18.12.2000, C/364/13. 52 Case C-13/94. Opinion, 17. 53 See also Schiek (n 11) 644–45.

Article 23  413 approach designating different social roles according to biological sexes. The growing amount of literature54 on this issue may result in new terminology.55 Article 20 RESC, which has stepped beyond this traditional wording, might be a model: its title is ‘The Right to Equal Opportunities and Equal Treatment in Matters of Employment and Occupation without Discrimination on the Grounds of Sex’, and the word ‘women’ is used only once, in connection with special protection, particularly as regards pregnancy. B.  Field of Application Article 23 requires the guarantee of equality ‘in all areas’, signalling the radical extension of the original, limited economic field. The formerly exclusive areas – employment, work and pay – are mentioned as ‘included’, without expressed priority or special importance. Although extended to ‘all areas’, the field of application is not unlimited. The limits are defined, on the basis of Article 51(1) CFREU, by Article 8 TFEU: the field of application of Article 23 ends where the boundaries of ‘all activities’ of the Union are drawn. Whenever its institutions act within their competences and when their acts are implemented, the obligation to promote substantive equality of sexes must be observed. The Lisbon Treaty – while characterised by rather a ‘limitative’ than an expansive approach56 – broadened competences already covered by the Maastricht Treaty to include non-traditional competences, relevant for gender equality beyond employment (such as civil protection, data protection and sport, on top of education and culture). Without decreasing the importance of full equality in employment and profession, the broad range of new areas of public and private life opened for promoting gender equality deserve attention. Building up the legal framework and practice of application of Article 23 going far beyond the existing gender equality acquis is a challenge for EU institutions, national governments and all persons and entities with a stake in genuine equality between sexes. One indication of the uncertainty is that in the rich set of judgments on gender equality since the Lisbon Treaty there is scarcely any reference to ­Article 23 CFREU. The cases reaching the CJEU hardly go beyond referring to Article 21 CFREU, the violation of equal treatment, if the Charter is referred to at all. Furthermore, the reference to Articles 21 and 23 together reflects, at least in the earliest cases, a lack of clear distinction between the essence of these two norms. The Opinion of AG Kokott in the Test-Achats case, a breakthrough 54 For a recent review see S Agius and C Tobler, European Commission Report, ‘Trans and intersex people: Discrimination on the grounds of sex, sexual identity and gender expression’, Luxemburg, Office for Official Publications of the European Union (2012). 55 ‘Gender’ as a ‘node’ of the varieties along the scale of the continuum is one proposal. See Schiek (n 11) 645. 56 Lörcher (n 21) 169.

414  Csilla Kollonay Lehoczky as the first reference to the CFREU, treats both articles as an expression of the fundamental principle of the right to equal treatment and non-discrimination.57 The uncertainty about the relationship between Article 21 and 23 is reflected by later decisions, when Article 23 is always mentioned together with, as a kind of appendix to, Article 21. Two cases can be viewed as first steps along the new road, illustrating the potential new fields of application. Both are connected to the implementation of Regulation 1257/1999 on support for rural development from the European Agricultural Fund. In the Soukupová case58 early retirement of farmers with support from this fund was implemented by setting different conditions for women (lower age limit, number of children), relying on the permitted differentiation under Directive 79/7. The court found this directive not applicable in the given case and declared the national legislation in violation of the obligation, pursuant to Article 51(1) CFREU, to respect the principles enshrined in ­Articles 20, 21(1) and 23 of the Charter.59 In the Ancona case60 the main issue was to decide the criteria for the use of financial contributions from the Structural Fund. Because the concession contract was awarded without a competitive tender, transparency had become an important issue; however, some expenditures, also pay and working conditions, were not transparent. On the basis that competition and public awards require ‘compatibility’ with Union norms, including gender equality, AG Bart puts a remarkable question: How, indeed, is the promotion of equality between men and women, as referred to in Article 23 of the [CFREU] to be ensured if the principle of compatibility does not apply to the employment and working conditions and rates of pay?61

This far-reaching comment already implies the idea of ‘gender-mainstreaming’, corresponding to the envision of Article 23 ‘as embodying a mainstreaming commitment’.62 C.  Specific Rights This sub-section is based on two considerations presented above. First, while Article 23 is not about the prohibition of discrimination (although based on it), the Community case law is. Second, existing gender stereotypes and hierarchised roles are the main reason behind enduring sex inequality and without ­deconstructing them the equality targeted by Article 23 cannot be achieved.

57 AG

Opinion in case C-236/09, Association belge des Consommateurs Test-Achats ASBL, 29. 11 April 2013, C-401/11, Soukupová v Ministerstvo zemědělství. 59 Soukupová, para 28. 60 CJEU, 14 November 2013, C-388/12, Ancona v Regione Marche. 61 Opinion, para 75. 62 Costello (n 39) 116. 58 CJEU,

Article 23  415 In this sub-section we present a selection of developments from areas in which stereotypes play a role in the mind-set of courts, law-makers or employers, thereby maintaining inequality. The admittedly ‘arbitrary’ and far from exhaustive selection is intended to call attention to some opportunities opened by the extended scope of equality under Article 23. i.  Access to Job or Occupation Access of women to jobs formerly reserved for men has traditionally been in the forefront of the struggles for gender equality in the labour market, and there are, indeed, encouraging developments.63 Regrettably, much less is heard about men entering jobs considered traditionally female occupations, although such cases might contribute more efficiently to the removal of gender stereotypes. Article 14(1)(b) of the Recast Directive prohibits discrimination on the ground of sex in access to all types and to all levels of vocational guidance. The UK case of admitting male applicants to training to become midwives is a model for the needed change in mentality about professions. In the case C-165/82 Commission v United Kingdom (1983) the Court dismissed the Commission’s claim of a violation of equal treatment in the UK regulations excluding males from training for the profession of midwife. In contrast to the prejudice permeating the decision64 UK legislation reacted by abolishing the discriminatory rules. Today the profession is open to all and a growing number of male midwives demonstrates the change of minds.65 ii.  Atypical Jobs, Growing Flexibility Atypical employment has always been an area that demonstrates the unequal situation of women in the labour market, both as a cause and as a result of their unequal opportunities. Part-time employment has always been a typically female segment of the labour market, noted for discriminatory conditions. This unfavourable treatment made part-time work the birthplace of the concept of indirect discrimination.66 The overall abusive terms of part-time and fixed-term

63 Although they are decreasing, decisions are still being made based on mere stereotypes treated as facts (the renowned case C-222/84, M Johnston v Chief Constable of the Royal Ulster Constabulary was based on the stereotype underlying the denial of access to women with regard to certain jobs). 64 See for example para 18, referring to the sensitivities of private patients, while the profession of obstetrician is strongly populated by male professionals. 65 According to the 2015–16 report of the Nursing and Midwifery Council the gender divide was: 36 per cent male, 64 per cent female (compared with 22/78 per cent in 2014–15) https://www. nmc.org.uk/globalassets/sitedocuments/annual_reports_and_accounts/equality-and-diversityreport-2015-16.pdf. 66 CJEU, C-170/84, Bilka-Kaufhaus v Weber von Hartz [1986] IRLR 317.

416  Csilla Kollonay Lehoczky employment led to directives, based on framework agreements between the social partners, prohibiting misuse and discrimination based on type of contract.67 The protection developed by the Court originally against discrimination on the ground of these ‘classic’ atypical forms (fixed-term and part-time) appeared to make the concept of indirect sex discrimination redundant.68 Such a suggestion may appear reasonable, but it needs reconsideration due to the growing combination of atypical forms (eg on-call jobs, job sharing, temporary work, inventive forms of self-employment and pay systems) that extend women’s labour market disadvantages to the new areas. These developments are accompanied by the decreasing rigour of the CJEU, whose arguments revolve around the issue of comparison. The Court seems to have growing difficulty in finding a comparator among ‘standard’ workers,69 coupled with the fact that the concept of ‘worker’ under these directives is supposed to be defined by the laws of the Member State concerned. In 1998 the CJEU found that the EU equal pay norms preclude a rule that applies, without objective justification, a less favourable standard for job sharers ‘where a much higher percentage of female workers than male workers are engaged in job-sharing’.70 Later, in Wippel v Peek & Cloppenburg71 the Court did not see a comparable situation between workers working on-call according to the needs of the employer, without any guarantee of a minimum amount of work and pay. At the same time, ‘in exchange’ (?) workers are entitled to refuse work offered by the employer. This latter element, and the fact that full-time and fixed-hour part-time workers had no opportunity to refuse work, excluded them as comparable workers according to the Court; therefore the terms of the contract were not found discriminatory. Whether refusal to work was a real ­practice proportionate to the insecurity implied in the contract or rather a ­nominal (fake) offset of it was not examined by the Court. Regarding the group disadvantages of women it should have been considered in the case that such jobs – with their imposed conditions – were designed primarily for women with family obligations72 who, because of their situation, are compelled to accept the unfavourable conditions, while most men would be in a position to reject such a contract. Today application of Article 157 TFEU in light of Article 23 CFREU might change the Court’s assessment of the case. 67 Council Directives 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC; and 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP. 68 See E Ellis and P Watson, EU Anti-Discrimination Law 2nd edn (Oxford, Oxford University Press, 2012) 31. 69 See M Bell, ‘Between Flexicurity and Fundamental Social Rights: the EU Directives on Atypical Work’ (2012) 37 EL Rev 40. 70 CJEU, 17 June 1998, C-243/95, Kathleen Hill and Ann Stapleton v The Revenue Commissioners and Department of Finance, ECR 1998 I-03739 para 44. 71 CJEU, 12 October 2004, C-313/02, Nicole Wippel Peek & Cloppenburg GmbH & Co KG. 72 And for other groups in a precarious position in the labour market, such as new entrants, ­disabled or the elderly.

Article 23  417 iii.  Self-employed, Triangular Employment Relations and Equal Pay More controversial are the forms in which employers create triangular relations and workers find themselves in such a triangle without a ‘duty holder’ responsible for equal treatment. The Lawrence and Allonby cases73 are the archetypes of such a trap-like situation, which is excluded – according to the Court – from the scope of application of Article 157 TFEU. Both cases involved women working in typical sex-segregated jobs (cleaning and catering services in Lawrence, part-time teachers with annually prolonged contracts in Allonby) and were ‘outsourced’. In Lawrence they were transferred to new contractors, in Allonby (admittedly due to the legislative equalisation of part-time and full-time payments, which would have required an increase in the salaries of part-time teachers) they were dismissed and hired back through a mandatory intermediate agency (ELS) as ‘self-employed persons’. The Court answered the long-asked question regarding the scope of Article 157(1) TFEU, acknowledging that the applicability of this provision is not limited to situations in which men and women work for the same employer.74 In Allonby it also promisingly extended the scope of the protection to the category masked as ‘self-employed’.75 ­Nonetheless, in both cases, it laconically established that the identified pay differences were not attributable ‘to a single source’ and therefore ‘no body’ was responsible for the pay inequality, meaning that such a situation does not come within the scope of Article 157(1) TFEU.76 Article 23 establishing the obligation of the State, as the ‘body’ responsible for equality – including pay equality – may change Court responses to such circumventing actions. iv.  Equality of Access to and Supply of Goods and Services77 The unlimited phrasing of Article 23 – ‘in all areas’ – may give impetus to overcoming embedded stereotypes not only with regard to gender roles, but also to ‘taboos’ regarding the untouchability of private life and business interests, both of which are fertile ground for nurturing and entrenching stereotypes disadvantaging women and also disadvantaging industrial relations. The Services Directive on equal treatment in access and supply of goods and services covers an unlimited range of goods and services, that are, as Article 3(1) says, ‘available to the public and are outside the area of private and family life’. While the exclusion of family life is clear, the vague ‘private life’ exclusion raises 73 CJEU, 17 September 2002, C-320/00, Lawrence and Others ECR I-7325; CJEU, 13 January 2004, C-256/01, Debra Allonby v Accrington & Rossendale College, Education Lecturing Services [2004] ECR I-0873. 74 Lawrence, ibid para 17; Allonby, ibid para 45. 75 Allonby, ibid 71. 76 Lawrence (n 73) para 18; Allonby, ibid para 46. 77 Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

418  Csilla Kollonay Lehoczky concerns. An even more debilitating impact is implied in Article 3(3) excluding the application of the prohibition of sex discrimination from the content of media and advertisements, as well as education. These exclusions hinder or even contravene the goal of the Services Directive to remove existing discrimination ‘outside the employment area’ that might be ‘a barrier to the full and successful integration of men and women into economic and social life’.78 The 2017 European Commission report on Equality between women and men in the EU reflects an awareness of the significance of the role of media and marketing in maintaining or confirming commercial and even sexualised images of male and female roles and the need for counter-action. Also the vital task of education in respect of the right orientation of the younger generation in respect of sex equality is not questioned.79 Positive examples of both civil activities and governmental actions show that unrestrained business interests might be fought, even within the current limits. At the same time the high level of public interest in the fundamental value enshrined in Article 23 may raise its equivalence to other public interests (eg  taxation, free competition or recently, environmental interests through its mainstreaming vehicle), successfully penetrating the sacredness of private business interests. Mainstreaming gender equality even in respect of regulation of and policy on business conduct might bring similarly slow but effective results in putting a brake on business conduct contravening the goal of equality between the sexes. v.  Parental Obligations and Other Family Matters Relevant for Gender Equality (Violence, Religion) Maternity and paternity are two roles connected to existing biological differences, but they do not exclude fathers from feeding and caring for children from the very beginning of their lives. The slow progress in removing gender-role stereotypes that impact on family and market role divisions is addressed in the Chapter of this volume on Article 33. The link between parental leave and employment gives rise to cases of violations of the gender equality directives.80 The consistent application of the equal treatment principle seemed to retreat when the Court compared genderbound roles. The Court felt that differentiation in termination payments based on career breaks for parental leave, on one hand, and for national service, on the other, was justified. The Court agreed with the ranking (no increase of payment during a break for parental leave) with regard to the interests served

78 Preamble of the Services Directive, Recital 9. 79 European Commission: ‘2017 Report on equality between women and men in the EU’ (European Union, 2017) https://eeas.europa.eu/sites/eeas/files/2017_report_equality_women_men_in_the_eu_ en.pdf, 24. 80 Formerly Directive 207/76/EEC, now the Recast Directive.

Article 23  419 (‘family’ versus ‘nation’) and excluding their comparability.81 This clearly malefocussed attitude might change under the mainstreaming obligation. In a more recent (2014) decision the Court, raising hopes of a change in view, acknowledged that the career break taken by workers ‘in order to devote themselves to bringing up their children indeed constitutes a legitimate social policy aim’.82 The coverage of family matters has particular significance. Domestic violence and sexual violence and their silent acceptance invisibly impact on public and workplace relations. The extension of the competences of the EU to justice, cooperation in police and criminal matters opened up room for action in this area to promote equality.83 The 2017 Fundamental Rights report looked at violence against women first among the four priority areas it addressed in which fundamental rights are particularly at stake.84 The report confirmed that despite the lack of a general EU instrument the Commission increasingly acknowledged the need of legal and social efforts to combat this form of discrimination. Directive 2012/29/EU on the protection of victims of crime pays particular attention to protection and help of victims of sexual violence, domestic or partnership violence, as well as to intensive awareness raising. The EU intention to ratify the Istanbul Convention on preventing and combating violence against women and domestic violence and its signature on 13 June 2017 by the EU Commissioner for Justice, Consumers and Gender Equality is further progress with the new competences under the Lisbon Treaty.85 CFREU Article 10 guarantees freedom of thought, conscience and religion, while Article 22 guarantees respect for cultural, religious and linguistic ­diversity.86 This freedom might conflict with the idea of equality of women in the case of religious groups that impose on women limitations of their fundamental freedoms or even humiliating and degrading treatment.87 Whether protection of freedom and diversity permit intervention required by protecting gender equality needs more detailed analysis. However, the answer must be framed in terms of an approach that guarantees the private autonomy and freedom of religion of families as long as it does not deprive any member of the family of autonomy and freedom.88

81 CJEU, 8 June 2004, C-220/02, ÖGB v Wirtschaftskammer Ósterreich [2004] ECR I-5907 on the calculation of time spent on leave for termination payments, para 56. 82 CJEU, 17 July 2014, C-173/13, Leone and Leone v Ministre de la Justice and others, para 58. 83 Schiek (n 11) 635. 84 EU Fundamental Rights Agency: Fundamental Rights Report 2017, p 16 (http://fra.europa.eu/ en/publication/2017/fundamental-rights-report-2017). 85 See also EU Parliament Resolution of 12 September 2017 on accession P8_TA-PROV(2017)0329. 86 See ch 13 of this volume on Art 10 with reference to Art 22 by Fleur Laronze. 87 Eg depriving of personal freedom going as far as physical assault, genital mutilation, forced marriages. 88 See for details J Gardner, ‘Private Activities and Personal Autonomy: At the Margins of Antidiscrimination Law’ in B Hepple and E Szyszczak (eds), The Limits of Law (London and New York, Mansell, 1992).

420  Csilla Kollonay Lehoczky vi.  Specific Advantages on Behalf of the Underrepresented Sex Article 23 is divided into two paragraphs; the first proclaims the equality of the sexes ‘in all areas’ and the obligation not only to promote, but to achieve this equality (‘must be guaranteed’), while the second paragraph orders that ‘the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the underrepresented sex’. This text gives the impression of establishing an exception or derogation from paragraph (1). The false message is corroborated by the text of the Explanation, declaring that the second paragraph ‘takes over in shorter form’ Article 157(4) TFEU, and, according to Article 52(2) CFREU, it ‘does not amend’ Article 157(4). The relationship of the two paragraphs and, in this context, the meaning of the second paragraph need to be analysed in light of the construction, wording and substance of the text. The two paragraphs are not numbered, which is uncommon and usually signals an underlying purpose or intention. Here, this intention shall be interpreted in light of the question raised by the content of the second paragraph, namely, whether it can be interpreted as an exception from the rule of equality or rather as a special way of achieving equality. For this reason, and also in view of the other two CFREU articles with unnumbered paragraphs89 the right interpretation suggests considering the second paragraph as a continuation or specification of the first and not as a departure or exception from it. Nor can the Appendix and its reference to Article 154(4) TFEU lead to a qualification of Article 23(2) as an exception; not only logical and structural interpretation, but even more its substantive content, which extends far beyond ‘working life’, contradicts such an understanding. Article 157(4) TFEU can be considered a narrow and obsolete provision compared with Article 23 as regards promoting equality regardless of sex. This is not only because it restricts the purpose of applicable advantages to working life, but also because it brings in the compensatory element (‘in order to … compensate for disadvantages in professional careers’)90 compared with the unrestricted wording of Article 23 on the kinds or goals of advantages.91 89 In the CFREU there are two other articles divided into unnumbered paragraphs: Art 32 on the employment of children and young persons and Art 47 on the right to an effective remedy and to a fair trial. In both articles the second or third paragraphs develop a specific issue included in the first paragraph (working conditions of young workers, procedural guarantees leading to effective remedy) and none are a departure or exception from the first paragraph. 90 Compensation as a goal of positive actions to make good earlier harms caused by discrimination is debated with regard to potential new injustices concerning past and present victims and beneficiaries. Costello (n 39) 125, in her correct criticism refers to the difficulties of justifying p ­ ositive action generated by the compensatory element in US jurisprudence. 91 For further criticism see Costello (n 39) 117 and 124–26; A Numhauser-Henning, ‘EU Equality Law – Comprehensive and Truly Transformative?’ in Mia Rönmar (ed), Labour Law. Fundamental Rights And Social Europe, Swedish Studies in European Law (Oxford, Hart Publishing, 2011) 113–36.

Article 23  421 Paragraph 2 is not a limitation on equality, but rather a call for a reasonable limitation on former – social or legal – privileges; in other words, it concerns the promotion of equal treatment and not exceptions under Article 14(2) Recast Directive. Therefore it does not fall under 51(2) CFREU. The neutral phrasing – ‘the underrepresented sex’92 – might appear artificial in light of the existing gender imbalance in all areas of life, and also the existing case law on preferential treatment of women. Commentaries on the second paragraph routinely refer to the Kalanke (C-450/93), Marschall (C-409/95), Badeck (C-158/97) and Abrahamsson (C-407/98) judgments as the case law of Article 157(4), critically analysing the mainly narrow, assimilationist approach taken by the Court.93 Alongside the main idea underlying behind Article 23 – to remove asymmetries – rather the underrepresentation of men is examined here: can men be beneficiaries under paragraph 2? This question requires a look at areas in which men are underrepresented. Evidently not only in the economic area, but in respect of all areas where power is concentrated (business, political and administrative institutions) the female sex is underrepresented. Conspicuous underrepresentation of the male sex, however, is observable in two areas: in occupations that, because of their low social or economic prestige are ‘feminised’ and thus overpopulated by women; and the family. Men are significantly underrepresented in performing child care and household tasks, including parental leave. Looking at the main areas of human society – market, family and public affairs – the division of tasks suggests that increasing the presence of men in areas where they are currently underrepresented may have a similar, or perhaps stronger impact on deconstructing traditional gender roles disadvantaging women than efforts to increase the presence of women in traditionally male jobs. The Lommers case94 is an excellent example of the different aspects of advantaging the underrepresented sex. Male civil servants were refused access to a subsidised nursery for their children, unless they needed it for emergency reasons (taking care of the children themselves). The reason for the refusal was the limited number of subsidised places and the fact that the scheme was intended to address the strong underrepresentation of women in the Ministry. The CJEU upheld this measure as complying with Article 2(4) of Directive 76/207. The decision – clearly confirming gender stereotypes95 – was questionable already on the basis of contemporary norms. Article 2(4) was about access to training and employment opportunities; the causality between the underrepresentation of women and access to subsidised nursery was not substantiated. 92 Used in primary and secondary Union law since the Amsterdam Treaty, Art 141(4). 93 See particularly the detailed argumentation by Schiek (n 11) 651–54. 94 CJEU, 19 March 2002, C-476/99, H Lommers v Minister van Landbouw, Natuurbeheer en Visserij ECR I-2891. 95 Judgment, at 22, 41.

422  Csilla Kollonay Lehoczky Today, in light of Article 23 and the progress of Community gender equality law, the Ministry’s action appears to constitute unacceptable discrimination, not just against the individual men concerned, but also and more importantly against women as a group by legitimising their status as primary child-carers. There are already signs of change in the assessment of male family roles: both in the Alvarez96 and the Maïstrellis97 cases the court – with reference to the Lommers case – found violations of the principle of equal treatment when national measures were based on traditional gender roles, and excluding men from benefits granted to women with regard to child care. D. Limitations Limitations need examination in two respects. First, limitations on exercising the given fundamental right under the conditions laid down in Article 52(1)98 of the Charter. Second, limitations deriving from the conditions and limits put on the regulatory power of the Community and the Member States by­ Article 52(2).99 Legal limitations on equality in its substantive meaning, as laid down in ­Article 23, are not foreseen under the Charter or under EU law. Either under Union law or in national laws and practices equality between the sexes is a fundamental principle. By its horizontal effect across all rights it can be considered rather as a limitation on other rights, especially freedoms (such as economic freedoms, the right to conduct a business or, for example, religious freedom) than being limited by any of the rights under or outside the Charter. Article 19 (1) TFEU outlining the Union’s regulatory power in combatting discrimination permits regulation by unanimous decision. Maintaining that this provision is not about the application of Article 23, but instead that of Article 21, the Treaty framework for the implementation of Article 23 is set up by Article 19(2). It permits the Union to take steps within the framework of the ordinary procedure, that is, by majority decision, adopted only as ‘incentive measures, excluding any harmonization’ and only subsequently to (ie conditional on?) action taken by Member States. While Article 19(2) – even if within limits – opens the way for a more dynamic interpretation of the obligation to take positive action the Recast Directive under its Article 3 on positive action, as well as various horizontal soft obligations under Title III, designate a path that potentially leads toward further soft, but efficient enforcement solutions. 96 CJEU, 30 September 2010, C-104/2009, Manuel Roca Álvarez v ETT SA. 97 CJEU, 16 July 2015, C-222/2014, Konstantinos Maïstrellis v Ypourgos Dikaiosynis. 98 See Aristea Koukiadaki in this volume, ch 6 on the Field of Application (Art 51) and Restrictions (Art 52(1)). 99 See for details Klaus Lörcher, ch 7 in this volume on the interpretation and minimal level of protection.

Article 23  423 E. Enforcement Article 23 is qualified rather as a programmatic provision than as a provision guaranteeing directly enforceable individual rights. Equal treatment regardless of sex enforceable under Article 21 constitutes the foundation but not the content of Article 23. The attainment of the goal of Article 23 – equality in its substantive sense – requires the accomplishment of deconstructing and constructing tasks on this ground. Both the deconstruction of the existing legal and social structure of the unequal relationship of the sexes and the building up of norms and practices of equality requires the systematic adoption of legislative norms and policy measures. Article 23 implies that whenever the Union takes legislative measures in any area, it must at the same time ensure that the measures take account of equality between women and men. Furthermore, the mainstreaming principle entails the obligation to take adequate action to adjust the measures equally to the female perspective as well. Contemplating ‘enforcement’ of Article 23 calls attention to the open field of promoting substantive equality through norms and practices adopted by the Member States. Reflexive regulation, as well as the Open Method of Coordination, come into view as areas in which the Union lacks legislative competences.100 These soft methods might achieve harmonisation in a way that relies on and is responsive to motivations, customs and structures.101 The Revised European Social Charter (RESC) should again be referenced here. There is a meaningful similarity of available procedures: achieving progress regarding programmatic provisions through a variety of methods without individual justiciability of the protected rights. The dynamic method of laying down States Parties’ obligations to make genuine efforts by using all available resources towards attaining the targeted goals and then, periodically assessing the efforts made and the progress achieved, and finally drawing conclusions about the results may serve as a model for efficiency under the OMC. While positive action to promote gender equality is only permitted under Article 3 of the Recast Directive, its Title III prescribes a number of obligations (setting up and operating equality bodies, mainstreaming) and particularly, taking measures to promote social dialogue with the social partners, as well as with non-governmental organisations on a number of issues highly relevant for gender equality. While these are soft obligations, obvious inactivity – when there are inequalities to correct – is supposed to give organisations the right to initiate proceedings. In this respect the collective approach of Article 23 (similar to that of the RESC) may facilitate the finding of available solutions or the 100 F Beveridge, ‘Building Against the Past: The Impact of Mainstreaming on EU Gender Law and Policy’ (2007) 32 EL Rev 202. 101 B Hepple, ‘Transformative Equality: The Role of Democratic Participation’, paper for the LLRN conference, Barcelona, 2013, p 12.

424  Csilla Kollonay Lehoczky invention of suitable ones. The extended definition of indirect discrimination under the RESC has to be recalled in this context, too. The case law of the ECSR proactively extended the concept to instances in which states fail to take positive action despite the presence of such an obligation in order to eliminate existing differences. In approaching substantive equality in this transformative, participatory way the potential of local and workplace communities, as well as civil and industrial organisations should become a strong element of enforcement. III. CONCLUSIONS

Article 23 makes a decisive step towards changing the economic/market approach and shifting toward a human rights–oriented approach to the equality of women and men. This shift has the potential to contribute to the following significant changes and open up new roads for gender equality. (1) The original narrow, employment- and profession-oriented approach characterising Union gender equality law up to recent times has to give way to a legal system promoting equality of the sexes in every respect and in all areas. Equal access and equal roles in key areas of the economy, public power and political participation may be promoted by positive actions. However, such change can – as the practice of decades shows – only improve access for individual women, even if in larger numbers, but cannot bring decisive change in the chances and status of women as a group, given the present unequal and asymmetric economic and social structure. (2) One might assume that in the minds of the drafters the potential of ­Article 23 to radically change gender relations in all areas, including family relations and family roles, even if only in the long run, is supposed to be seen as the most important change. The second paragraph of Article 23 implies the chance of altering the under- and overrepresentation of the male and female sexes not only in economic and power structures but also in certain private roles and may contribute to the elimination of the deeply embedded role-stereotypes, and the connected hierarchy. (3) The role and legal assessment of positive action as one important form of ensuring equal treatment (and thus required by Article 23) and not as an exception requires a broader perspective on the transformative value of such measures in the long run, with advantages for women and men as well. (4) The role of trade unions in the promotion of changes within their means and power (representation of women, cooperation with women’s organisations, ‘mainstreaming’ in collective bargaining, representation of women) is indispensable, not only for achieving the goals targeted by Article 23, but also for the trade unions and their future. Multiple articles, in particular

Article 23  425 Article 12 (freedom of assembly and of association), Article 27 (right to information and consultation) and Article 28 (right to collective bargaining and action) therefore have special importance in realising the intentions enshrined in Article 23. Beyond and above all legal elements the major significance of Article 23 for more justice in gender relations is that equality regardless of sex can be achieved only if the stereotypic labels applied to jobs, or to female and male workers and job applicants, such as the division between ‘wage-earners’ and ‘carers’, fade away. This cannot be achieved only by positive actions helping women to attend to both of their duties, but rather by conscious and targeted measures that increase the presence and sense of dignity of men taking up traditionally female activities, in combination with measures clearing the way for women to enter various professions, whether traditionally male or female.

426

Title IV – Solidarity

428

21 Article 27 – Worker’s Right to Information and Consultation within the Undertaking BRUNO VENEZIANI

Article 27 – Worker’s right to information and consultation within the undertaking Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in a good time in the cases and under the conditions provided for by Union Law and national laws and practices.

EXPLANATIONS The Article appears in the revised European Social Charter (Article 21) and in the Community Charter on the rights of workers (points 17 and 18). It applies under conditions laid down by Community law and by national laws. The reference to appropriate levels refers to the levels laid down by Community law or by national laws and practices, which might include the European level when Community legislation so provides. There is a considerable acquis in this field: Articles 138 and 139 of the EC Treaty and Directives 98/59/EC (collective redundancies), 77/87/EEC (transfer of undertakings) and 94/45/EC (European work councils).

I. INTRODUCTION

A.  Context and Main Content The Solidarity Title is a strong basis for enhancing the social constitution of the EU and part is represented by the full recognition of participatory democracy in its substantive and procedural meanings. The right of information and consultation can be considered a way to embed and emphasise in a specific form the idea that, jointly with Articles 21 and 22 of ESC, the role of collective autonomy as

430  Bruno Veneziani a procedure of (co)regulation at EU level contributes ‘to democratize the life of the European Union’.1 The main content of Article 27 deals with one of the historical aspirations of workers to be part of the project of industrial democracy. In other words, the provision is about their involvement in the undertaking to control and to condition the managerial prerogative. It is indebted to the expression of participatory democracy embracing, as it does in ILO sources, a large series of involvement models, whose goal and technique represent a legal way to protect the interests of workers affected by a decision of an employer. It is a politically sensitive problem in the sense that, as affirmed by O Kahn-Freund, all trade union law institutions deal with the placement and shift of social powers inside and outside the enterprises.2 This analysis is supported by the changes in formulation and wording of Article 27 during the Travaux Préparatoires. This evolution indicates that the political and ideological roots of this institution of labour law offers to the interpreter a wide range of problematic aspects dealing with the legal qualification of –– guarantee (freedom, rights, principle), –– identity of addressees (individual, group, unions)strength of the model (weak involvement/institutionalised participation), –– material scope (wide/limited range of matters), –– methods to perform mutual obligations as regards matter or time (secrecy / confidentiality – good time). The theme of the democracy in the enterprise is highlighted in numerous constitutions throughout divergent formulations in national constitutions of EU Member States: Articles 46 of the Italian constitution (right to collaborate with the management), the Preamble of the French Constitution 1946 (right to participate to a definition of collective working condition and management of enterprise), Article 56 of the Portuguese constitution 1976–2007 which also refers explicitly to information, Article 19 of the Dutch Constitution 2008 (codetermination); Article 23 of the Belgium Constitution (right to information and consultation) and Article 75 of the Slovenian Constitution (participation in the management).

1 T-135/96 UEAPME v Council and Commission (1998) ECR II-2335, (89). The Solidarity value ‘because of its importance opens the Title of Charter’ according to Italian Court of Cassazione 30-92015 n.19457, Poste Italiane SPA v GCF José Luis Monereo Pérez, ‘Article 27’ in Cristina Monereo Atienza and José Luis Monero Pérez, Las Europa de los derechos. Estudio sistematico de la carta de los derechos fundamentales de la Union Europea (Granada, Editorial Comares, 2012) 608. 2 Otto Kahn-Freund, Labour and the Law (London, Stevens § Sons, 1972) 1 ff; Lord Wedderburn, ‘Consultation and Collective Bargaining in Europe: Success or Ideology?’ (1997) Industrial Law Journal 1.

Article 27  431 The ambiguity of these formulations and the variety of models explain why the EU legislator adopted a more cautious attitude in drawing a workers’ involvement model, which rationale inevitably tends to legitimate a social power which in itself represents countervailing powers to the managerial prerogative and to the right of property. Information and consultation are an immediate counterweight to the freedom to conduct a business. A strict juridical analysis of these articles cannot ignore the distribution made by the legislator of qualities of legal entitlements: the ‘right’ to information and consultation is ‘guaranteed’ as expression of the value of Solidarity (Title IV including Article 27) and the ‘freedom to conduct a business’ is simply ‘recognized’ as expression of the value of Freedom (Title III including Article 16).3 Furthermore, information and consultation belong to a long tradition of interventions, made by the Community/Union law still actual to interpret the vague expression which describes the powers bestowed to the workers engaged into undertakings or establishments. The catalogue indicated in Explanations ignores the relevant changes introduced by the Lisbon reform of the Treaty, namely Article 152 TFEU. B.  Relationship to Other Provisions Article 27 is the meaningful ‘incipit’ of the Solidarity Title where all dowels composing the mosaic of collective autonomy are collected. Its heading refers to information and consultation strongly protected by a specific ‘constitutional right’ as the strongest juridical guarantee. The wordings of the Solidarity assume a variety of semantic expressions dealing with the quartet of collective autonomy: the right to industrial democracy, the right of collective bargaining and the right to collective action and the right to freedom of association and assembly. In the general context of the Charter, Articles 12, 27 and 28 compose the category of collective autonomy whose main feature is to include a legal paradigm of an individual right to be exercised in a collective form by a group. The troublesome history of this rule shows the clear-cut quality of the guarantee as a Janus’s face, namely if one considers the question whether the employer’s obligation to inform and consult is attributed either to the workers directly or to the workers’ representatives. The possible use of the right of information and consultation also by the single worker can be relevant not only in very small companies or establishments (lacking representatives) but also in cases where purely individual interests like personal data (Article 8) health, safety (Articles 31–32), employment (Article 30) and dignity are at stake.4 3 Comment to Art 16, ch 17, in this book. 4 Recital No 16 Directive of 2002/14/EC establishing a general framework for informing and consulting employees in the EC-Joint Declaration of EU Parliament the Council and the ­Commission

432  Bruno Veneziani The CFREU Title IV refers to Solidarity, which is a value inspiring in general collective labour rights. In this perspective it is quite clear that from the text and the ratio of Directive 98/59 the right to information and consultation is intended for worker’s representatives ‘and not for workers individually’. The CJEU’s reasoning is based on the collective nature of the right of information and consultation and it is linked not only to the lexical but also to a teleological interpretation of EU law. Both legal sources – Directive 98/59 and today Article 27 – permit the trade unions to play an active part in formulation of constructive proposal, to mitigate the consequences of the managerial prerogative and the possible intervention of the Public Authority.5 C.  Relationship to Other Relevant Instruments i.  EU Instruments The Union acquis has developed in such a direction as not to give any doubts about the substance of the guarantee.6 All labour law directives have anticipated the solution offered by Article 27 which has summed up previous legal texts. The consequence is that all the national laws should be consistent with the EU Directive ‘in so far as those directives refers to national law and practices’.7 In the general context of the EU legal order Article 152 TFEU does not refer specifically to the industrial democracy ideal-type but it establishes a general principle of the EU industrial relations system. Article 152 can be considered an archetype of ‘promoting legislation’ in favour of the role of social partners which gives them the right to be ‘recognised and promoted’ at EU level. It can be categorised as a general principle of the Treaty legal order, where a recognition of the presence of the social parties must represent a legal obligation – for EU all bodies, agencies and institutions – obliging them ‘to facilitate dialogue’ and to support their role at its level. The same article is also functional to the ‘dialogue between management and labour’ envisaged as social objectives together with the ‘promotion of employment, improving proper living and working conditions, proper social protection’ (Article 151(1) TFEU). Furthermore, the Union shall take into on employee representation 8200) OJ L80/29-34. Practical experience has shown that also in this case could be involved the more general interests of a group of employees. In fact the Directive ‘is without prejudice to those systems which provide for direct involvement of employees, as long as they are always free to exercise the right to be informed and consulted through their representatives’ B Bercusson (ed), European Labour Law (Baden-Baden, Nomos, 2006) 285. 5 If it envisaged by the national law as Case C-12/08 Mono Car Styling SA v Dervis Odemis (2009) ECR I 6653 para 40. 6 Bercusson (n 4) 280. 7 Steve Peers, Tamara Hervey, Jeff Kerner and Angela Ward (eds), The EU Charter of F ­ undamental Rights (Oxford, Hart Publishing, 2014) 750.

Article 27  433 account a ‘high level’ of employment, ‘adequate social protection’ and ‘protection of human health’ in defining and implementing its policy and activities (Article 9 TFEU). The protection of workers from entrepreneurial decisions affecting their legal conditions has been regulated by the European legislator through a progressive secondary legislation in the late 1970s. Five trends can be discerned throughout the evolution of this legislation. The first trend is marked by economic recession, where purely economic events have affected European markets like national restructuring operations such as transfer of undertakings or parts of undertakings.8 Subsequent laws deal, on one side, with concentrations between undertaking and mergers (still based on Article 100 TEC now Article 115 TFEU)- aimed to find a legal instrument to control all economic operations which may be tolerated from the point of view of competition9 – and, on the other side, with collective redundancies.10 The second deals with the taking into consideration of the specific dimension of Union-scale companies as the Societas Europea and the European cooperative society.11 The third trend is a reaction in terms of industrial democracy to the transformation of the employer’s identity.12 The fourth deals with an attention to issues like minimum requirement for safety and health at the workplace, atypical work and equal treatment.13 The fifth deals with the adoption of a general perspective for how to manage the model of democracy in the undertakings.14 8 Directive 77/187 EEC, based on Art 100 TEC, now Art 115 TFEU, renewed 2001/23 EC. 9 Recital 7 Regulation (EEC) no 4064/89 on the control of concentrations between undertakings now based on Arts 103 and 352 TFEU, renewed in 2004 by Regulation (EC) No 139/2004 (the Merger Regulation), now based on Arts 103 and 352 TFEU supplemented by Directive 2005/56/EC on crossborder mergers of limited liability companies based on Art 50 TFEU and recently incorporated into Directive (EU) 2017/1132 relating certain aspects of company law OJ L169 30.6.2017, 46–127. 10 Directive 98/59/EC of 20 July 1998 on the approximation of the law of the Member States relating to collective redundancies based on Art 115 TFEU OJ L225/16-21. 11 Regulation (EC) No 2157/2001 on the Statute for a European company (SE) OJ L294 10.11.2001, 1–21. Directive 2003/72/EC supplementing the statute for European cooperative society with regard to the involvement of employees (SCE) OJ L 207 18.8.2003, 15–36. 12 Council Directive 94/45/EC on the Establishment of European Works Council or a procedure in Community-scale undertakings and Community-scale group of undertakings for the purposes of informing and consulting employees based on the Agreement on Social Policy annexed to P ­ rotocol 14 to the Treaty establishing the EC (Art 2(2) OJ L 254 30/9/94, 0064–0072 and revised by the Directive 2009/38 (Recast) (based on Art 153 TFEU) OJ L122/28 16.5.2009, 28–43. 13 Arts 10 and 11 Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work OJ L183 29.6.1989, 1–8 and Arts 7 and 8 Directive 1989/654/EEC concerning the minimum safety and health requirement for the workplace OJ L393 30.12. 1989, 1–12: both directives are based on Art 153 TFEU; Art 8 EU Parliament and Council Directive 2087/104 19 November 2008 on temporary agency work OJ L327/9 5.12.2008, 9–14 and Art 21(4) Directive EU Parliament and Council 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and ­occupation (recast) OJ L204/23 26 July 2006, 23–36. 14 Directive 2002/14/EC establishing a general framework for informing and consulting employees in EC (based on Art 153 TFEU) 2002 OJ L 80/29-34.

434  Bruno Veneziani The itinerary of the intervention has taken into account, from one side, the internationalisation and globalisation of the financial markets and, from  the other side, the fact that the terms and conditions of employment require the highest degree of legal protection. The policies of the Union must take into account the need to balance economic and social development. The EU Charter can be a source of inspiration able to embed a model of industrial management at the level of undertaking and the right antidote to strengthen dialogue and promote mutual trust between workers and employers. It is a catalyst for workers’ influence upon the consequences of decisions affecting restructuration and modification of the production process. The need of transparency of the employers’ initiative grants to the workers a model of control on the initiative of employers with the duty to information and consultation envisaged in the Directive 2002/14 and mirrored in Article 27 of the Charter. The Community Charter enshrines also a type of involvement, covering information, consultation and participation, and takes into account all different models of industrial democracy spread all over Europe. In other words, it differentiates between institutionalised participation and a weak model of intervention in the undertaking. Points 17 and 18 do not identify the entitlement of the prerogatives concerned, as opposed to the freedom of association and of collective bargaining, which are being construed as rights (Points 11 and 12). Point 17 defines among the actors: only the workers the level where the participatory model must be ‘specially implemented’ (companies or group of companies in two or more member states how that model should be developed (‘along appropriate line’). Point 18 states how it must be implemented (‘in due time’) and in which cases (technological changes which have major implication on working conditions and organisation for the work-force, restructuring operations or mergers having an impact on the employment of workers, collective redundancy procedure, transfrontier workers). ii.  Council of Europe Instruments The necessity to make effective the exercise of these rights stems from the fact that they must be used vis à vis the owner of the enterprise. The ESC accentuates the quality and intensity of information and consultation. The right to information and consultation is being qualified as an

Article 27  435 autonomous and general right to be effectively achieved.15 Maintenance and further realisation of the right is ‘essential’ (i) to safeguard and ‘realize’ the ideals and principles that are the common heritage of all members of the Council of Europe and (ii) to facilitate their economic and social progress.16 Articles 21, 22 and 29 have the same rationale in the perspective to ensure the protection – the ‘effectiveness’ – of the participatory democracy and they are newly included in Part II of RESC (1996) based on Additional l Protocol of 1988. The Charter has deliberately chosen the philosophy to qualify the double nature of the democracy model: the involvement of workers in the undertaking as an individual human right; and the collective nature of its exercise, which is being entrusted to workers or their representatives. iii.  ILO Instruments The following instruments are relevant: ILO Convention 135 concerning the protection and facilities to be afforded to worker’s representatives in the undertaking, 1971. ILO Recommendation concerning Cooperation at the level of undertaking No. 94, 1952 (Article 1). ILO Recommendation concerning Communication within undertaking no 129,1967 (Article 2). The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) emphasises how close at the level of undertaking are the relationships between freedom of association, right to organise and ‘free and frank consultation procedure with the principle of autonomy of the parties’.17 II. CONTENT

A.  General Observations i. Introduction The elaboration of the text in the Convention process and its continuous amendments in the attempt to give substance to this ideal-type of industrial democracy reveals how sensitive the topic is: the reference to ‘Union law and national laws and practices’ was inserted and the subjective scope ‘Workers or their representative’ was included instead of workers and their representatives. All the

15 Additional protocol of 1988. 16 Preamble, 1. 17 ILO General Survey on the fundamental Convention concerning rights at work in light of the ILO declaration on social justice for a fair globalization, 2008, 101 session 2012, report III (1B) (Geneva ILO, 2012), 98.

436  Bruno Veneziani features of the model of information and consultation have been r­epeatedly renewed and changed: the nature of the guarantee (‘the rights of’) was replaced by the expression ‘must be guaranteed’;18 also were specified timing, principle of effectiveness, matters and productive units (‘matters which concern … the undertaking’), the identity of the right-holders and re-introduced was the wording to the ‘appropriate levels’,19 the cases and conditions (‘provided for Community law and national law and practices’), the intensity of the model (information and consultation/real participation).20 ii.  Material Scope a.  Public Sector The Civil Service Tribunal of the European Union (CST) declares that in the specific case of the EU public sector the rule on conditions of employment imposes the obligation on the administration to consult the Staff Committee before adopting any act of general application concerning their employment relation even though the consultation duty ‘only amount to a right of staff committee “to be heard”’.21 The quality of model – ‘a modest form of participation’ as defined by the CST (paragraph 23) – can be reinforced by the importance of its objectives, which is to make effective ‘the principle of sound ­administration’.22 By virtue of this principle, the administration must ‘comply fully with that obligation whenever consultation of the Staff committee is liable to have an influence on the substance of the measure to be adopted’.23 The same methodology of enhancing a right in the light of its social objectives has been used in the case of undertakings concentration.24 The law expressly provides that the recognised workers’ representatives of the undertaking concerned by the transfer or concentration ‘are entitled to be heard in the same way other natural or legal person showing a sufficient legitimate interest’ as they are exposed to risk of a loss their employment.25

18 CONVENT 45, 4422/00 of 28 July 2000. 19 Convent 47, 4470/1/00 REV Add 1, 25.9.200 2000. 20 T Blanke, ‘Worker’s right to information and consultation within the undertaking (Article 27)’ in Brian Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Nomos, Baden Baden, 2006) 255 ff. 21 F-26/2012 Cerafogli v European Central Bank ECLI:EU:F:2014:218, para 24; on the applicability to the EU institutions in their relations with their staff T-456/14 TAO-AFI and SFIE-PE v EU Parliament and EU Council ECLI:EU:T:2016:493§ 70. 22 ibid. Exchange of views and formulation of opinions to influence employer’s decision according to T-713/14 IPSO v ECB ECLI:EU:T:2016:727 §§117–122. 23 ibid; T-129/14 P Andres and Others v ECB ECLI:EU:F:2013:194, §191. 24 T-96/92 Comité central d’entreprise de la Société Générale des Grandes Sources and others v Commission of the EC, ECR 1992 Page II-02579, §§33–34. 25 Regulation no 4064/89 §§ 13, 14.

Article 27  437 b.  Seagoing Vessels A special category of workers is excluded from the scope of application of any kind of involvement for very inexplicable reasons. The expression used by the international legal sources are quite radical, although the need for legal support is required by a not negotiable value as it is health and safety at work. The ILO allows Member States, after consultation with the representative organisations of employers and workers, ‘to exclude from its application, in part or in whole, particular branches of economic activity, such as maritime shipping or fishing, in respect of which special problems of substantial nature arise’.26 The reason raised by the Member States to justify this exclusion were similar to those regarding the Directive 94/45 EC EWC whose applicability is limited to crews of fishing vessels but ‘not to merchant navy crews’.27 The reason is the difficulty in applying information and consultation procedures on board ships operating far away from an undertaking’s seat and the fact that seafarers’ contracts are frequently short-term.28 The formulation is more cautious and in some way respects the social partners’ autonomy and their consultative role into the undertaking. At international level it is an exception given to the fact that neither ESC nor its Additional Protocol, nor both Community Charter and Article 27 Charter, provide for the same exclusion. A different path has been followed by the EU legislator. The collective redundancy procedure (Article 1(2)(c)) and transfer of undertaking (Article 1(3)) contain the exclusion of ‘the crews of seagoing vessels’ from their scope. The Framework directive allows Member States to derogate from the directive prescription ‘through particular provisions applicable to the crews of vessels plying the high seas; (Article 3(3). The harshness of the radical exclusion is mitigated by the spirit of subsidiarity inspiring the legislator as far as each Member State can make a less stringent regulation enlarging the scope of the protection. So the final version of the Recast Directive makes a distinction in the sense that it applies to crews of fishing vessels but affirms that Member States ‘may provide that the this directive shall not apply to the merchant navy crews’ (Recital 7) but does not refer to the involvement of collective autonomy or horizontal subsidiarity. The exclusion is still astonishing because most maritime categories of workers in the shipping and fishery sectors have grown in number rapidly and are operating in a highly globalised context which has eroded the effectiveness of international standards. The reason of exclusion is based on the idea that these crews work at great distance from one to another and from management and this condition makes it 26 ILO Convention 1981 (No 155) on occupational safety and health Art 1(2). 27 Art 1(5). 28 Communication from the Commission to EPC, EESC and C of Regions, COM/2007/0591 final (§3 of Introduction).

438  Bruno Veneziani difficult to bring workers together at consultation. The option must be re-­examined as some factors like a highly internationalised workforce needs transnational information and consultation procedures, the majority of Members States make no use of this option and the provisions of Directive are flexible. The new international standards have pushed the EU Council to adopt a Decision on 7 July 2007 authorising Member States to ratify two ILO Conventions. Both Conventions declare consultation as a general principle to manage all the aspect of the labour protection.29 The Convention 2006 states in Article 7 that ‘any derogation, exemption or other flexible application of this convention for which the Convention requires consultation with ship-owners and seafarer organizations may, in case the representatives organizations of ship-owners or of seafarers organizations do not exist within a Member, only be decided by that Member through consultation with the Committee referred to Article XIII’.

The Tripartite committee is composed – at the level of ILO Governing body – with the duty ‘to keep the working’ of this Convention ‘under continuous review’ and established with special competence in the area of maritime labour standards. The EU Commission concludes by affirming its exploratory mission committing itself to improve the community legal fragmented framework in the maritime sectors because the exclusion of them ‘might not be entirely justified in so far as they do not appear to contribute to the specific solutions, more adapted to the concrete situation of such workers’.30 c. ‘Tendenzschutz’ and Confidentiality The Tendenzschutz argument is another paradox in the applicability of Article 27 as a source of fundamental human rights. Neither the ESC nor the CFREU resolve the problem and ask the Member States to intervene freely. The Appendix to ESC 1996 provides that religious communities and other institutions may be exempted from observance of the obligation to inform and consult workers. According to the Additional protocol of the ESC the exclusion has to be ‘to such extent as is necessary to protect orientation of undertakings’ (Appendix to Protocol 1988, Article 68). The EU Directives SE and EWC Recast contain specific rules dealing with the protection of the duty to reservation and confidentiality. These rules deal with a) the definition of confidential information whose nature is such as to seriously harm the functioning of the company (Article 8 (1)) b) with the case of the company pursuing directly and essentially the aim of ideological guidance (Article 8 (3))c) where the 29 Maritime Labour Convention adopted by International labour conference in 2006 and by amendments approved in 2014 and ILO Work in Fishing Convention 2007 (no 188). 30 §7 of Communication Conclusions.

Article 27  439 ­ bligation shall continue to apply ‘after the expiry of the (worker’s) term of o office’ (Article 8 (1)). The secrecy, confidentiality and ideological guidance are categories aimed to restrict heavily the essential content of the participatory democracy envisaged in Article 27 whose rights are limited by the power of the employer to decide which are a) the matters covered by secrecy and confidentiality, b) all arguments harming the functioning of the business and c) the reactions he can take in the case of violation of obligation after the termination of the employment relationship. The main question is that all restrictions, as far as they survive in the future in the law, must meet a minimal text of reasonability and proportionality (Article 52 TFEU) taking into account the respect of the principle of non-discrimination and the evolution of Tendenzbetrieb of religious community which, although in different ways, takes part in a commercial business (restaurants, hospitals, hotel and schools) directed by religious management and frequently exempted totally or partially from fiscal public burdens. B.  Field of Application According to the Explanations, there is ‘a considerable acquis in this field: Articles 138 and 139 of the EC Treaty [now Articles 154 and 155 TFEU] and Directives 98/59/EC (collective redundancies), 77/87/EEC (transfer of undertakings) and 94/45/EC (European work councils).’ These Directives can directly be considered as being included in the field of application according to Article 51(1). But this list is obviously not exhaustive. An important number of further Directives refers to information and consultation rights in different contexts (see above section I.C.i). This means that the field of application is increasing by each new reference to information and consultation (and possibly even participation) rights. C.  Specific Rights i. Introduction The worker’s involvement according to Article 27 does not commit the EU legislator to a specific more institutionalised ideal-type. The EU Commission has proposed a comprehensive method of analysis consisting in the ‘consolidation of the various provisions on worker’s ‘information and consultation’. So, the structure of EU framework can be read in the light of different levels of quality of the rights concerned. In the case of transfer of undertaking information was in se an autonomous right of workers’ representatives and consultation was important for ‘seeking an agreement’. A more up-to-date model of industrial democracy was provided by

440  Bruno Veneziani Directive 98/59/EC on collective redundancies and by Directive 89/391/EEC on health and safety at work. In these directives, information and consultation are accurately described in detail (content, use) and both aimed eventually at reaching a collective agreement. In the case of EWC information and consultation are available to workers’ representatives at that level in Community-scale undertakings and groups and in the text of the Recast EWC Directive a different type of industrial democracy is represented, whose aim is to promote more efficient and effective dialogue through information consultation and institutional participation. A full model of industrial democracy and the recognition of a general right to information and consultation at plant level is proposed in Framework Directive 2002/14/EC. ii.  The Content and the Functions The employer obligation consists of two functions, id est ‘to inform and to consult’ workers, which are related to their corresponding rights. It is a unilateral obligation and at same time is a limit to the freedom to conduct business (Article 16) as specified in the directives dealing with the protection of worker during the evolution of the employment relationship (health, dismissals). The model embraces – as it does in ILO sources – a large series of involvement schemes whose goals and techniques are the legal way to prevent the conflict at level of undertaking ‘with joint cooperative efforts and mutual understanding’. The latter are ‘not within the scope of collective bargaining machinery or not normally dealt with by other machinery concerned with determination of terms and condition of employment’.31 The term ‘involvement’ (French implication, Italian coinvolgimento) means ‘any mechanism including information and consultation and participation through which employees’ representatives may exercise an influence on decisions to be taken within the company’ (Article 2 h Directive 2001/86/CE and reproduced in Directive 2003/72/CE). Article 27 is mainly imbued with this prevention strategy favourable to ‘dissemination and change of information as complete and objective as possible on various aspect of the life of undertaking and the workers social condition’.32 The model of ‘balanced participation’ pops up in Health and Safety instruments at the level of the EU and the Council of Europe. It involves the responsibility of both actors of employment relations in implementing all measures dealing with the planning and introduction of new technologies. These matters require not simply information but consultation with workers and/or

31 ILO Co-operation at level of the undertaking Recommendation No 94, 1967 (art 1). 32 ILO, General Survey on fundamental conventions concerning rights at work in light of the ILO Declaration on social justice for a fair globalization, 2008, 101st session 2012, Report III (1 B), Geneva, ILO 2012, 98.

Article 27  441 representatives on the effect on safety and health connected to the choice of reorganisation of workers’ conditions and their impact on the work environment.33 The word balanced participation is accurately described and echoes the term used in Article 22 ESC. The ECSR has focused the control on national legislation underlying that its conformity with Article 22 requires a wide scope and should concern measures relating not only to working conditions but should, also, extend to a wider area (moral and sexual violence, ergonomics, occupational hygiene, working environment).34 The principle of transparency is the rationale of all models of workers’ involvement and it is a necessary prologue to the further and logical step of collective bargaining itinerary. The culture of transparency has been stressed in general by the Treaties and has become an element of the culture of the EU legal system.35 Articles 27 and 28 Charter share the same ideological roots and the same value of solidarity. However some differences need to be stressed. The right to negotiate and conclude is envisaged in Article 28 which has a different function. It suggests a conflict resolved through a collective agreement, which according to national traditions has an obligatory part (peace treaty) and normative one (term and conditions of the contract of employment). Furthermore, the right-holders are different. In Article 28 the right to negotiate is held by the representatives. The expression used is ‘respective organisation of employers and workers’ (emphasis added). The linkage between both articles is functional as to give substance and shape to the collective autonomy. It is not the case that the ECtHR has so deepened the analysis of Article 11 ECHR to extract from a meagre provision all the corollaries of the collective autonomy. According to the ECtHR collective bargaining might be the way by which trade unions could be enabled to protect their member’s interests. So in the attempt to achieve such specific protection the Court has made progressive steps to find the essential element of trade union freedom. First of all, the ‘right to be heard’ has been identified, which was only the minimum component of Article 11, and then rephrased as the right ‘to persuade the employer to listen to what it had to say on behalf of its member’.36 The right of Article 27 can expand its protective mission to information and consultation on some sensible issues where no negotiable values are at stake. In this respect, the following issues can be mentioned: privacy and communication (Article 7), personal data (Article 8), unjustified dismissals (Article 30), and fair and just conditions, in particular health and safety (Article 31). 33 Art 6c Directive 89/391/EEC and the term balanced participation is in Art 2(2) of the same Directive. 34 Niklas Bruun, ‘Article 22’ in Niklas Bruun, Klaus Lörcher, Isabel Schömann and Stefan ­Clauwaert (eds), The European Social Charter and employment relation (Oxford, Hart Publishing, 2017) 407. 35 Art 11 (1)(2)(3) TEU and Arts 15 and 17 TFEU. 36 ECtHR (GC) 12 November 2008, No 34503/97, Demir and Baykara v Turkey, 141–43 and 2 July 2002, Wilson National Union of Journalists and Others v UK App no 15573/89 42.

442  Bruno Veneziani As in the case of health and safety protection against the risks occurring at the workplace the EU enhances the model of participatory democracy aiming to harmonise the national systems with measures of prevention. Thus, Article 19 of the Community charter information consultation guarantees the aspect of prevention and transparency. The same article includes also the new formula of ‘balanced participation’ to implement all measures ‘to eliminate and reduce’ the risks. The same model is envisaged in the Directive 89/391/EEC including also the obligation of the employers to training of workers and their representatives for those purposes (Article 1 and Article 6(1)). a.  The Holders of the Right All indicated texts refer to workers and/or their representatives in conformity to the idea that it is an individual right which can be exercised when and if the individual workers belong to a group or collective entity. This is the historical meaning of solidarity, a value which describes the internal link among the member of a group. The subject of the information and consultation is ‘fundamentally the global or collective situation of workers’.37 This is the case of some national legislation where the partial harmonisation of the EU law has been read as conferring, in the event of collective dismissals, an individual right to single workers to challenge, although rather limited in regards to some requirements. Thus, the complaints raised by single workers are limited or their right of action is subject to the conditions that the worker’s representatives should first have raised the objection and the worker concerned has informed the employer in advance of his intention to challenge compliance with the information and consultation procedure. This kind of model is based on the chance to defend individual rights involved in a specific affair. Individual entitlement of rights and collective exercise of the procedure go hand in hand. The judgment in the Mono Car Styling case38 is based on the assumption that the individual rights could deprive the provisions of Directive 98/59/EC of their effectiveness. The assumption of the judgment of the CJEU stems from the interpretation of the Directive 98/59/EC in the sense that collective redundancy is a problem concerning a ‘group’ and as such is an issue for workers’ representatives. It must be afforded using first of all the participatory democracy in the form of information and consultation. That is the legal tool which covers ways and means of avoiding, reducing and mitigating the consequences of the employer’s d ­ ecision.39 All Directives emphasise the collective dimension of the nature of rights and, consequently, of the procedural mechanism to protect that guarantee, and disregard the fundamental nature of these rights.40 The choice of the legislator – says

37 F

Dorssemont, ‘Article 27’ in Peers et al (n 7) 756. Car Styling (n 5) §44. 39 Art 2 Directive 98/59/EC. 40 Dorssemont (n 37) 757. 38 Mono

Article 27  443 the CJEU – reveals the rationale of its strategy of ‘partial harmonisation’ ensuring comparable protection for worker’s rights, through a harmonisation of the costs ‘which such protective rules entail for EU undertakings’.41 The tension between the individual right to information and consultation and the right to exercise it as collective prerogative appears also in the case of the inexistence of any kind of representation in the establishment and undertakings. It seems in fact that in the event of transfer of undertaking the law42 provides for a right to be informed directly ‘for the employees’ if there are no representatives ‘in undertakings or business through no fault of their own’. The idea that enjoyment of the right to inform and its judicial protection converge into the same person, without any collective protection, can reveal its inner nature of human right. Furthermore, it is true that the rationale of the Framework directive entrusts social partners, at appropriate level, to implement social objectives. However, Directive 2002/14/EC does not discharge the national State from the obligation to fully protect all workers ‘even though they are not union members’.43 b.  The Actors of Participatory Democracy The golden formula used in Article 27 ‘workers or their representatives’ has been inspired by Articles 21 and 22 RESC. The different wording used in the title ‘workers’ right’ seems to refer to the situation of an absence of any kind of representation. The necessity to establish the system of communication is inspired by the idea of independent collective autonomy enshrined in the two principles indicated in the ILO Convention 1971.44 The procedural democracy consists of the workers’ freedom to elect representatives in the undertaking, in accordance with the provisions of national law or regulations or of collective agreement (Article 5) and of the freedom of trade unions or their members to designate or elect representatives (Article 3). Freedom of association expressed by the pluralism of different kinds of representatives must ensure that the ­coexistence ‘of elected representatives is not used to undermine the position of trade unions concerned or their representatives and to encourage cooperation’ (Article 5). The wording of the Article 27 is supported also by the European Committee of Social Rights (ECSR) which considers that in some cases works councils’ responsibility of information and consultation is exercised only if there are no trade unions functioning in the enterprise and the issues are not the subject of a collective agreement. The Committee considers that if trade unions have a

41 Case C-80/14 B.Wilson v WW Realisation 1 Ltd, Austin, Secretary of State, ECLI:EU:C:2015:291, § 62; C-383/92 Commission v UK, EU:C:1994:234, § 6; C 55/02 Commission v Portugal, EU:C:2004:605, §48; C-385 /05 CGIL and Others, ECLI:EU:C:2007:37, §43. 42 Art 7(6) Directive 2001/23/EC on transfer of undertaking. 43 C-405/08 Ingenieorforeninen i Ddanmark v Dansk Arbejdsgiverforening, ECLI:EU:C:2010:69, §40; C-306/07 Andersen v Kommunernes Landsforening (2008) ECR I-0000, §34). 44 Workers’ Representatives Convention 1971 (No 135).

444  Bruno Veneziani monopoly on representing workers in activating or managing participatory democracy, the undertaking suffers from the dangerous and paradoxical situation in which the majority of non-unionised employees would be deprived of the right to be informed and consulted, while the right would be granted to a trade union representing only a minority of employees. In this circumstance the national system would not be in conformity with the principle of effectiveness of the ESC.45 c.  The Identity of Levels and Actors The issues of the effectiveness of protection depends also on the requirement concerning the quality of the contract of employment, the undertaking’s size and the definition of the establishment. Neither the Community Charter nor Article 27 seems to take the size and dimension of undertaking as relevant elements for the determination of the material scope for the application of the rights. Some warning comes from the TFEU as regards directives which ‘shall avoid imposing administrative financial and legal constraint in a way which would hold back the creation and development of small and medium-sized undertakings’ (Article 153 (2 b)). It is a contradiction to affirm the fundamental nature of right and, at same time, limit its effectiveness according to some requirements referred to the rightholder. In the case of collective redundancies the directive envisages relevant exclusions from the protection as regard the kinds of the contracts, categories of workers (seagoing vessels) and the material scope of application. The issue of a national threshold has led the CJEU to define the words and categories according to its own semantics in the search of an autonomous meaning. The term ‘establishment’ is not clarified in Directive 98/59/EC and cannot be defined by reference to the national law.46 Any possible meaning must be derived ‘autonomously and uniformly’ from the EU legal order.47 1.  The Undertaking and Establishment More recently the CJEU has gone in depth in the analysis to protect the fundamental rights enlarging the notion of the ‘productive unity’, in a way closer to the definition of structural features of the establishment.48 The consequence is that any national legislation that introduces the undertaking and not the establishment as the sole reference unit has used a criterion

45 B Veneziani, ‘Article 21’ in N Bruun, K Lörcher, I Schomann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) 392. 46 C-499/93 Rockfon A/S v Specialarbejderforbundet I Danmark, EU:C:1995:420, §25. 47 C-270/05 Atinaiki Chartopoiia AE v L Panagiotidis and Others, EU:C:2007:101, §23. 48 Rockfon, § 31 and C- 186/3 Botzen and Others v Rotterdamsche Droogdok Maatschappij BV, EU:C:1985:58 §15; C- 80/14 Union shop, distributive and allied workers (USDAW) and Wilson v WWW Realisatuon 1 lTd and others, ECLI:EU:E:2015:291, §§45–47.

Article 27  445 whose effect is to preclude the information and consultation procedure in the case of collective redundancy.49 The Court thus has defined a term of establishment as tightly as possible with the aim to produce a worker-protective result. The Rockfon ideology is that the narrower the definition of establishment, the easier for an employment to compartmentalise its workforce and ‘spread’ the redundancies in small unities to avoid triggering the relevant burden of participatory democracy.50 An important point is the identity of relevant employer where the redundancy decision is taken. This is especially relevant in case such a decision is induced by the central management of a group which is distinct from the local management of the undertaking immediately concerned. The Court has adopted a pragmatic solution stating that the obligation to consult, inform and notify is imposed on the employer as ‘a natural or legal person who stands in an employment relationship with the worker who may be redundant’.51 The solution is suggested by the idea that, in the case of group-companies, the obligation to inform and consult is not on the undertaking controlling the employer, even if it can take the decision binding on the latter, ‘because it does not have the status of effective employer’.52 The ratio decidendi is the necessity that all the procedures are marked by transparency. The research of the true identity of the actors involved in the legal responsibility is at the heart of the decision. The general rule is that in a complex company it is ‘always for the subsidiary, as employer whose workers may be affected by redundancy, to undertake consultation’.53 The principle of the effective centre of decision and the specific worker made redundant feed the guiding strategy in the case when the central management is situated outside the territory of the Member States. So the responsibility is assumed by either the representative agent of central management in one of the Member States or, in its absence, by the central management of establishment or group undertakings employing the greatest number of employees in the Member State, that is, ‘by the deemed central management’.54 The same problem of the identification of effective power of decision has been emphasised in the case of concentration between the undertakings, strongly increased in the era of market globalisation. It has potential risks to undermine social rights in both the private and public sector. In the public sector calculation of the turnover of an undertaking concerned in a concentration needs, therefore,

49 C-392/13 Andrés Rabal Canas v Nexea Gestion Documental SA,Fondo de Garantia Salarial, ECLI:EU:C:2015:318 §55. 50 ILO, Collective dismissals – Report on A Comparative and Contextual Analysis of the Law on Collective Redundancies in 13 EU Countries, Final Version (Geneva, BIT, 2014) 36. 51 C-44/08 Akavan Erityisaloyen Kesakusliitto AEK ry and Others v Fujitsu Siemens Computers Oy (2009) ECLI:EU:C:2009:533, §57. 52 ibid §58. 53 ibid §63. 54 C-349/01 Betriebsrat der Firma v ADS Anker GmbH (preliminary ruling) ECLI:EU:C:2004 440, §52.

446  Bruno Veneziani to take account of undertakings making up an economic unit with an independent power of decision, ‘irrespective of the way in which their capital is held or of the rules of administrative supervision applicable to them’.55 The large field of the economic model should have required a more strong democratic involvement of workers, also in the phase of intervention of the EU Commission which controls the concentration, to make such event compatible not only with the common market competition but also in respect of fundamental social rights, in observance of Article 152 TFEU. The Regulation No 139/2004 grants a generic recognition for representatives of workers of ‘the right to be heard’ (Article 18(4)) even though only in the Recital 36 is foreseen the respect of the Community also of Article 2756 and the warning that the Regulation ‘in no way detracts’ from the collective right as recognised in the undertakings concerned, notably with regard to any obligation to inform and consult their representatives under national and Community law.57 2.  Personal Scope: The Quality The CJEU scrutinises the broad margin of appreciation reserved to the Member States about social matters provided that any intervention cannot have the effect ‘of frustrating the implementation of fundamental principles of EC law or of provision of that law’ as are the aims of social and employment policy.58 So, the principle of the involvement of collective autonomy in the management of the participation model is considered so crucial by the EU legislator that the crossfertilisation between law and collective bargaining assures the breadth of the workers protected. This is the inner logic of Directive 2002/14/EC Article 11(1) that allows Member States to authorise management and labour to introduce the provisions ensuring the transposition of the directive, considering social actors to be best suited to their needs and wishes. The role is supported by the CJEU.59 However, that provision does not discharge the national legislator from the obligation of ensuring that ‘all workers are afforded the full protection provided by the directive’. Especially in the case where the protection is not ensured by other means and in particular ‘where workers in question are not protected because are not unions members’,60 such a full protection is at risk. In this case the degree of enjoyment of ‘the full extent’ of the right is a ‘pure juridical reflection’ of the coverage of collective agreement.

55 Recital 22 of the Council Regulation (EC) no 139/2004 of January 2004 on the control of concentrations between undertakings (the EC Merger Regulation). 56 Recital 36. 57 Recital 45. 58 C-167/97 Regina v Secretary of State ex parte Seymour-Smith Perez (1999) ECR I-623 §§71-74 and C-187/00 Kutz-Bauer v Freie und Hansenstadt Hambourg ECLI:EU:2003:168, §55–56. 59 C-187/98 Commission v Greece (1999) ECR I-7713 §46; Andersen (n 43) §25. 60 Ingeniorforeningen § 40 (n 43); Andersen (n 43) §26.

Article 27  447 A different case deals with the typology of employment contracts and subsequent identity of the bargaining individual parties. The main problem is linked to the definition of workers, which according to Directive 2002/14/EC – in its function of partial harmonisation and for its purposes – means any person who in each Members State concerned is ‘protected as an employee under national employment law and in accordance with national practice’. The subsidiarity principle constitutes a vague notion but it cannot frustrate the implementation of the directive and a fundamental right recognised by Article 27, by excluding from the calculation of staff number in undertaking, in particular to determine the legal thresholds for putting into place bodies representing, staff-workers with assisted contracts qualified as employees under national employment law.61 The effect of this interpretation means that the objective of social policy and the nature of the right of consultation and information does not allow any national measure excluding from the protection some categories of worker (fixed term contract, temporary contract or those provided by an outside undertaking).62 This argument is suitable in times of transformation of the economy due to globalisation and the economic crisis. This trend goes against a previous evolution, where all the legal institutions inherited from the past have enlarged the material scope of the right holders, otherwise totally deprived of all fundamental protection. According to the ESC, the workers’ right to information and consultation has been extended to cases of outsourcing and changes in the ownership of company. The margin of appreciation of the States has a limit. It cannot ‘alter the precise and unconditional nature of the obligation ex Article 3(1) to take into account all employees’.63 The RESC has conditioned the principle of effectiveness of protection of its model of information and consultation on the requirement that it needs to ‘be applied to a great majority of workers concerned’ (Article 1(2), emphasis added). The formula raises some questions about two essential features describing the majority: –– the extent of quantity: how great is the majority; –– the kind of quality: which skills or categories are involved, or who are the workers concerned.64 The same question emerges in analysing the Directive on collective dismissals which only applies to establishments normally having more than 20 workers. The ECSR has defined the great majority as at least 80 per cent of the total workforce.65 The rationale of this decision stems from EU rules and the need 61 C-385/05 CGT and AA v Premier ministre, ECLI:EU:C:2007:37, §34; C-176/12 Association Mediation Social v Union locale des syndicat and Others, ECLI:EU:C:2014:2, § 24. 62 CGT, ibid §34. 63 Association Mediation (n 61) §33 (emphasis added). 64 Joanna Unterschutz, ch 5 in this book. 65 ECSR, Conclusion cycle 1 1969, Veneziani (n 45) 393.

448  Bruno Veneziani to fix a minimum framework to adopt a correct implementation of Article 21 ESC. The scope of the Directive 2002/14 is restricted to undertakings with at least 50 employees or establishment with at least 20 employees in any Member States. This is also the trend of the ECSR when it states that the workers concerned seems to refer to the workers employed in undertaking, irrespective of their qualification, skills, type of contract, length of service or workplace.66 Any exclusion will be considered as a discriminating measure. In many national cases, scrutinised by the ECSR, it follows the rule laid down in the ESC including nationals of other states, who can be elected as trade unions representatives and participate in the meetings of management bodies.67 iii.  Information: Full, Timely, Written and Accurate The EU law has been aware of the modifications occurring in the market economy potentially affecting the workers’ main interests and rights and the necessity to facilitate implementation of the model of the socially responsible enterprise. One of the first interventions of the CJEU dealt with the case of the group of undertakings and the difficulties of implementation of the Directive 94/45/ EC. The model of participatory democracy in Community-scale undertakings and groups of undertakings tries to give workers’ representatives access to information. This right to information is a ‘prerequisite’ for determining whether the Community scale exists, which is in itself a condition for setting ‘a model of transnational procedure’.68 The decision is relevant in determining also who is obliged to give information and at which level of the group of undertakings must be given the information. The CJEU establishes a principle of ‘articulated responsibility’ based on an idea that the central management of the undertaking, exercising a dominant influence over all the group, has the power to request and oblige the controlled undertaking to provide information essential for opening negotiation in order to enable it to communicate that information to the representatives (paragraph 54). The subordinate undertakings have two duties to ‘supply the information concerned’: the first, positive, ‘where it is in possession of the information’ – and second, proactive, ‘or is in a position to obtain it’ (paragraph 54). The enlarging phenomenon of concentration between undertakings requires the EU Commission to draw up a balance between the concentration and their impact on social rights. Compared to the strength and the dimension of the concentration, the antidote imagined in Council Regulation (EEC) No 4064/89 (Recital 18) offers to workers’ representatives just ‘a right to be heard’, a formulation which survived in the reform of the Council Regulation (EC) No 139/2004,



66 Arts

2 and 3 of the Explanatory report to the Additional Protocol 1988. (n 45) 395. 68 Betriebsrat §50. 67 Veneziani

Article 27  449 although EU law tributes an homage to the Charter being a source ‘to respect’ and ‘to observe’.69 The formula ‘to be heard’ can be enriched by inferring from Article 27 a complete set of rights of workers to receive complete information and to start full consultation. The CJEU established that recognised workers’ representatives in the undertaking, involved in a concentration, have ‘the right to submit their observations in the administrative procedure’.70 The rationale of the judgment is that those representatives have ‘a relevant interest with respect to the social considerations’.71 The Commission should bear in mind, in the context of appraisal about the lawfulness of concentration, the fundamental objectives set by Article 2 of the Treaty, including that of strengthening the social cohesion.72 Article 27 does not define either the meaning of information or how it must be given, except the temporal aspect of the performance of the duty of employer: ‘in good time’. This generic expression must be interpreted in the light of the aim of the directive and the general social objectives of Article 3(3) TEU and ‘dialogue between management and labour’ Article 151 TFEU. The expression has been used by the Directive in the case of collective dismissals placing the respect of the obligation to inform ‘in the case he is contemplating collective redundancies’ (Article 2(1)) and to notify the competent public authority of ‘any projected collective redundancy’ (Article 3(1)). The CJEU presumes correctly that contemplating the measures of dismissals and drawing the ‘project’ corresponds ‘to a situation in which no decision has yet be taken’. Then the requirement of ‘good time’ assumes a more precise meaning. The Luxembourg judges enrich their reflection and underline that the content of information relates to economic and commercial decision which could have repercussions on the employment of a number of workers within an ­undertaking. The obligation to inform – according to the Court73 – ‘in good time’ implies a ‘continuous performance’ of the employer because: –– it arises prior to the decision to terminate contracts; –– can be supplied not necessarily at the time the further step (consultation) starts; –– it lasts ‘during the course of the consultations’ because it is possible for workers representatives ‘to make proposal’;74 69 Recital 37. 70 Case T-12/93 Comité centrale d’Entreprises de la societé anonime Vittel,Comité d’etablissement de Pierval and AA v Commission ECLI:EU:C:1995:78, § 40. 71 ibid §40. 72 ibid § 38. 73 Akavan (n 51) §36–38. 74 ibid §51–52.

450  Bruno Veneziani and the obligation is still impending on the employer ‘up to the end of the process’.75 The content of information is not clarified in the text of Article 27 and for that reason it must be found in all specific labour law issues indicated in EU sources. So, it is true that information must refer to what can be useful to reduce the risks of loss of employment. The representatives of workers need data in general to know the social impact of the employer action (transfer and concentration of undertaking, collective dismissal, protection of health and safety). The data must be functional to the right of representative of worker to ‘submit their observations’76 and for that must be ‘in writing’.77 The Recast directive 2009/38/EC indicates that ‘information shall be given … with such content inappropriate to enable employees representatives to undertake an in-depth assessment of the possible impact and … prepare for consultations with competent organ of the Community scale undertaking or Community scale-group of undertaking’.78 So, in the case of collective redundancy the obligation to provide data covers a wide range of items: –– –– –– –– –– ––

the reasons for the projected redundancies, the number of categories of workers to be made redundant, the number and category of workers normally employed, the period over which the projected redundancies are to be affected, the criteria proposed for the selection of redundant workers, the method for calculating any redundancy payments as well ‘all relevant information’ more broadly.

ILO Convention No 158 of 1982 also deals with the termination of employment in general and contains supplementary provisions for the same topic, but in more specific terms addresses employment termination ‘for economic technological and structural similar reason’.79 The right of information reveals its nature as a functional aspect of trade union freedom and for that reason reinforces its quality of human right. The close link is expressed by some decision of ECtHR where the judges suggest that the ECHR safeguards ‘freedom to protect occupational interests of the union members by trade union action’80 and it leaves each state ‘a free choice of the means to be used to secure the right to be heard’.81 75 ibid §53. 76 Vittel (n 70) §40. 77 ibid §13. 78 Art 2(1)(f). 79 Part III, Art 13 (1). 80 Wilson National Union of Journalists and Others v UK (n 36) §42. 81 National Union of Belgian Police v Belgium 27 October 1975 §§38–39 and Swedish Engine ­Drivers’ Union v Sweden 6 February 1976, Series A no 20, 14–15 §39.

Article 27  451 iv. Consultation The model of consultation is not defined in Article 27 as far as identity of all actors, the matters, its structure and the complete feature of the obligation are concerned. Consultation is a rather vague word, which implies a plurality of models of workers involvement aimed at a specific end, performed by specific actors and it involves a peculiar protection. So that meaning, structure and function must be read in the framework of the EU law and the purposes of its intervention. In the general contest of legal sources – to which the Explanations refer – Article 21 ESC defines: –– a modality of the performance of the employer’s duty: ‘in good time’ –– the content: decisions proposed by the employer –– the quality of the proposal: which could substantially affect the interests of workers –– the effects of decisions: ‘having an important impact on employment situation in the undertaking.’ This is a catalogue of the ‘essential content’ of a right to consultation whose meaning is closely linked to the previous step of information, thus representing a functional equivalent aimed to make effective the right of workers to be an ‘active’ part of this participatory democracy. The text is clear and does not restrict the range of duty to disclose information on economic and financial topics, enlarging it to all fields ‘substantially affecting the worker’s interests’ (article 21 b). The relevance of the employer’s obligation to cooperate in democratising the undertaking is stressed especially in the case of a strong impact on the employment situation in the undertaking (restructuring of the company plant, new kind of classification models, transfer of whole or a branch or unit, merger or split of company, delocalisation of activities branch and group unit).82 The EU panorama of Directives and Regulations offers different perspectives and definitions concerning: –– the identity of the enterprise (single, Community-scale and group, European company); –– its structural changes (transfer of undertaking, concentration between undertakings); –– the matter(safety and health at work); –– the quality of labour law terms and conditions (collective redundancy).

82 Csilla Kollonay Leoczky, ‘The fundamental rights of workers to information and consultation under the Eurodpean Social Charter’ in Filip Dorssemont and Thomas Blanke, The Recast of the European Works Council Directive (Antwerp, Intersentia, 2010) 21.

452  Bruno Veneziani The different perspectives and definitions are the outcome of a pragmatic ­strategy of the EU aimed to face the dramatic changes that occurred in the European economic system of common market. A timely information and consultation were ‘the prerequisites for the success of the restructuring and adapting of undertaking to the new conditions created by the globalisation of economy, particularly through development of new forms of organisation of work’.83 The response to the change of identity of employer is a model of consultation inspired by ‘a spirit of cooperation’ and ‘with due regard for the reciprocal rights and obligations’.84 Consequently, consultation is no more than an ‘exchange of views and establishment of a dialogue between the employees’ representatives and the employer’ (Article 2 (g)). The law goes into detail to make effective the success of the two components of internal democracy. Information and consultation will deal with the probable activities and economic situation of the undertaking or establishment, development of employment in undertakings or establishments and anticipatory measures envisaged, in particular where there is a threat to employment and all decisions ‘likely to lead to substantial changes in work organisation or in contractual relations’ (Article 4). In this rationale it is consequent that the information will serve as essential support to the success of the consultation. The fundamental requirements of the consultation are strictly indicated in: –– appropriate timing, method and content; –– relevant level of management and representation depending on the subject under discussion; –– basis of information supplied by the employer; –– opinion formulated by employees’ representation’ –– the way as to enable employee representatives to meet the employer and obtain response and the reasons for that response to any opinion they might formulate.85 The legal itinerary imposes an obligation on the employer to allow the completion of the overall procedural steps (information-opinions-dialogue) ‘in the view to reaching an agreement on the decision of employer’. The itinerary should promote an agreement which is presumably limited ascertaining that the objects of information are exhaustive, the quality of data is relevant, the timing is appropriate and suitable and that consultation in itself is satisfactory and in good faith. The last sentence of point 4 generalises the wording used by the Transfer of Undertaking Directive 2001/23/EC (Article 7(2)) and Collective Redundancies

83 Recital

9 of the Directive 2002/14. 1 §3 Directive 2002/14. 85 Art 4(4). 84 Art

Article 27  453 Directive 98/59/EC (Article 2(1)). Both Directives, in fact, oblige the employer to observe the requirement of the procedure whose final outcome is qualified as compulsory (‘shall…consult’). In this perspective it is possible to make a difference with the collective bargaining procedure. In fact, this procedure deals with other issues mainly, if not exclusively, referred to terms and conditions of work and, in its obligatory part, to the way the parties are engaged in the managing the institutional clauses on the disputes in undertaking aimed to regulate jointly the settlement.86 Compared to this previous acquis, it is still astonishing that in the EU market, where the event of undertakings’ concentration in oligopolistic markets exhibits a healthy degree of competition, the EU legislator has reserved to ‘recognised workers representatives a simple “right to be heard”’.87 Anyway this recognition does not specify the exact function of ‘to be heard’, it presupposes a quite ‘passive’ attitude of the trade union so that the Strasbourg judges say that ‘the union and its members must however to be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members’.88 By the way, the Regulation ensures that ‘in no way the Regulation detracts from the collective rights of employees, as recognised in the undertaking concerned, notably with regards to any obligation to inform and consult their representatives under community law and national law’.89 So, the expression ‘agreement’ is closely referred to the two phases of the model and nothing more, although the procedure is supposed to be functional to the possible further step of collective bargaining at undertaking level.90 The legal procedure seems to be more detailed and functional in the case of a more institutionalised and articulate level of industrial democracy. In the case of setting up European works councils, the EU law must ensure the effectiveness of the fundamental rights proportioned to the wide dimension of the enterprises and to the quality of transnational issues.91 Consultation consists in a couple ‘dialogue and exchange of views’ – between workers’ representatives and central management at the appropriate level in a spirit of cooperation92 – which output is the ‘expression of opinion’ by employees’ representatives to declare their reasons.93 The rigorous observance of the rule on the procedure is requested by the particular physiognomy of the group of undertaking having a community scale dimension and structure. The web of dialogues at transnational level permits



86 See

Comment to Art 28 in this book. Regulation (EC) No139/2004. 88 Wilson National Union of Journalists v U.K.(n 36) §44. 89 Council Regulation Recital 45. 90 Dorssemont (n 37) 759. 91 Art 5(3) Directive 2009/38/EC. 92 Arts 2 and 6, Directive 2009/38/EC. 93 Subsidiarity Requirement to Directive 2009/38/EC, Art 1 (a). 87 Council

454  Bruno Veneziani ‘suitable linkage between national and transnational level … and ensuring the legal certainty required for the application of the Directive’.94 The duty of the employer is to favour the success of the consultation ensuring the appropriate information in the timing, the fashion and the content of the proposed measures95 to anticipate and manage all changes proposed by the firm.96 In this framework the issues to be discussed during the consultation – situation and probable trend of employment, investments, introduction of new working methods of production process, collective redundancies – have direct effects on the terms and conditions of employment envisaged in the Solidarity Title of the EU Charter. The reference to ‘exceptional circumstances or decisions’97 affecting the employees’ interest is not understandable and ‘surprising’.98 In fact, it refers to ‘exceptional circumstances or decisions affecting the employer interests to a considerable extent’, as relocations, closure of establishment or undertaking or collective redundancies. In other words two events (relocation, closure) affect, without any responsibility of the employer, the transformation of the structure of enterprise and one (collective redundancies) deals also with workers’ rights. In other words, the rule extends the obligation of the employer to inform and consult such as to cover all circumstances and decisions beyond its control and the will as could happen for a force majeure or competition events or decisions taken by public authorities. The reason of the provision seems to restrict the right ‘to be informed’ and, possibly but not certainly, after the first phase, the right ‘to meet’ the central management to be consulted. In this peculiar context the agreement instituting the EWC in the meaning of the Recast Directive 2009/38/EC is particularly sensitive to the ‘need for balanced representation’ (emphasis added) of the EWC (Article 6(2b)). The same formula is repeated in the rules concerning protection of health and safety of workers at work.99 The aim is peculiar and stressed in terms of ‘guarantee a better level of protection’ (Recital 13). It is possible to presume that the European legislator has used this particular ‘variable’ model of ‘balanced’ involvement to stress the point that each single worker is ‘exposed to the effects of dangerous environmental factors at workplace during the course of his/her working life’ (Recital 6). Only a balanced participatory democracy can provide for the highest protective and preventive protection (Article 7). The legal provisions respect the sensitiveness of the topic (Article 11): discussion-proposal from 94 Recital 21. 95 Art 2 (g) Directive 2009/38/EC and SE. 96 Recital 15. 97 Art 3 of Subsidiary Requirement of Directive 2009/38/EC. 98 Dorssemont (n 37) 760. 99 Council Directive 89/391/EEC 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work.

Article 27  455 workers and/or their representatives and consultation in a ‘balanced way’ in accordance with national law and/or practices (Article 11(2)). The term ‘balanced’ implies the evaluation of the representativity of employees according ‘to their activities, category, gender and term of office’.100 These criteria can be used to interpret this term in the light of the objective of the protection,101 ie the health and safety, requiring an accurate and ‘equilibrated’ choice made by the workers and/or the trade unions to set their representatives. The consultation procedure mirrors the quality of the issue at stake and constitutes an original scheme of involvement of workers in a different kind of responsibility. A general rule refers: –– to the way that the lead consultation must be ‘taken in good time and in advance’; –– to a vast range of specific measures ‘substantially’ affecting safety and health; –– to the workers responsible for the protection and prevention of risks; –– to the information about risks and protective and preventive measures (Article 8 and Article 10). The dynamic of the consultation is composed by a right to ask the employer on appropriate measures and to submit proposals to mitigate hazards and/or to remove sources of danger (Article 11). The consultation procedure must be taken ‘in advance and in good time’102 and the same culture of prevention has been shared by the ILO sources which place the consultation ‘before decision[s] … are taken by management’.103 In a general perspective the rationale of the law is that all mechanisms of involvement must come in force, with the exception of concentration Regulation, just before the employer decision on the event concerned (transfer, dismissal, health and safety, group of enterprise) and regulated by EU laws. It stems from the Framework Directive 2002/14/EC where the criteria qualifying the consultation are classified as timing, method and content, finalised with the right of workers to formulate an opinion and start up a dialogue104 and prior to the consultation. In this vein the duty of the employer to consult ‘is deemed to arise where the employer is contemplating or is drawing up a plan for collective redundancies’105 also in situations where the prospect of collective dismissals ‘is not directly the choice of the employer’ (paragraph 42) and in any case ‘prior to any ­decision … to terminate contract of employment’.106 In fact, in a complex organism as 100 Art 6 Directive 2009/38/EC. 101 F-26/2012 Cerafogli v European Central Bank ECLI:EU:F:2014:218, §24. 102 Art 11 Directive 89/391/EEC. 103 Art I(3) Recommendation 1967 No 129; Art 13 of Convention 1982 No 158. 104 Art 4 Practical Arrangement §4. 105 Akavan (n 51) §41; C-284/83 Dansk Metalarbejderforbund and Specialarbejderforbundet i Danmark v Nielsen & Sons ECLI:EU:C:1985:61, §17. 106 C-188/03 Junck v Kuhnel, ECLI:EU:C:2005:59. §37.

456  Bruno Veneziani a group of undertaking the obligations to consult applies to the employer ­‘irrespective of whether the decision … is being taken by the employer or by an undertaking controlling the employer’.107 The legal mechanism is finalised to avoid termination of contract or to reduce the number of workers affected and to mitigate the consequences.108 This is the effet utile of the directive, which can be frustrated ‘when the decision making collective redundancies necessary had already be taken and could not usefully involve any examination of conceivable alternative with the aim to avoid them’.109 This explains why the obligation of information has the nature of ‘continuous duty’ to supply relevant data or report ‘in good time during the course of consultations’, in order to enable workers’ representative to make constructive proposals.110 D. Limitations The quantitative restriction of the scope of participatory democracy is paradoxical. The constitutional nature of the legal source (ie a Charter) is at the top of the hierarchy of the EU legal system. The solution of the restriction stems from the reason of efficiency of the small and medium undertaking111 where an informal unregulated system of consultation and information exists ‘in the fact’.112 More paradoxical is the exclusion in the case where the involvement of workers is strictly essential for the protection of the right to work as it is in the event of collective dismissals. Article 1(2) of the Directive 98/59/EC on collective redundancies excludes fixed term contract, public sector workers and crews of sea-going vessels. These instances are exceptions to the general rule fixed in Article 27 and they must be construed narrowly. An attempt at the exclusion of employees of non-profit undertakings has been struck down by the CJEU regarding managers and workers not entrusted with particular management powers but defined as ‘managers only with a high level of professional qualifications’.113 The European judges have held that national law fixing an automatic termination of contract of employment, as a result of judicial winding-up order in the employer’s insolvency, could not respect the Directive application and ‘until legal personality of an establishment, whose dissolution and winding up have been ordered has ceased to exist, the obligation under Article 2 and all Directive 98/59/EC must be fulfilled’.114 107 Akavan (n 51) §61. 108 Junck (n 106) §38. 109 Akavan (n 51) §46. 110 ibid §51. 111 Art 2§2 of Explanatory report to the 1998 Additional protocol. 112 Veneziani (n 45) 394. 113 C-596/12 Commission v Italy ECLI:EU:C:2014: 77, §14. 114 Joined Cases C-235/10 to C-239/10 Claes and Remy v Land Bansky Luxembourg SA, EUCLI:EU:C:2011:119, §58.

Article 27  457 If one assumes the method to analyse the implementation of EU fundamental rights not only on the quality of its content but in the light of their objectives, one could discover that any restriction of their implementation would infringe their protective mission. E. Enforcement The right to information and consultation as fundamental social right has been regulated in all circumstances where the interests of workers are relevant compared to the social dimension of the European context. The power of principles does not correspond of course to the quality of an adequate method of effective enforcement. The problem is acute and urges to find a solution taking into account that the model envisaged in Framework Directive 2002/14/EC is transversal to all possible dimensions of the employer’s entity. All undertakings must be assisted so as to protect all arrangements defined and implemented in such ways to ‘ensure their effectiveness’115 in each single production unity and in the Community-scale group. So, the directive imposes substantive and procedural limits to Article 16 of the Charter for the employer who cannot terminate contract of employment before he has engaged in two procedures in question, ie immediately after the information about its intention.116 The CJEU has tried to safeguard employees’ rights in events of transfer of undertaking and to overcome the resistance of some Members States, and has declared, since the 1980s, that ‘a national legislation, which make it possible to impede protection unconditionally guaranteed to employees by a directive, is contrary to Community law’.117 The logic of effet utile is the legal paradigm which induces the Luxembourg judges to apply the Directive also in the case of there not being any employee representative in undertaking or business. They use the method of systematic interpretation, according to which the provision of Article 6 n.5 of the Council Directive 1977 on transfer of undertaking ‘cannot be read in isolation and independently of other provision of the Article 6’.118 The CJEU says that the risk is to deprive of all protection ‘workers if the Member states are exempted to ensure the obligation of employers which in respect of number of employee do not fulfil the condition for election or designation their representatives’ but this circumstance ‘does not mean that member states are obliged to provide that employees must none the less be informed in advance when the transfers is about the place’.119



115 Art

1(2) Works Council Directive. §41. 117 C 61/81 Commission v UK and Northern Ireland, ECLI:EU:C:1982:258, §92. 118 C-382/92 Commission v UK, ECLI:EU:C:1994:233 § 24. 119 Andres Rabal Casas (n 49) §23 and §94. 116 Junk,

458  Bruno Veneziani The sanction provided for by the EU law follows the criterion of effectiveness and is consistent with the Preamble of Additional Protocol to ESC of 1988 (point 1). The only requirement must be, according to the ECSR, to attain that the rights of the ESC must take ‘a practical and effective rather than purely theoretical form’.120 This objective is the task of Member States which, in the event of no compliance with the Directive 2002/14/EC (and also collective redundancies, transfer of enterprise), are obliged to ensure adequate administrative or judicial procedures and to provide adequate sanctions. Adequacy is guaranteed when the sanctions are effective, proportionate and dissuasive. This ‘trilogy of quality’ has been elaborated from the CJEU121 and it has been qualified as expression of the ‘principle of sufficient effectiveness’.122 The directives provide only general requirements for informing and consulting concerning sanctions, but they do not compel Member States to introduce specific ones. The comparative panorama embraces different types and in the majority of cases deals with administrative fines, punitive damages, penalty payments related to the gravity of offence. In Germany the violation of the obligations to consult and inform can ‘constitute an obstacle or nuisance of the works council’s operation’.123 i.  Labour Inspectorate Intervention The detailed description of the public intervention is a good antidote against vague formulations. It must be taken into account that the right to a democratic management of the enterprise has a nature of human right and for that it requires the extension also to public employees and revision of the scope of application. The principle of appropriateness is not defined, but according to ECSR it must be ascertained: whether or not the Labour Inspector is in charge, the number of inspections varied by the inspectorate, the number of sanctions imposed on the employer, the level of fines. This statement echoes the CJEU’s opinion that any other functional equivalent protection is not enough to meet the Directive requirement, because the specificity of the duty to create an effective model must be respected.124

120 Veneziani (n 45) 400. 121 C-68/88 Commission v Hellenic Republic ECLI:EU:C:1989:339, §23. 122 Jonas Malmberg, Effective Enforcement of EC Labour Law (Uppsala, Iustus Publishing, 2003) 225. 123 Commission staff working document accompanying the Communication for the Commission to the Council, the EU Parliament, the EESC and CR on the review of the application of Directive 2002/14/EC, Com (2008) 146 Final; administrative fines are also in Concentration Regulation, 2004. 124 C-215/83 Commission v Kingdom of Belgium ECLI:EU:1985:146, §19.

Article 27  459 Some questions arise as regards the effect of the sanctions on the ­employment relationships especially in the case of collective redundancies.125 The collective redundancy procedure is inspired by the idea that the event of collective dismissal goes beyond the perimeter of the enterprise and regards the entire society and public power. The control of the Public Authority on the social effect of the decision aims ‘to seek the solutions to the problems’ raised by the employer’s decision.126 ii.  Labour Law Remedies A strong and logical sanction would be in fact the nullity of the measures if the employer has not informed or consulted workers’ representatives at all. The violation consists in a radical infringement of the essential content of the right and of the value of solidarity. This value concretises a double-face of each trade unions’ rights envisaged in the Charter as a right of single workers and of the group of workers. Any omission or infringement to make effective the democratic participation in determining working condition has a double negative effect on the individual dignity and on the survival and the functioning of the group of workers. The reaction of the European legal orders to the violation of the essential content of participatory democracy changes according to the decision of the states to promote individual judicial action or collective self-defence. In Germany the double level of protection is not the rule. Under German labour law compensation deriving from violation of a consultation right is given to individual employees and not to work councils. In Italy the same violation is classified as anti-union conduct and the workers’ representative can claim that the employer restores the status quo ante meaning for instance that the dismissals have no legal effects.127 The special quality of the right concerning collective autonomy and of the individual freedom has been stressed also in ILO sources.128 As the protagonist of the grievance procedure is qualified as ‘any worker … acting individually or jointly with other workers’ (Article 2). In the same spirit Directive 98/59/ EC states the responsibility of Member States to apply laws, regulations or administrative provisions ‘for the enforcement of obligations of the directive are available to the workers representatives and/or workers’ (Article 6). The same formulation is used in describing the system of enforcement of information and consultation on matters related to safety and health. It must 125 See Renault Vilvorde affair in Isabelle Schömann, Stefan Clauwaert and Wiebke Warneck, Information and Consultation in the EU community- Implementation Report of Directive 2002/144/EC, ETUI, Brussels, 2006, 10. 126 Art 4 Directive. 127 Malmberg (n 122) 246. 128 ILO Recommendation 1967 concerning the examination of Grievance 1967 No 130.

460  Bruno Veneziani be underlined that the protagonist of the Directive 89/391/EEC is really ‘each single worker’ which receives adequate training on the issues of his/her health and safety and in this way the rule evokes the roots of the right to personal dignity (Article 1 Charter) and integrity.129 The procedure is organised according to the criterion of ‘variable geometry’ among workers as a group and workers as a representative of a group. So: –– the consultation involves workers or their representatives about specific items; –– the employer must take appropriate measures and submit proposals involving only workers’ representatives with specific responsibility; –– workers and/or their representatives are entitled to appeal to the Authority responsible for safety and health protection in case of no appropriate measures taken by the employer. The CJEU has adopted a clear-cut opinion on the standing of legitimate actors holding that the participatory procedure ‘must be intended to benefit workers as a collective group and is therefore collective in nature’.130 The quality of the matter in discussion and of the commitments required (id est, to formulate constructive proposals, to avoid or to mitigate negative consequences, to make comments to the competent authority) can receive full protection only by adequate representation of workers in the judgment. III. CONCLUSIONS

The articulate and vast acquis composed by the network of secondary legislation, cross references to international sources, decisions of the CJEU and international bodies and institutions surely represents a legal background to activate the model of workers’ participation. However, there still exist some issues to be detracted by the ‘grey zone’ of the democratic model envisaged in the Charter. In the cases following the enactment of the Lisbon Treaty and the recognition that the Charter has the same value as the Treaties (Article 6(1) (1) TEU) the Luxembourg judges have applied the consistent and robust set of directives and international sources at disposal for their judgments. A different attitude has been addressed to Article 27. In fact from the date of entering in force of the Charter – as part of an EU Constitution – to present days it has been banished, in the CJEU case law, to a role of provisions to which it attributes only a ritual homage. In fact, it has recently happened in the Erzberger case where Article 27 has been only quoted by the AG and­

129 K Lörcher, ‘Article 3’ in N Bruun, K Lörcher, I Schomann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) 185. 130 Mono Car Styling (n 5) §42.

Article 27  461 qualified not as a fundamental right but no more than a ‘legitimate aim of the EU law’.131 The CJEU stated that Article 45 TFEU precludes any national measures hindering or rendering less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by that article, but it does not apply to the worker who, after having been granted a mandate as representative in a supervisory board, during his/her period of employment in an establishment located on that national territory moves to a subsidiary established in another Member State and thereby loses his/her representation rights. In fact, Article 45 cannot guarantee to a worker that moving to a Member State other than that of origin will be ‘neutral in terms of condition of employment’ (paragraphs 37–41). The judgment is astonishing and deprives the representative function of its existence. The CJEU judgment is in line with its culture in the theme of social rights and with the refusal to accept that fundamental collective labour rights are universal and indivisible. It must be considered that the right of workers’ representatives to be informed and consulted is an automatic right.132 More attention to Article 27 has been given by the CJEU in the Association mediation sociale case where the judges reiterated their traditional unpersuasive interpretation. The fundamental rights guaranteed in the legal order of the EU are applicable in all situations governed by EU cases.133 According to Luxembourg judges for Article 27 to be fully effective it must be given more specific expression in EU law or national laws and for that reason neither Article 27 nor its Explanatory notes are ‘directly applicable rule of law’ and do not contain ‘any prohibition on excluding’ from the calculation of the staff members in an undertaking a specific category of workers initially included in the group of persons to be taken into account in that calculation (paragraph 46). The same article, also in conjunction with the Framework Directive 2002/14/EC, is ‘unable to confer on individuals a rights which they may invoke as such’ (paragraph 49). The first element to support a thesis different from the one held by the CJEU arguments is that the rules found in Article 27 – compared to some others included in the Charter as for instance Article 21 stating the principle of no-discrimination – are set out as not negative but positive fundamental rights. The second element arises from the (above) described analysis of the EU framework concerning the material and procedural aspects of model of information and consultation as it has been elaborated by directives. The result of this process is a construction of a set of rules giving specific expression to the essential content of Article 27 which must form the basis for the assessment of all cases. The third element, last but not least, comes from the values that the history of trade union movement has expressed during the twentieth and twenty-first 131 Conclusion of the GA § 104 note 81. 132 Motion of Committee on employment and social Affairs for EU Parliament Resolution on the implementation of Directive 2002/14, 2008(2246)(UNU), point 14. 133 C-617/10 Akzagaren v Hans Akerberg Franson, ECLI:EU:C:2013:638, §19.

462  Bruno Veneziani centuries. Using the method of teleological interpretation, the CJEU should have been obliged to discover that all expressions of collective autonomy are finalised to make effective the value of solidarity. The essential content of all expressions of solidarity must be read in the light of reinforcement of workers both as individual persons and members of a group. The heading of Solidarity is not a presumption of existence either of a principle or a right but it is a source of inspiration for both legal categories. The corollary of these elements is that the model can be in a condition to protect effectively the representative of workers’ rights if the scheme information/consultation is intended as a unitary category of guarantees for workers. Because of its legal quality it must be considered as horizontally applicable. The actual framework of information and consultation needs to be reformed as regards some aspects and the scope of application in order to enrich the inner meaning of Article 27. With regard to seafarers the Commission has presented in 2013 a proposal for a directive with a view to lifting the exclusion of seafaring workers from the personal scope of application of a number of labour law directives.134 The second area of intervention deals with SMEs, because the link between the level of threshold and the actual degree of worker representation is unclear. It is a general tendency for the effects of information and consultation and collective arrangements to decline with decreasing company size almost irrespective of the level at which formal thresholds are set. The third point deals with the public sector and to what extent it is covered or not. While Information and Consultation Directives apply to public undertaking carrying economic activity, whether or not operated for gain, they do not cover public administration. The CJEU pointed out that directive 98/59/EC does not cover activities of the public administration, which falls within the exercise of public powers.135 It must be stressed that the employment relations of public sector workers are also in the process of changing, becoming more and more like private sector contracts. The Commission has underlined this aspect considering the application of The Quality framework on restructuring to this sector to workers regardless of the nature – statutory or contractual – of their employment relationship.136



134 COM

(2013) 798 Final. USA v Nolan, ECLI:EU:C:2012:638, §34. 136 COM (2013) 882 Final. 135 C-583/10

Article 27  463 Last but not least, a Draft Report of participation in decision-making in supervisory bodies (2015/2222(INI)) advocates introducing minimum rules in existing directives, including the requirement that a company registered office must be identical with its actual place of business, to avoid circumvention of employee representation rights – like information and consultation – on the supervisory board. The Report calls for standard rules on employee representation at that level, as a universal model to all European corporate directives.

464

22 Article 28 – Right of Collective Bargaining and Action FILIP DORSSEMONT AND MARCO ROCCA

‘The recognition of the right to strike as a human right imposes a duty on the state to protect and facilitate the exercise of the right to strike.’1 Article 28 Right of collective bargaining and action Workers and employers, or their respective organisations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.

EXPLANATIONS This Article is based on Article 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. As regards the appropriate levels at which collective negotiation might take place, see the explanation given for the above Article 27.2 The modalities and limits for the exercise of collective action, including strike action, comes under national laws and practices, including the question of whether it may be carried out in parallel in several Member States.

1 Bob Hepple, ‘The Freedom to Strike and its Rationale’ in Bob Hepple, Rochelle le Roux and Silvana Sciarra (eds), Laws against Strikes (Milano, Franco Angeli, 2015) 43. 2 See the reference in the explanation to Article 27: ‘The reference to appropriate levels refers to the levels laid down by Union law or by national laws and practices, which might include the European level when Union legislation so provides’.

466  Filip Dorssemont and Marco Rocca I. INTRODUCTION

A.  Context and Main Content The recognition of the ‘right of collective bargaining and action’ in the CFREU constitutes the heart of the legal prerequisites of any system of industrial relations. Without effective recognition of these collective rights, such a system ceases to pulse and the right to organise is deprived of its effet utile. Ever since a landmark decision of the tripartite Committee on the Freedom of Association (CFA) of the International Labour Organisation in 1952, the right to collective action has been considered a ‘corollaire indissociable’ of the right to organise.3 This seminal formula was embraced three decades later (1983) by the Committee of Experts on the Application of Conventions and Recommendations (CEACR).4 That recognition was prefigured by an important statement in the Report of the Commission of Inquiry examining a complaint against Poland (1982).5 Prior to this reception, a more comprehensive right to collective action was explicitly recognised for the first time in a human rights instrument at international level, id est the European Social Charter (1961 – ESC). The said formula also served as a catalyst for the landmark judgment Enerji v Turkey6 of the European Court of Human Rights (ECtHR). In this judgment, the ECtHR did not hesitate to condemn Turkey for a violation of Article 11 of the European Convention on Human Rights (ECHR) by depriving in a generic way its civil servants from recourse to strike action. Although the Grand Chamber has limited the importance of this reference, in the infamous RMT v UK7 judgment, it did not deny that ‘restrictions to the right to collective actions’ need to pass the test of ­Article 11(2) ECHR. In a subsequent Croatian case, the ECHR did not hesitate to qualify the right to strike as ‘the most important means’ to defend workers’ interests.8 Despite, or rather due to, this progressive success story, the formal recognition of the right to strike was made subject to judicial and procedural challenges, which have been orchestrated from the employers’ side. The major blow to the constitutionally anchored right to collective action in Sweden and Finland was administered by an institution situated at the ­Kirchberg. About a decade ago, the European Court of Justice (CJEU) imposed restrictions on the exercise of such a right that were unprecedented under Scandinavian law. In Viking and Laval (2007), although paying lip service in an in se

3 Tonia Novitz, International and European Protection of the Right to Strike (Oxford, Oxford University Press, 2003) 192. See Case No 28 (UK-Jamaica), 2nd Report of the CFA (1952). 4 Novitz, ibid 200. See CEACR, General Survey (Geneva, ILO, 1983) 62, 6 200. 5 COMPLAINT (article 26) – 1982 – POLAND – C087, C098. See No 517. 6 ECtHR, 21 April 2009, App No 68959/01, Enerji Yapi-Yol Sen v Turkey. 7 ECtHR, 8 April 2014, App No 31045/10, National Union of Rail, Maritime and Transport Workers v United Kingdom. 8 ECtHR, 27 November 2014, App No 36701/09, Hrvatski Lijecnicki Sindikat v Croatia.

Article 28  467 pioneering way to the right to collective action as a general principle of EU law, it imposed restrictions of a teleological and substantive nature which proved to be at odds with the recognition of the right to collective action at international and European (Council of Europe) level. The outbreak of the financial, economic and monetary crisis (2008) prompted the European Commission to reform the economic governance of the European Union and to design Memoranda of Understanding within the framework of bailouts, which, in their turn, have pushed numerous Member States to reform their systems of collective bargaining following recommendations or obligations to the detriment of collective autonomy. Ever since 2012, the employers’ group within the tripartite Committee on the Application of Standards of the International Labour Conference (CAS) has consistently criticised both the direct link between the right to strike and Convention No 87, as well as the extensive interpretation of this right under Convention No 87, which is formally mute on the issue of the right to strike.9 Despite a long-standing legislative tradition of shielding the right to strike from EU directives and EU regulations, the European Commission recently communicated a Staff Working Document (SWD) on Practices Favouring Air Traffic Management Service Continuity (2017), paying tribute to severe procedural restrictions to strike action both on the collective and the individual level.10 The adoption of this SWD casts a shadow on the narrative the Commission has promoted regarding a so-called European Pillar of Social Rights (EPSR) (2017). Furthermore, its Recommendation on the EPSR11 is extremely disappointing in the way it treats the right to collective bargaining and collective action. Although it rightly links these issues to the comprehensive chapter on right and fair working conditions, these rights are included under point 8 as an issue of ‘Social Dialogue and involvement of workers’. Thus, the Commission clearly blurs the dialectical nature of these rights. Indeed, the Commission reiterates the idea that autonomy is to some extent a limit to its obligation to encourage the social partners to negotiate and conclude collective agreements, whereas collective autonomy generates obligations to respect, to ensure and to promote. In the same vein, the Commission fails to understand that it is severely restricting the freedom of collective bargaining and its obligation to encourage  it, where it argues it can assess the appropriateness of the agreements concluded at European level prior to implementing them. Furthermore, such an approach witnessed by the latest hairdressers12 case, clearly violates its­ 9 See Keith Ewing, ‘Myth and Reality of the Right to Strike as a “Fundamental Labour Right”’ (2013) 29(2) The International Journal of Comparative Labour Law and Industrial Relations 146–49. Jean-Michel Servais, ‘The Right to Take Industrial Action and the ILO Supervisory Mechanism Future’ (2017) 38(3) Comparative Labor Law & Policy Journal 375–94. 10 SWD/2017/0207 final. 11 C (2017)2600 final). 12 http://ec.europa.eu/social/BlobServlet?docId=7697&langId=en. See also: Krzysztof Bandasz, ‘A Framework Agreement in the Hairdressing Sector: The European Social Dialogue at a Crossroads’ (2014) 4 Transfer 505–20.

468  Filip Dorssemont and Marco Rocca constitutional ­obligation to adopt proposals to implement these agreements, in a case of joint request.13 Questions can be raised regarding the delay of implementation after a joint request of an agreement concluded between EUPAE (European Public Administration Employers) and TUNED (Trade Unions National and European Administration Delegation) for informing and consulting civil servants and employees of central government, which was concluded after an invitation of the Commission to deal with this issue.14 The only interesting opening offered by the Recommendation on the EPSR is related to its broad approach to the notion of workers. Particularly, it states that ‘where a principle refers to workers, it concerns all persons in employment, regardless of their employment status, modality and duration’. In view of the fact that the EPSR has been adopted, among other reasons, as a reaction to the new challenges stemming from the digital revolution,15 this can only imply that digitalised workers can have effective recourse to the freedom of collective bargaining as well as to collective action. Coming to Article 28, one can see that it recognises ‘the right of collective bargaining and action’ as an aspect of Solidarity. The Article clarifies the holding of these rights by indicating four categories of actors (workers, employers or their respective organisations). It describes the right of collective bargaining as a right to negotiate and conclude collective agreements. It specifies that the right to take collective action includes the right to have recourse to strike action. The provision provides two elements that could potentially reduce the scope of Article 28. It recognises these rights only insofar as they are exercised ‘in  accordance with Union law and national laws and practices’ (emphasis added). It recognises the right of collective bargaining only ‘at the appropriate levels’. The notion ‘at appropriate levels’ refers to ‘the levels laid down by Union law or by national laws and practices, which might include the European level when Union legislation so provides’. These potential ‘appropriate’ levels are manifold. At European level, they range from the level of industrial relations at EU institutions, to cross-sectoral levels, over sectoral levels to transnational company levels. At the level of the Member States, appropriate levels range from cross-sectoral levels, over sectoral levels to company levels. This distinction is not linked to the distinction between the institutional actors to which the Charter provisions are addressed. Article 28 CFREU does not clarify the link between the two specific rights it covers (collective action and collective bargaining), neither does it relate these rights to a comprehensive or overarching right indicated in the rubrica of Article 28.

13 See Art 155(2) TFEU. 14 https://www.fonction-publique.gouv.fr/files/files/europe_et_international/accord-CSDS21decembre12015.pdf. 15 See the Preamble to the Pillar, Recital 14.

Article 28  469 B.  Relationship to Other Provisions of the Charter Title IV, related to Solidarity, does not mention an essential legal prerequisite of a system of industrial relations, id est the right of everyone to form and to join trade unions for the protection of his or her interests. Such a right has been enshrined in Article 12 CFREU, which is part of Title II on Freedoms. Title IV does enshrine another right which is at the heart of industrial relations: the right to information and consultation (Article 27 CFREU). The holding of these rights is spelled out differently (workers or their representatives). Compared with the structure of the European Social Charter, there is thus a tremendous gap between recognition of the right to organise (Article 12) under the heading of Freedom and the recognition of the right to collective bargaining and collective action (Article 28). Whereas in the (Revised) ESC the posterior recognition of the right to information and consultation might explain why the latter is mentioned at the end of the instrument, in the CFREU the right to information and consultation is recognised prior to the right of collective bargaining and action. The fact that the right to organise has not been integrated into the Solidarity title can easily be explained by the fact that Article 12 CFREU has a generic ‘civil and political’ character, as well as a specific social character. All in all, the situation is better than in the EPSR Recommendation, which in fact completely omits any reference to the right to organise.16 More importantly, this gap might provide a unique opportunity to limit the impact of the Protocol on the Application of the Charter to Poland and the United Kingdom.17 In a strict reading this Protocol suggests that the right to collective bargaining and action are not judicially cognisable at all in both Member States. However, this limitation only covers the rights enshrined in Chapter IV, a contrario, the right to organise is judicially cognisable. Since the right to organise should have at least the same scope as the rights granted under the ECHR,18 the right to organise also entails a right to bargain collectively and a right to collective action. Another advantage of Article 12 CFREU is related to the fact that the recognition of freedom of association and the right to organise has far fewer strings attached. It is not subjected to respect for Union law and national law and practices. The idea that the right of collective bargaining could not be seen as an aspect of ‘freedom’ or of ‘equality’ is problematic. The use of the word ‘of’ instead of ‘to’ and in French of ‘de’ (droit de négociation) seems to suggest that

16 Klaus Lörcher, ‘Die Europäische Säule Sozialer Rechte – Rechtsfortschritt oder Alibi?’ (2017) Arbeit und Recht 390. 17 Although the relevance of the so-called opt-out has already been reduced by CJEU, 21 December 2011, Joined cases C-411/10 and C-493/10, NS v Secretary of State for the Home Department and ME and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform. 18 Cf Art 52 (3) CFREU.

470  Filip Dorssemont and Marco Rocca c­ ollective bargaining constitutes essentially a freedom granted to trade unions.19 In a number of national traditions, this tends to be associated with the idea of (collective) autonomy.20 The recent introduction of this notion into Article  152 TFEU bears witness to this legal tradition. The right of collective bargaining entails an obligation for public authorities to refrain from interfering in the process of negotiations. The voluntary character of the process of bargaining has indeed been stressed by the Committee on the Freedom of Association.21 This voluntary character in fact complicates the identification of positive obligations for governmental actors, let alone for employers and their organisations stemming from recognition of the right to collective bargaining. The latter is particularly true if no agreements are concluded or, worse, if no negotiations take place. The recognition of the right of collective bargaining will not oblige employers and their organisations to start negotiations. The only way to force them to do so is recourse to collective action, or the threat of such an action. In one exceptional scenario, EU law has introduced a legal pressure to start negotiations. If a central management refuses to start negotiations with a special negotiating body to form a European Works Council (EWC),22 the subsidiary requirements will enter into force. It is also well known that collective agreements seek to create a level playing field and prevent social competition between workers that could level down their remuneration. Hence, it is a lever for equality, as well as a means to ensure a right to fair and just remuneration, which has unfortunately not yet been explicitly enshrined in the CFREU.23 In this sense, the rubrica of Article 31 CFREU does not match its substance. It ignores the issue of wages and remuneration, although it pretends to address fair and just working conditions. Seen in this perspective, the EPSR constitutes progress, insofar as it puts a right of workers to fair wages that provide for a decent standard of living at the fore.24

19 In the same vein, see also the idea that there is no right to become a member of an association. There is no ‘droit à l’association’, just a ‘droit d’association’, as was highlighted by the ECtHR in Associated Society of Locomotive Engineers and Firemen v United Kingdom, 27 February 2007, App No 11002/05. 20 See Andrea Iossa, Collective Autonomy in the European Union: Theoretical, Comparative and Cross-border perspectives on the Legal Regulation of Collective Bargaining, Doctoral Dissertation, Lund, 2017. 21 ILO, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 2006, § 925 and http://www.ilo.org/dyn/normlex/ en/f?p=NORMLEXPUB:70002:0::NO:70002:P70002_HIER_ELEMENT_ID,P70002_HIER_ LEVEL:3932024,1, nrs 1313–15. 22 See Art 7 Directive 2009/38. 23 But see the contribution by Lörcher on Article 31 in this book (ch 24). 24 See Point 6 of the EPSR. Lörcher and Schömann have criticised the absence of a link between the notion of minimum wages and the idea of fairness: Klaus Lörcher and Isabelle Schömann, ‘The European Pillar of Social Rights: Critical Legal Analysis and Proposals’ (2016) ETUI Report 139, 62–63.

Article 28  471 C.  Relationship to Other Relevant Instruments i.  EU Instruments The Community Charter of Fundamental Social Rights of Workers of 1989 (Community Charter) recognised the right ‘to negotiate and conclude collective agreements’ in Article 12 and the right to take collective action in Point 13. Interestingly, this instrument affirmed that these rights had to respect the conditions laid down, respectively, by ‘national legislation and practice’ or ‘national regulations and collective agreements’, whereas no mention was made about the limitations imposed by EU (Community) law. Article 153(5) TFEU has explicitly excluded the use of the competences under the Social Policy Title for regulating the right to strike and lock out. It is doubtful whether other legal bases under the TFEU could be an appropriate tool for the adoption of regulations or directives.25 In our view, the notion of strike or ‘grève’ and ‘lock out’ needs to be interpreted as a pars pro toto. It should be understood as any means of collective action. The lack of any EU competence in the area of strike law has not prevented the EU legislator from making reference to the neutrality of some EU instruments with regard to the right or freedom to strike as recognised in the EU Member States (Monti I Regulation,26 Services Directive27 and Regulation 1176/2011).28 These so-called Monti clauses will not, however, shield the right to strike from the fundamental economic freedoms as recognised in the TFEU.29 However, they might be taken into consideration in case the CJEU balances human rights and fundamental economic freedoms. The issue of collective bargaining has not been excluded from EU competences. It has not been listed in Article 153(5) TFEU. As far as cross-sectoral and sectoral European social dialogue is concerned, a constitutional and 25 See the Opinion of AG Mengozzi (§ 57) in Laval: ‘If the effectiveness of Article 137(5) EC is to be upheld, the Community institutions could not of course resort to other legal bases in the Treaty in order to adopt measures designed to approximate the laws of the Member States in this field’. 26 Council Regulation (EC) No 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States. 27 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market. 28 Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances. See also Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services. 29 Andreas Bücker, Niklas Bruun and Filip Dorssemont, ‘Balancing Fundamental Social Rights and Economic Freedoms: Can the Monti II Initiative Solve the EU Dilemma?’ (2012) International Journal of Comparative Labour Law and Industrial Relations 279–306; Marco Rocca, ‘The Proposal for a So-called Monti II Regulation on the Exercise of the Right to Take Collective Action Within the Context of the Freedom of Establishment and the Freedom to Provide Services’ (2012) 3(1) European Labour Law Journal 19–28. For a more positive appraisal of the Proposal, see the two anonymous Adoptive Parents, ‘The Life of a Death Foretold: The Proposal for a Monti II R ­ egulation’ in Mark  Freedland and Jeremias Prassl, Viking, Laval and Beyond (Oxford, Hart Publishing, 2014) 95–109.

472  Filip Dorssemont and Marco Rocca embryonic framework has been put in place, ever since the Maastricht Treaty (cf ­Articles 154 and 155 TFEU). No specific legislative framework has been put in place for transnational company agreements. Neither has the European legislator ever tried to harmonise the various systems of collective bargaining at the level of the Member States. Such an exercise might indeed run counter to the obligation of the European Union to respect the ‘diversity of the national systems’ (Article 152 TFEU). However, some provisions of EU directives are related to selected issues of collective agreements. Two EU directives tend to enhance the coverage of collective agreements in respect of employers who are neither signatory to these agreements nor affiliated to a signatory organisation. The Transfer of Undertaking Directive (1977) obliges the transferee to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Furthermore, the Posting of Workers Directive 96/71/EC obliges the service provider to apply a specific number of employment conditions enshrined in collective agreements or arbitration awards that have been declared universally applicable for the building sector (building work related to the construction, repair, upkeep, alteration or demolition of buildings). In our view, these measures tend to promote and encourage the conclusion of collective agreements, although they might always be challenged nowadays as a restriction of the negative freedom of association.30 EU law has also restricted a problematic use of collective autonomy amounting to discriminatory clauses in collective ­agreements.31 ii.  Council of Europe Instruments According to the Explanations (2000–03) both the ESC and the case law of the ECtHR related to Article 11 have been a source of inspiration for the drafting of Article 28 of the Charter. Though this influence is evident, some differences can be highlighted between Article 6 ESC and Article 28 CFREU. Article 6 ESC merely mentions an obligation ‘to promote, where necessary and appropriate a machinery for voluntary negotiations … with a view to the regulation of terms and conditions of employment by means of collective agreements’. In the rubrica, Article 6 ESC does not refer to a right of collective bargaining, but to

30 See within the European Union, CJEU, C-499/04, Werhof. Per analogiam within the Council of Europe, albeit not successful: ECtHR, 2 June 2016, App No 23646/09, Geotech Kancev Gmbh v Germany. 31 Directives 2000/43 (art 14), 2000/78 (art 16), 2006/54 (art 23), as well as Regulation 492/2011 (art 7). See also CJEU, C-297/10 and C-298/10, Hennigs and Mai.

Article 28  473 a right to bargain collectively. The CFREU innovates by introducing a right to negotiate and conclude collective agreements and it is mute on the voluntary character of the process. In our view, this voluntary character can be deduced from the semantics of its rubrica (the right of collective bargaining/droit de négociation collective). Neither is there a reference in Article 28 to a duty to promote the establishment and to the use of appropriate machinery for conciliation and voluntary arbitration. Contrary to the CFREU, the right to collective action has been explicitly framed in Article 6 ESC as an aspect of the right to bargain collectively. The latter does not suggest that the right to collective action can be exercised only within the process of negotiating a collective agreement.32 Hence, the CFREU does not link the right to take collective action to the right to collective bargaining. The conflict of interests which is mentioned should not per se be situated within a context of bargaining, neither should it, in our view, oppose employers and trade unions. Another difference is linked to the issue of holdership. The ESC makes it abundantly clear that the right to bargain collectively on the employee side is exercised by workers’ organisations, whereas the right to collective action is held by workers and employers. The CFREU has blurred this differentiated approach to holdership by mentioning workers, employers and their organisations in an indiscriminate way.33 Last but not least, whereas the ESC explicitly states that the right of workers and employers to collective action is subject to obligations that might arise out of collective agreements previously entered into, the CFREU does not mention collective agreements as a potential source for restricting that right. Such a source could be deduced from the reference to ‘laws and practices’ (emphasis added). However, there is an essential difference. Whereas, under the ESC, restrictions stemming from collective agreements do not need to pass the test of Article G, there is no reason to assume that conventional restrictions of the right to take collective action need to be treated differently from national laws under Article 52(1) CFREU. The Explanations of 2003 stated that ‘the right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR’. It seems to us that this statement needs to be formally mitigated. At present the ECtHR has never stated that the right to collective action contrary to the right of collective bargaining would be an essential means to defend workers’ interests. The most ambitious statement refers to ‘the most powerful means’.34 However, there can 32 See Filip Dorssemont, ‘The Right to Bargain Collectively’ in Niklas Bruun, Klaus Loercher, Isabelle Schoemann and Stefan Clauwaert, The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) 272 and Digest 53. 33 In the same vein, see Rodière on the fact that the provision of the CFREU is mentioned solely at the end: Pierre Rodière, ‘Article 28’ in F Picod and S Van Drooghenbroeck, Charte des droits ­fondamentaux de l’Union européenne (Bruxelles, Bruylant, 2018) 640. 34 See ECtHR, 27 November 2014, App No 36701/09, Hrvatski liječnički sindikat v Croatia, para 10.

474  Filip Dorssemont and Marco Rocca be no doubt that restrictions to the right to collective action need to pass the test of Article 11(2) ECHR. iii.  ILO Instruments The adoption of the Declaration of Philadelphia by the ILO’s General Conference (1944) was innovative insofar as it highlighted a human rights dimension underlying the ILO’s aims and purposes. Supiot has qualified the Declaration of Philadelphia as the first International Human Rights Declaration to have universal scope.35 The Declaration of Philadelphia introduced ‘the right of collective bargaining’ (le droit de négociation collective) into international law. The 26th International Conference recognised ‘the solemn obligation of the International Labour Organization to further among the nations of the world programmes’ which would achieve ‘the effective recognition’ of that right. The semantics of this Declaration, which has been annexed to the Constitution, need to be considered carefully. The text of the Declaration does not provide guidance on the scope ratione personae of the right of collective bargaining. The text is not conclusive regarding the question of whether it applies to the private and the public sector alike. More importantly, the Declaration does not refer to a right to collective bargaining nor to a droit à la négociation collective. The effective recognition of the right of collective bargaining is construed in a programmatic manner. It requires Member States to adopt programmes that will achieve the realisation of this right. The distinction between a right to and a right of (droit de or droit à) is important. A right to collective bargaining suggests that there is an enforceable right to gain access to the bargaining table, which could be labelled a duty of a bargaining partner to open negotiations. A right of collective bargaining suggests that there is no such right. It suggests that there is an area of freedom given to bargaining partners to enter or not to enter into negotiations. Public authorities are asked not only to respect that freedom, but to promote it. The overall idea is that the bargaining process is of a voluntary nature. This voluntary nature should not be seen as a restriction of the right of collective bargaining. On the contrary, it should be seen as quintessential for safeguarding such a right. In this respect, it is appropriate to construe the right of collective bargaining as a freedom. The principle of the right to collective bargaining has been elaborated in ILO Convention No 98 concerning the Application of the Principles of the

35 Alain Supiot, L’esprit de Philadelphie (Paris, Seuil, 2010) 9: ‘La première Déclaration internationale des droits à vocation universelle’. For a more comprehensive study of the role of the ILO in the field of ‘human rights and rights at work’ from a historical perspective: Gerry Rodgers, Eddy Lee, Lee Swepston, Jasmine Van Daele, The ILO and the quest for social justice (Geneva, International Labour Office, 2009) 37–91.

Article 28  475 Right to Organise and to Bargain Collectively (1949). This Convention fills an ­important gap insofar as the previous ILO Convention No 87 concerning Freedom of Association and Protection of the Right to Organise does not address the issue of collective bargaining in an explicit way. Article 3 Convention No 87 formulates a principle of trade union autonomy in a very broad manner. It indicates that workers’ and employers’ organisations shall have the right to organise their activities and to formulate their programmes. Since these organisations need ‘to further and defend the interests of workers or of employers’,36 there is no reason why the freedom of collective bargaining would not be covered by this principle. In one scenario such a duty to bargain seems less problematic at first sight. Thus, the question arises whether a ratifying Member State that is under a duty to encourage and promote a machinery for voluntary negotiations can refuse to enter into bargaining with its staff. Article 6 of the ILO Convention elucidates that Convention No 98 ‘does not deal with the position of public servants engaged in the administration of the State’. The ILO has adopted a more specialised Convention to deal with labour relations in the public sector. Convention No 151 (1978) allows for alternatives to collective bargaining in the public sector. Negotiations are not the only technique available to determine terms and conditions of employment or to deal with disputes arising out of the determination of such terms and conditions.37 As far as the relation between bargaining and disputes is concerned, ILO Convention No 151 refers to ‘mediation, conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved’. It is, however, important to construe the notion of public servants in a narrow way.38 In sum, there is a distinction between the scope ratione personae of ILO  Convention No 87 and ILO Convention No 98. ILO Convention No 98 does not provide much guidance regarding the scope of the notion of ‘public ­servants’. Apparently, the armed forces and the police are not per se considered to be public servants, since Article 5 ILO Convention No 98 provides for a special rule. The (relatively) recent Declaration on Fundamental Principles and Rights at Work (1998) underlined the fundamental character of the freedom of association and the effective recognition of the right to bargain collectively. According to the Declaration, all Member States of the ILO have an obligation arising from the very fact of membership of the Organization to promote and to realise in good faith and in accordance with the ILO Constitution the principles

36 Art 10 ILO Convention No 87. 37 Arts 7 and 8 ILO Convention No 98. 38 CEACR, International Labour Conference 81st Session, 1994, General Survey of the Reports on the Freedom of Association and and the Right to Organize Convention (No 87), 1948 and the Right to Organize and Collective Bargaining Convention (No 98), 1949, http://www.ilo.org/public/libdoc/ ilo/P/09661/09661(1994-81-4B).pdf.

476  Filip Dorssemont and Marco Rocca c­ oncerning both rights, irrespective of ratification of the relevant ILO Conventions No 87 and 98.39 It is well known that neither fundamental ILO Conventions nor the Constitution explicitly provide for the recognition of a right to strike. However, several ILO instruments do refer in an explicit way to ‘strike’, in an obvious attempt to protect effective recourse to strike action.40 Furthermore, the supervisory bodies have recognised the right to strike as a ‘corollaire indissociable’ of freedom of association. iv.  UN Instruments Ever since the adoption of the Universal Declaration on Human Rights (UDHR 1948), two distinct covenants have been adopted. This bifurcation of fundamental rights is based on an alleged distinction between civil and political rights, on one hand, and economic, social and cultural rights, on the other hand. This distinction is, however, blurred by the fact that freedom of association features in both covenants.41 Whereas the ICCPR recognises freedom of association in a generic way, the ICESCR only recognises the freedom of association in a more specific way, id est as the right of everyone to form trade unions and to join the trade union of his or her choice for the promotion and protection of his or her economic and social interests. Article 22(1) ICCPR, however, elucidates that this generic recognition includes the right to form and join trade unions for the protection of his or her interests. Neither the UDHR nor the ICCPR nor the ICESCR contain a provision that explicitly recognises a right to bargain collectively. The fact that both covenants are mute on the issue cannot be used as an argument authorising States Parties to ILO Convention No 87 to take legislative measures or apply the law in such a manner as would prejudice the guarantees provided for in that convention. In a strict reading, such a clause is not very helpful for upholding the right to bargain collectively. Indeed, ILO Convention No 87 is mute on the issue of the right to bargain collectively. Furthermore, the clause makes no reference to Convention No 98. The question does arise, however, whether a right to bargain collectively is inherent in the recognition of the right to form and join trade unions. The explicit objective of such a right, id est the protection of workers’ interests, might serve as a lever for such a teleological interpretation. In this respect, the

39 Under the Follow-up to the Declaration, the Director-General has issued a Global Report (2008) on the issue of freedom of association, see: http://www.ilo.org/wcmsp5/groups/public/---dgreports/--dcomm/documents/publication/wcms_096122.pdf. In the same vein, the mandate of the Freedom of Association Committee (ILO) is not limited to the countries that have ratified ILO Conventions Nos 87 and 98. 40 See Convention No 105 (art 1), Recommendation No 92 (Art 7) and Recommendation No 188 (Art 6). See also ITUC, The Right to Strike and the ILO, https://www.ituc-csi.org/the-right-to-strikeand-the-ilo?lang=fr. 41 See Art 22 (1) ICCPR and Art 8 (1) ICESCR.

Article 28  477 absence of a right to bargain collectively might deprive the recognition of the right to organise of its effet utile. The most authoritative source to assess this question is the body of reports produced by the supervisory bodies monitoring compliance with both covenants. The ICCPR is being monitored by the UN Human Rights Committee. The ICESCR is being monitored by the Committee on Economic, Social and Cultural Rights. As highlighted by Macklem, both committees have considered the right to bargain collectively to fall within the ambit of the recognition of the right to organise.42 II. CONTENT

A.  General Observations The travaux préparatoires of Article 28 CFREU make it abundantly clear that the recognition of the right to strike was far from evident at the end of the twentieth century. Veneziani has highlighted the controversial character of this recognition by examining how this right popped up and was subsequently withdrawn (ever since Convent 18) in successive drafts of the provision, prior to reappearing in Convents 47, 49 and 50.43 Braibant has indicated that the explicit inclusion of the right to strike near the end of the Travaux préparatoires was the result of ‘vigoureuses protestations des syndicats’.44 At the very end of the Convention that drafted the Charter, the Presidium added some explanations. The most interesting explanation relates to transnational collective actions. It states: ‘Collective action, including strike action, comes under national laws and practices, including the question of whether it may be carried out in parallel in several Member States.’ The Presidium of the Convention on the Future of Europe amended this part of the explanations as follows: ‘The modalities and limits for the exercise of collective action, including strike action, come under national laws and

42 Patrick Macklem, ‘The Right to Bargain Collectively in International Law: Workers’ Right, Human Right, International Right?’ in Phil Alston (ed), Labour Rights as Human Rights (Oxford, Oxford University Press, 2005) 71–74. 43 Bruno Veneziani, ‘Right of Collective Bargaining and Action (Article 28)’ in Brian Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 321–22. See also Maria Vittoria Ballestrero, Antonio Lo Faro and Orsola Razzolini, ‘Commento all’Art. 28’ in Roberto Mastroianni et al (eds), Carta dei diritti fondamentali dell’Unione Europea (Milano, Giuffré, 2017) 527; Johannes Heuschmid, ‘Der Arbetskampf im EU-Recht’ in Wolfgang Dâubler, Arbeitskampfrecht (Baden-Baden, Nomos, 2017) 164–66 and Jürgen Meyer, Charta der Grundrechte der Europäischen Union (Baden-Baden, Nomos, 2011) 420–22. 44 Guy Braibant, La Charte des droits fondamentaux de l’Union européenne (Paris, Seuil, 2001) 176–78.

478  Filip Dorssemont and Marco Rocca practices, including the question of whether it may be carried out in parallel in several Member States.’ Bercusson criticised this explanation, arguing that a collective action carried out in parallel in several Member States ‘engages precisely the transnational dimension of collective action in the European Single Market’ and that it was hence contradictory with the status of a fundamental right of European collective action to ‘confine it to national laws and practices’. He argued that it needs to be addressed at EU level, ‘not least by the European Court of Justice’.45 Whereas explanations are supposed to clarify the text they explain, this explanation seems to blur it. In a strict reading, this explanation seems to suggest that the Charter does not grant a right to have recourse to some kind of transnational collective action. Indeed, it states that the question of whether such a collective action can be carried out in parallel states comes under national laws and practices. At first sight, this is a counterintuitive formula. Since Article 28 recognises that the right to collective action is recognised at the appropriate levels, it seems natural to assume that such levels referred to in the Charter of Fundamental Rights of the European Union at least include the transnational level. Furthermore, it is contradictory to state that the issue of ‘modalities and limits’ is regulated by national law and practices, whereas the venomous coda of the explanations seems to affect the very existence of the recognition of a right to have recourse to collective action. It transcends the issue of modalities and limitations. In our view, the coda of the explanations needs to be interpreted as a reference to private international law. It could also be construed as stating the inevitable consequence of the lack of EU legal competence to legislate on the issue of strikes. In both interpretations, the observation is confusing. Thus, it cannot be denied that private international law has ceased to be part of the exclusive realm of the Member States. Important parts of private international law have been harmonised. A typical example is the law applicable to extra contractual obligations arising out of collective actions, including strikes.46 Furthermore, the lack of legal competence of the EU has never prevented the CJEU from imposing restrictions on the exercise of collective actions that were unprecedented in the law of some Member States and at variance with obligations stemming from international and European human rights instruments.47 In sum, the idea that the right to collective action would be regulated exclusively by national law and

45 Brian Bercusson, ‘The EU Charter of Fundamental Rights and the Constitution of the European Union’ in Brian Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 499–500. 46 Art 9 Rome II Regulation. See on this point Olaf Deinert, International Labour Law under the Rome Conventions (Baden-Baden, Nomos, 2017) 392–400; Filip Dorssemont and Aukje Van Hoek, ‘Collective Action in Labour Conflicts under the Rome II Regulation (Part 1)’ (2011) 1 European Labour Law Journal 48–75; Filip Dorssemont and Aukje Van Hoek, ‘Collective Action in Labour Conflicts Under the Rome II Regulation (Part 2)’ (2011) 2 European Labour Law Journal 213–42. 47 See below the cases of Viking and Laval.

Article 28  479 practices seems to be wrong. Taken to its extreme limits, it would suggest that the CJEU is incompetent to restrict the right to strike as recognised in a number of Member States based upon conflicting (economic) fundamental freedoms. The EU legislator is competent to push legislation promoting conflicting freedoms, although it lacks competence to push legislation protecting and promoting the right to strike. Last but not least, it seems to suggest that there is no obligation at all for a Member State to recognise the right to collective action within the realm of EU law, as if the discretion of these states would be close to absolute. Such an assumption seems to make the recognition of the right to collective action as part of a Charter of Fundamental Rights of the European Union entirely pointless. Last but not least, the coda seems to corroborate the imbalance between the economic and the social constitution of the European Union. It goes without saying that it would be completely inadequate to state that the ‘modalities and limits for the exercise of the freedom to provide services and the freedom to conduct a business come under national laws and practices, including the question of whether it may be carried out in parallel in several Member States.’ B.  Field of Application The question arises of when EU institutions as EU institutions are bound by the Charter and when Member States are effectively implementing EU law. This was painfully relevant during the economic crisis and notably in the context of austerity measures requested by Memoranda of Understanding (MoU). In this context the legal issue has revolved mainly around the applicability of the Charter to the implementation of MoUs.48 For what matters here, it is important to point out that, during the crisis, many of the Memoranda of Understanding,49 as well as Country Specific Recommendations (CSRs),50 included reforms of systems of collective bargaining. Indeed, at the onset of the crisis, the Commission seemed to have decided that the ‘appropriate level’ for collective bargaining in EU Member States was the company.51 This has led to a general tendency towards decentralisation of collective bargaining across the Member States.52 Thus, reforms of collective bargaining implementing a Memorandum of Understanding were enacted in Romania, Greece and Portugal. Italy and Spain 48 See Aristea Koukiadaki, ch 6 in this volume. 49 See Torsten Schulten and Torsten Müller, ‘A New European Interventionism? The Impact of the New European Economic Governance on Wages and Collective Bargaining’ in David Natali and Bart Vanhercke (eds), Social Developments in the EU 2012 (Brussels, ETUI-OSE Publications, 2013) 181–214. 50 See Stefan Clauwaert, ‘The Country-specific Recommendations (CSRs) in the Social Field’ (2016) 1 ETUI Background Analysis. 51 European Commission, ‘Labour Market Developments in Europe 2012’ (2012) European Economy 5, 103–04. 52 See Aristea Koukiadaki, Isabel Távora and Miguel Martínez Lucio (eds), Joint Regulation and Labour Market Policy in Europe During the Crisis (Brussels, ETUI, 2016).

480  Filip Dorssemont and Marco Rocca in their turn introduced a reform of collective bargaining following the ‘secret’ ECB letters. Belgium received CSRs going in the same direction. The case of Greece stands out as particularly extreme: not only was priority granted to company agreements over sectoral ones, but simple ‘associations of workers’ (representing three-fifths of the workforce) were also allowed to conclude collective agreements at company level.53 The Report of an ILO High Level Mission of 2011 expressed its concerns regarding the possibility for such ‘associations of workers’ to conclude valid collective agreements.54 In 2012 the Committee on Freedom of Association reviewed the Greek situation regarding Conventions Nos 87 and 98 and further criticised this arrangement, noting in particular that such associations would not offer the same guarantees of independence as trade unions.55 The CFA also noted ‘important and significant interventions in the voluntary nature of collective bargaining’ going against the very principle of the ‘inviolability of freely concluded collective agreements’.56 Concerns regarding ‘associations of workers’ were also expressed in the 2014 Report of the CEACR, which also pointed to statistics showing that a staggering prevalence of company-level collective agreements concluded with said associations of workers provided for wage cuts.57 None of this made its way to the Court of Justice, however.58 In the context of economic governance, it should also be noted that Regulation 472/2013,59 a part of the so-called ‘Two Pack’, provides that the ‘draft macroeconomic adjustment programme shall fully observe Article 152 TFEU and Article 28 of the Charter of Fundamental Rights of the European Union’. At the level of secondary legislation it is thus confirmed that any of EU measures based on this Regulation must be in full conformity with inter alia Article 28 CFREU. C.  Specific Rights and Specific Questions As already indicated, Article 28 CFREU deals with two distinct and separate rights: the right to bargain collectively and the right to collective action.

53 Law No 4024/2011. 54 Report on the High Level Mission to Greece (Athens, 19–23 September 2011) by the ILO, paras 304–07. 55 ILO Governing Body, 316th Session, Geneva, 1–16 November 2012, 365th Report of the Committee on Freedom of Association, para 998. 56 ibid, paras 994–95. 57 ILO (ed), International Labour Conference, 103rd Session, 2014, Report of the CEACR, p 112. 58 As also highlighted by Ballestrero, Lo Faro and Razzolini (n 43) 541. 59 Art 7 Regulation (EU) No 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the euro area experiencing or threatened with serious difficulties with respect to their financial stability.

Article 28  481 i.  Right to Bargain Collectively a.  The EU Institutions as Employers The legal Framework for Industrial Relations in the major European institutions of the European Union is still enshrined in Regulation No 31 (EEC), 11 (EAEC), which has been amended many times.60 The Regulation constitutes a unilateral and common framework for industrial relations within some European institutions of the European Union. The Regulation provides evidence of a dualistic approach to the issue of workers’ representation. Article 24 b) recognises that ‘[o]fficials shall be entitled to exercise the right of association; they may in particular be members of trade unions or staff associations of European officials’. These Regulations are not applicable to employees of the ECB. Article 36 of Protocol No 4 on the Statute of the ­European System of Central Banks and of the ECB indicates (annexed to the TEU) provides that the ‘Governing Council, on a proposal from the Executive Board, shall lay down the conditions of employment of the staff of the ECB’. Recognition of freedom of association in the Regulation is preceded by provisions related to the establishment of a Staff Committee (Article 9 Staff Regulations). Furthermore, Article 10 b) explicitly states that trade unions and staff associations ‘shall act in the general interest of the staff, without prejudice to the statutory powers of the staff committees’. ‘The Staff Committee shall represent the interests of the staff vis-à-vis their institution’ (Article 9(3) Staff Regulations). Article 10 b) empowers the Commission to consult representative trade unions and staff associations on such proposals. The provision has been drafted as conferring a discretionary power on the Commission. The Staff Regulations do not provide any guidance on objective and pre-established criteria to define which trade unions and staff associations can be considered to be ‘­representative’. At first sight, the Staff Regulations do not seem to provide scope for collective bargaining as a means to define applicable working conditions. This picture needs to be mitigated. Due to a recent amendment of the Council Regulation,61 a new Article 10 c) indeed provides for the possibility for each institution to conclude collective agreements with its representative trade unions and staff associations. In at least two cases, an attempt has been made to mobilise Article 28 CFREU in order to mitigate the unilateral character of the procedures determining the working conditions at the ECB. 60 OJ P 45, 14.6.1962, p 1385. For a consolidated version: https://www.europol.europa.eu/ publications-documents/staff-regulations-of-officials-and-conditions-of-employment-of-other-­ servants-of-european-economic-community-and-european-atomic. 61 Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 L 124 1 27.4.2004.

482  Filip Dorssemont and Marco Rocca In the first case, Heath v ECB,62 the Civil Service Tribunal had to consider the request of a retired employee of the ECB who challenged the annual adjustment of his retirement benefits for 2010. This case is relevant because the decision – which has been criticised – was adopted after the Lisbon Treaty came into force. The pension system of the ECB adopted on the basis of Article 36(1) of Protocol No 4 on the Statute of the European System of Central Banks and of the ECB provides that retirement benefits have to be adjusted on an annual basis. The adjustment is based either on the rate of inflation in the euro zone or on the annual adjustments of the remuneration of the staff of the ECB. One of the arguments brought forward to attack the validity of the decision concerned the very nature of the system of industrial relations at the ECB. The applicant attacked the fact that the annual adjustment of the pension benefits was decided in a unilateral way. The applicant conceded that Article 28 did not force the ECB to conclude a collective agreement with the representative trade union of the ECB. The Civil Service Tribunal ruled that neither Article 28 of the Charter nor Article 11 ECHR provides an obligation to conclude a collective agreement, nor to introduce a bargaining procedure. The Civil Service Tribunal paid formal tribute to Article 6(2) of the ESC, which enshrines an obligation ‘to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements’. According to the Civil Service Tribunal this obligation does not entail an obligation to introduce a bargaining procedure. It was construed as a provision merely ‘encouraging’ such procedures. Nor could such an obligation be deduced from Article 11 ECHR. The Civil Service Tribunal in Heath v ECB does not, as such, dispute explicitly that the Charter was indeed applicable to employees of the ECB. It seeks to interpret the substantive rather than the personal scope of the right to collective bargaining. The Court suggests that the Charter is applicable to EU institutions in foro interno and that the staff enters into the ambit of the notion of ‘­workers’. The litmus test resides in the substantive scope of the obligation to respect the right to collective bargaining. The approach of the Civil Service Tribunal in its rejection of an obligation to conclude a collective agreement is consistent with an emphasis on the voluntary character of the bargaining process. 62 CST, F-121/10, M. Heath v. BCE, §§ 110-123. The appeal was dismissed by the General Court (Tribunal), 18 June 2013, Heath v ECB, T-645/11P. See also for a comment: Filip Dorssemont, ‘The Constitutional Court of Justice of the European Union and the Right of Collective Bargaining: Timeo danaos et dona ferentes. Part II’ in Liber amicorum Bruno Veneziani (Bari, Cacucci editore, 2012) 113–14 and Mélanie Schmitt, ‘Evaluation of EU Responses to the Crisis with References to Primary Legislation (European Union Treaties and Charter of Fundamental Rights)’ in Niklas Bruun, Klaus Lörcher and Isabelle Schömann (eds), The Economic and Financial Crisis and Collective Labour law in Europe (Oxford, Hart Publishing, 2014) 224–26.

Article 28  483 The Civil Service Tribunal engages in an intertextual interpretation of the Charter, but it completely disregards ILO instruments. The very narrow interpretation the Court gives to Article 6 § 2 ESC is far from evident. In fact, the confrontation of the ILO instruments with the ESC makes this critique even more poignant. Thus, Article 4 ILO Convention No 98 imposes an obligation on the ratifying States to ‘encourage and promote the full development and utilisation of machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations’ (emphasis added). The juxtaposition of encouragement and promotion is meaningful. In its interpretation of ­Article 6 § 2 ESC, the Civil Service Tribunal construes the obligation to promote as an obligation to encourage. In sum, the tribunal seems to misinterpret the scope of the notion ‘promotion’. This approach was recently confirmed by the Civil Service Tribunal in a second staff case in which the disciplinary regulations at the ECB adopted unilaterally have been challenged.63 On appeal, the General Court (Tribunal) refused to repeal the former ­judgment.64 However, it took a very different approach. On appeal, the General Court ruled that the issue at stake was outside the purview of bargaining, because the conflict was merely about the application of a pre-established grid. Though the object of collective bargaining can relate to any issue of mutual concern to employers and workers, it is traditionally related to working conditions, especially wages. As far as the ECB is concerned working conditions and wages are set in the Staff rules. In a subsequent development, annual general adjustment of the salaries fixed by the Staff rules has been introduced. Involvement of the trade unions in the setting of working conditions and the basic salary structure is not entirely obvious, because the bargaining partner at the management level (the  ECB) is supposed to respect the financial constraints of the bodies financing the ECB. Though these bodies are represented in the Governing Council, the latter is also composed of members who are independent of the central banks. As far as the annual general adjustment of the salaries is concerned, the adjustment is construed as a mathematical exercise to adapt the basic salary structure to the ‘weighted average development in gross annual basic salaries at the comparator organisations’. Any dispute surrounding the implementation of the ECB general salary adjustment methodology can hardly be described as a conflict of interests. It needs to be viewed as a ‘legal conflict’, id est a conflict surrounding the interpretation and application of the ECB’s internal law. Hence, in the strict meaning of the word, there is no scope for bargaining when the consultation on the annual adjustment takes place. Furthermore, as far as the general level of wages is concerned, the question arises of whether the 63 CST, 17 March 2015, F‑73/13, AX v ECB. 64 CJEU, 18 June 2013, T-645/11 P, Heath v ECB. See especially § 160: ‘Dès lors, les droits et obligations en cause étaient déjà suffisamment déterminés par la méthodologie prévue à l’article 17, paragraphe 7, de l’annexe III des conditions d’emploi’.

484  Filip Dorssemont and Marco Rocca Governing Council has sufficient autonomy and a mandate to adopt decisions that have budgetary implications for the entities financing the ECB. b.  EU Institutions and Member States as Institutional Actors of the EU Article 28 CFREU is also addressed to all European institutions not just as employer but in their capacity as institutional actors of the European Union. Although Article 153 provides some leeway to harmonise collective bargaining systems, the EU legislator has not produced much legislation on collective bargaining. A number of EU directives touch on the issue, without seeking to harmonise collective bargaining systems. Because these systems inevitably affect the issue of workers’ representation, unanimity is required.65 Furthermore, any such legislation cannot encroach upon the freedom of association or the issue of pay.66 Last but not least, there is a general obligation for the Union to respect the diversity of national systems.67 It is worth assessing the extent to which the Court of Justice has prefigured recognition of the right to bargain collectively as a general principle of EU law. The record of the Court of Justice with regard to freedom of collective bargaining is troublesome. In Albany the Court did not take the freedom of collective bargaining into consideration in order to assess the question of whether competition rules could restrict the validity of collective agreements declared universally applicable.68 The Advocate General Jacobs denied that the freedom of collective bargaining could be deduced from the recognition of freedom of association as a general principle of EC law.69 Instead, he argued that the ‘collective bargaining process, like any other negotiation between economic actors, is … sufficiently protected by the general principle of freedom of contract’. In our view, such an approach is questionable. It neglects the quintessential difference between individual and collective autonomy.70 In UEAPME, the then Court of First Instance (now General Court) interpreted the Maastricht Agreement on Social Policy as precluding an enforceable right to take part in the negotiations which could amount to an agreement concluded at community level.71 The Court construed the bargaining process as being based on the ‘mutual willingness to initiate the process provided for in Article 4 of the Agreement’ (emphasis added). In sum, the Court highlighted the voluntary character of the bargaining process based on mutual recognition of



65 See

Art 153(2)(b) TFEU. Art 153(5) TFEU. 67 See Art 152 TFEU. 68 See CJEU, C-67/96, Albany International BV v Stichting Bedrijfspensioenfondstextielindustrie. 69 Opinion of AG Jacobs in Albany, para 160. 70 ibid, para 161. 71 CFI, T-135/96, UEAPME v Council of the European Union. 66 See

Article 28  485 the social partners. The voluntary nature of the bargaining process is consistent with the case law of the ECtHR, as well as with the approach to freedom of collective bargaining under the ESC. Unfortunately, the Court did not refer to this conceptual framework. In Commission v Germany, the Court could not avoid the question of whether the right to bargain collectively constitutes a general principle of EU law.72 The Commission had started an infringement procedure against the German Republic because local authorities and local authority undertakings had awarded service contracts in respect of occupational old-age pensions directly, without a call for tenders at EU level. The Commission argued that this constituted a violation of Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209) and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.73 The German Republic replied that these decisions were based on collective agreements that, because of their nature and subject matter, fell outside the field of application of Directives 92/50 and 2004/18 in view of the so-called ‘Albany immunity’, which shields collective agreements from competition rules. The Court did not accept this argument and was thus forced to consider whether the application of these directives had to be balanced against the right to bargain collectively. It did recognise that the right to bargain collectively had to be recognised as a general principle of EU law. The Court in this respect referred to the fact that this right had been enshrined in Article 6 ESC and in the provisions of instruments drawn up by the Member States at Community level or in the context of the European Union, such as Article 12 of the Community Charter of fundamental social rights of workers Article 28 of the Charter.74 The Court explicitly indicated that the latter constituted an instrument to which Article 6 TEU accords the same legal value as the Treaties. This only prompted the CJEU to suggest a need to balance the fundamental economic freedoms underlying the Directives and the fundamental principle concerned. In fact, the Court relied on the status of fundamental rights to affirm its competence, on the basis of the precedents of Schmidberger75 and Omega,76

72 CJEU, 15 July 2010, C-271/08, Commission v Germany. See Phil Syrpis, ‘Reconciling Economic Freedoms and Social Rights – The Potential of Commission v Germany (Case C-271/08, Judgment of 15 July 2010)’ (2011) 40(2) Industrial Law Journal 222–29; Marco Rocca, ‘Case C-271/08, Commission v Germany [2010]’ (2011) 2 European Labour Law Journal 76–79. 73 OJ 2004 L 134, p 114. 74 See the astonishment of Rodière concerning the fact that the provision of the CFREU is mentioned only at the end: Pierre Rodière, ‘Article 28’ in Fabrice Picod and Sébastien Van ­Drooghenbroeck (eds), Charte des droits fondamentaux de l’Union européenne (Bruxelles, Bruylant, 2018) 629. 75 CJEU, C-112/00, Eugen Schmidberger, Internationale Transporte und Planzüge v Austria. 76 CJEU, C-36/02, Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn.

486  Filip Dorssemont and Marco Rocca to solve the conflict between one such right and the fundamental freedoms of the internal market. ii.  Right to Collective Action a.  EU Institutions as Employers The CJEU has never taken a progressive stance on the issue of strike action by its civil servants. In one staff case, Acton and others v Commission, the CJEU ruled that, according to a general principle of labour law, a worker on strike has no right to remuneration.77 The Court explicitly and cautiously added that that statement ‘in no way implies any decision in relation to the existence of an official’s right to strike or in relation to the detailed rules which may govern the exercise of such a right’.78 Despite the fact that the right to strike is not mentioned in the Staff Regulations, some institutions have mentioned the existence of strikes as a mere phenomenon and have put forward a set of rules in case of such an event. At the level of the European Commission, an Accord Cadre (2010) tends to regulate a phenomenon referred to as recourse to a collective refusal to work (cessation concertée du travail). It avoids the use of the work ‘strike’ (grève), as well as any reference to a ‘right’. Recourse to such collective action is, however, regulated in minute detail. The Accord Cadre designates the representative trade unions as the bodies able to adopt a decision in order to call for strike action and obliges them first to exhaust all means of social dialogue. Furthermore, they need to give notice and respect a notice period of at least five days. The Accord Cadre calls for ‘concertation’ on the list of tasks that need to be guaranteed in the event of a strike. This ‘concertation’ will take place on an ad hoc basis, following notification. The Accord Cadre highlights that these tasks are related to guarantees of the safety (sécurité) of persons and goods. Hence, they can be qualified as essential services. The persons in charge of these tasks can be required to perform these services (réquistionnement). The Accord Cadre is mute on the question of whether the Commission has the authority to request its staff members to perform those essential services, if the representative trade unions and the Commission fail to reach an agreement. At the level of the European Parliament, another Accord cadre (1990) contains a commitment on the part of all signatory parties to develop a conciliation procedure in case of a work stoppage (arrêt de travail). A Protocol annexed to the Accord describes a set of rules that to a large extent seem to prefigure the regulation at the level of the Commission highlighted above. The signatory trade unions are qualified as the sole entities able to launch a call for a strike

77 CJEU, 78 ibid,

18 March 1975, Cases 44, 46, 49/–74 (Acton and Others v Commission). para 14.

Article 28  487 and are obliged to exhaust all means to prevent such an event. The signatory trade unions are obliged to respect the notification and not to start the stoppage prior to five days following it. The cooling-off period will be used to find a solution. The said conciliation needs to be operated at the level of the Bureau of the European Parliament. Furthermore, following the notification the European Parliament and the signatory trade unions seek to define a list of tasks that have to be guaranteed. These tasks are related to the security of persons and goods. It is unclear what needs to happen if no consensus can be found regarding this issue. The ECB stands out as the only European institution making reference to the issue of strikes in its internal rules. In our view, even the explicit recognition of the right to strike in the ECB employment conditions is not without­ ambiguity. The conditions of employment are mute on the identity of the ‘organising body’; nor do they provide a procedure that specifies how the minimum services should be defined. There is a major point of difference with the rules enshrined in an Accord Cadre concluded by the European Commission. This agreement provides that obligatory functions and those performing them will have to be defined in case of strike action in a manner concerted between the Commission and the representatives of the trade unions calling for a strike. In the case of the ECB, the limitations will be determined in a more unilateral way, albeit after consultation. The only collective actor mentioned in the ECB conditions of employment is the Staff Committee. It would be extremely problematic to interpret this provision in a narrow way, as restricting the right to strike to the Staff Committee of elected workers’ representatives. Indeed, such a ‘monopoly’ would undermine the position of trade unions. Furthermore, it is important to remember that banking activities are not construed as ‘essential services’ by the ILO’s Freedom of Association Committee.79 This does not mean that some banking functions cannot be qualified standard employment relationship ‘minimum services’. However, the ILO’s Freedom of Association Committee has indicated that minimum services need to be defined on a conventional basis. In the case of a lack of consensus, the minimum services need to be defined by a judicial authority.80 b.  EU Institutions and Member States as Institutional Actors of EU 1.  The Impact of Article 153(5) TFEU on EU Legislation Due to the aforementioned exclusion of strikes (read: collective action) from EU legislative competences, it would seem consistent to assume that EU legislation would in no way deal with strikes, lock outs or collective action. This picture 79 See CFA, Report No 226, Vol LXVI, 1983, Series B, No 2, §§ 390–403. 80 See the excerpts No 612 and 613 of the 2006 CFA’s Digest. See http://www.ilo.org/dyn/normlex/ en/f?p=NORMLEXPUB:70002:0::NO:70002:P70002_HIER_ELEMENT_ID,P70002_HIER_ LEVEL:3932024,1, nr 878–79.

488  Filip Dorssemont and Marco Rocca needs to be mitigated. As already mentioned, some EU instruments have explicitly declared their neutrality in respect of the right and/or freedom to strike as recognised in Member State law. To some extent, this approach is consistent with the exclusion of regulatory competences for strikes and lockouts under EU social policy (Article 153 (5) TFEU). These so-called Monti clauses can be classified on the basis of two distinct criteria. In some instruments these clauses are integrated into the corpus of the provisions,81 whereas in others they are relegated to the recitals.82 In some instruments the neutrality of the instrument is professed in an absolute way, whereas in others the immunity of Member States law is made subject to the condition that these national provisions respect Community or Union law. With the exception of an isolated recital in the TAW Directive83 and Regulation 1176/2011,84 the freedom of collective bargaining has not given rise to similar clauses. Furthermore, the EU legislator did not consider Article 153(5) TFEU to be an obstacle to a very limited intervention in the field of private international law. Article 9 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) provides that [w]ithout prejudice to Article 4(2), the law applicable to a non-contractual obligation in respect of the liability of a person in the capacity of a worker or an employer or the organisations representing their professional interests for damages caused by an industrial action, pending or carried out, shall be the law of the country where the action is to be, or has been, taken.

The advantage of this specific rule for trade unions and or workers who might engage their extra-contractual liability is evident. The criterion of the lex locus 81 See: Art 2 Council Regulation 2679/98, OJ (1998), L 337/8; Art 1 (7) Directive 2006/123 [2006] OJ L 376/36; Art 1 (3) Regulation 1176/2011 OJ [2011] L 306/25 and Article 1 a) amended Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (Text with EEA relevance). 82 Recital 19 Directive 2008/104/EC: ‘This Directive does not affect the autonomy of the social partners nor should it affect relations between the social partners, including the right to negotiate and conclude collective agreements in accordance with national law and practices while respecting prevailing Community law.’; Recital 20 Directive 2008/104/EC: ‘The provisions of this Directive on restrictions or prohibitions on temporary agency work are without prejudice to national legislation or practices that prohibit workers on strike being replaced by temporary agency workers.’. Recital  2 Directive 96/71: ‘Whereas this Directive is without prejudice to the law of the Member States concerning collective action to defend the interests of trades and professions.’ 83 Recital 19 Directive 2008/104/EC: ‘This Directive does not affect the autonomy of the social partners nor should it affect relations between the social partners, including the right to negotiate and conclude collective agreements in accordance with national law and practices while respecting prevailing Community law.’ 84 Art 1 (3) Regulation 1176/2011: The application of this Regulation shall fully observe Art 152 TFEU, and the recommendations issued under this Regulation shall respect national practices and institutions for wage formation. This Regulation takes into account Art 28 of the Charter of Fundamental Rights of the European Union, and accordingly does not affect the right to negotiate, conclude or enforce collective agreements or to take collective action in accordance with national law and practices.

Article 28  489 actus instead of the lex locus damni creates more legal security for the actors involved in the collective action. This regime is still incomplete. There is no guarantee at all that trade unions and employees will indeed be tried before a judge of the country where the action is to be, or has been, taken. In fact, the Tor Caledonia case85 makes it abundantly clear that the alleged victim suffering damage has a choice between the courts of the State where the defendants in such a tort case have their residence or the courts of the place where the harmful event occurred, if that place is located in another Member State. More importantly, the Court indicated in Tor Caledonia that the place where the harmful event occurred may concern the place of the harmful event (locus actus), as well as the place where the harmful event caused damages (locus damni). In theory, this provides ample leeway for forum shopping and a risk that people who are exercising a fundamental right protected under their Constitution will actually be judged by a court of another Member State. As far as the law applicable to contractual obligations is concerned, the applicable lex contractus is the law chosen by the parties, although this cannot deprive the employee ‘of the protection afforded to him by provisions of the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract’. Furthermore, the work that is habitually carried out shall not be deemed to have changed, if he is temporarily employed in another country. In practice, such a rule might also favour the applicability of the strike laws of the country where the collective action will take place. It is indeed of the essence that the lex locus ‘actus’ is in fact the lex locus (non) laboris. 2.  The Right to Strike as Recognised by the CJEU In the Viking and Laval decisions, the Court did recognise a right to have recourse to collective action as a general principle of EC law. The Court construes the right to have recourse to collective action partially by reference to ILO instruments related to the freedom of association and partially by reference to the ESC. The Laval and Viking cases of the CJEU have already been referred to as recognising a right to take collective action as a general principle of EU labour law. Insofar as this recognition is not restricted to one species of collective action, id est strike action, the recognition can be said to have a ‘liberal’ character. In fact, the collective actions concerned were not strike actions, but were a circular appealing for a boycott (Viking) and a blockade of a construction site (Laval). Furthermore, in both cases, the collective actions were an expression of ­solidarity. In fact, the Court in Laval even considered that these solidarity boycotts fell within the ambit of the right to collective action as a general p ­ rinciple of EU law, 85 CJEU, 5 February 2004, C-18/02, Danmarks Rederiforening, acting on behalf of DFDS Torline A/S v LO Landsorganisationen i Sverige, acting on behalf of SEKO Sjöfolk Facket för Service och Kommunikation.

490  Filip Dorssemont and Marco Rocca although by looking at the facts of the Laval case, no ‘primary’ action could be identified. Also, although this has no legal impact (rubrica non fit lex), it would be ironic to deny the protection of solidarity actions under Article 28 when this same Article has been included in the Charter under the Title ‘Solidarity’. At present, it seems too difficult to state whether the recourse to strike action is restricted to a process of collective bargaining. Laval is an illustration of an industrial dispute linked to the conclusion of a local collective agreement, whereas in Viking a boycott was organised to prevent the conclusion of an agreement. Since the right to collective action is juxtaposed rather than linked to collective bargaining, there is no reason to assume that a strong link needs to exist. 3.  ‘Political Strike’ It is still difficult to grasp the extent to which collective actions that challenge EU policies fall under Article 28 CFREU. In our view, it would be outdated to construe them as purely political strikes. In fact, Article 28 allows recourse to strike action, whenever it relates to a conflict of interests, irrespective of the identity of the parties in the conflict. In the past, however, the CJEU has explicitly considered the aims of collective actions, id est the demand put forward, in ruling about their legitimacy. Whereas the actions of French farmers (in the so-called Spanish Strawberries case)86 were obviously considered too violent to be worthy of any protection, the Court in Schmidberger explicitly considered that the ecological activist did not challenge the foundations of the economic legal order of the European Union. In other words, the CJEU seems to draw a distinction between actions that aim to disrupt the economic order and actions that seek to foster different objectives, despite the fact that the means being mobilised are disruptive to some extent. Despite this healthy momentum, two subsequent cases are infamous for imposing restrictions on recourse to collective action that were hitherto unprecedented in Finnish (Viking) and Swedish (Laval) law and that have subsequently been considered to be at odds with the ILO approach to the right to organise. D. Limitations The CFREU does not construe the rights enshrined in the CFREU as ‘­absolute rights’. It provides a general clause relating to restrictions applicable to the rights enshrined. The generality of the clause is problematic, because it does not sufficiently highlight that some of these rights are indeed considered to be



86 CJEU,

9 December 1997, C-265/95, Commission v France.

Article 28  491 absolute in the ECHR (freedom of conscience, religion and the prohibition of torture, slavery and servitude). i.  Collective Action a.  Internal Limitations No one would seriously contend that the freedom of collective bargaining, let alone the right to collective action are ‘absolute’. Prior to the issue of these external limitations, some implicit limitations need to be taken into account. Implicit or internal limitations cannot be considered to be restrictions of the rights and principles consecrated by the Charter. They operate as limits or delimitations of recognition. The importance is relevant, because internal limits do not need to pass the test of Article 52(1) CFREU. If these internal limits are being transgressed, the exercise of a right falls outside the Charter. As far as the right to collective bargaining and action is concerned, the major common ‘limitation’ comes into play in monte. The specific formula of the recognition is ambiguous. It does recognise these rights solely insofar as they are exercised ‘in accordance with Union law and national laws’. This formula pops up in an impressive number of provisions of the Charter. Despite the fact that Article 52(2) and (4) CFREU already urge an interpretation of the fundamental rights in accordance with common constitutional traditions and in accordance with relevant Treaty provisions, this limitation is far from redundant. It allows for internal limitations that might stem from inferior national or European sources, deprived of a constitutional nature. In an absurd interpretation, this could provide leeway to the European institutions and to the Member States producing law to trigger a reductio ad nihilum. However, such an interpretation is counterintuitive. In fact, it is at odds with the idea that there is always an essence or a Kernbereich.87 Last but not least, both the French and the Italian Constitutions have introduced a very similar formula, suggesting that the right to strike exists solely within the limits of the law. This formula has never been interpreted as an obstacle to the direct effect of these provisions, nor as a source for arbitrary restrictions to that right. As far as the right to negotiate and conclude collective agreements is concerned, a specific delimitation relates to the fact that this right is recognised ‘at the appropriate levels’. As far as the right to take collective action is concerned, the recognition is made subject to the condition that it can be exercised only in cases of conflict of interests. On the other hand, contrary to other instruments, the CFREU does not restrict the recognition to one species 87 As guaranteed by Art 52(1) CFREU: ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms.’

492  Filip Dorssemont and Marco Rocca of collective action. On the contrary, it recognises a broader notion of collective action, highlighting that it includes strike action. b.  External Limitations Article 52(1) makes it abundantly clear that any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

The scope of this provision is twofold. It indicates which external limits exist, but it also indicates the limits to these limits. A restriction that fails to respect these meta-limits constitutes a violation. Though this general provision comes close to the approach adopted in the ECHR and the ESC, there are some major differences. The first relates to the objectives that can be used to justify ‘limitations’ on the exercise of rights. The CFREU excepts any objective of general interests, whereas the ESC and the ECHR only except specified and specific general interests, enumerated in an exhaustive way. Second, the CFREU mentions an obligation to respect the essence of the rights and freedoms recognised by the Charter in operating a proportionality test. If the application of a proportionality test amounts to a restriction that deprives the exercise of a right from its useful effect (effet utile), clearly the essence of that right has been violated. Article 52(1) CFREU suggests that there is only one way to deal with these conflicts between fundamental rights or that it reflects the only pathway that has been followed in the past. In our view, in the past the European institutions have adopted divergent approaches to clashes between the rights enshrined in the Charter or between rights in the Charter and other principles of EU law. It has indeed followed three pathways. It has sought either to provide ‘immunity’ to these rights, to balance these rights applying a proportionality test or, in some cases, just to create a hierarchy. The resulting leeway offered to national judges following these pathways can be very different. The latter will be illustrated more specifically through case law related to the right to collective bargaining and to collective action. The immunity approach stems from the Albany judgment.88 It shields collective agreements as defined by the CJEU from competition rules in the TFEU. From a technical point of view, the concept of immunity is unfortunate. In Albany the Court ruled that the Treaty rules on competition did not apply to collective agreements between management and labour. Immunity suggests that rules are applicable, but that an exemption is granted. The Court considered that

88 CJEU,

C-67/96, Albany International BV v Stichting Bedrijfspensioenfondstextielindustrie.

Article 28  493 certain restrictions of competition are inherent in collective agreements between organisations representing employers and workers. In order to prevent the social policy objectives pursued by the agreements from being seriously undermined if management and labour jointly seek to adopt measures to improve conditions of work and employment, the Court ruled that these agreements must be regarded as falling outside the scope of the competition provisions. This teleological formula and this example of systematic interpretation necessitates, in our view, a broad approach to conditions of work and employment. This approach has been confirmed by subsequent judgments (Van der Woude,89 AG2R Prévoyance).90 Furthermore, the Court had the occasion to give guidance on the personal scope of collective agreements as a constituent element of that notion in FNV Kunsten Informatie en Media.91 Thus, collective agreements related to (affiliated) false self-employed persons – in other words, service providers in a situation comparable to that of workers – also enjoy immunity. The Court has given some indications as to the criteria to be applied for the sake of such a comparison, but it will be up to national judges to apply this test. In the Viking and Laval decisions, the CJEU refused to extend this immunity from competition rules to immunity from economic (fundamental) freedoms, such as the freedom of establishment and the freedom to provide services. According to the Court, contrary to competition law, no contradiction based upon an analysis a priori would exist between collective action, on one hand, and these economic freedoms, on the other.92 The Court considers that, by having recourse to collective action, trade unions exert their legal autonomy with the aim of regulating collectively93 the provision of services94 or the freedom of establishment.95 Following the reasoning of the Court this is ‘liable to make it less attractive, or more difficult’ to exercise these freedoms96 and hence constitutes a restriction whose compatibility with the Treaties must be assessed through a proportionality test. However, the proportionality test applied by the Court is identical to the one deployed to

89 CJEU, 21 September 2000, C-222/98, Hendrik van der Woude v Stichting Beatrixoord. 90 CJEU, 3 March 2011, C-437/09, AG2R Prévoyance v Beaudout Père et Fils SARL. 91 CJEU, 4 December 2014, C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden. 92 CJEU, 11 December 2007, C-438/05, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, para 52. 93 The Court underpins this analysis of trade union activity by referring to the activities of sports associations. See CJEU, C-36/74, Walrave and Koch v Union Cycliste Internationale; CJEU, C-415/93, Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman; CJEU, C-309/99, Wouters and Others. For a critique of this dubious parallel see, among others, Filip Dorssemont and Giovanni Orlandini, ‘Market Rules and the Right to Strike: A Different Approach’, in Marc Rigaux, Jan Buelens, and Amanda Latinne (eds), From Labour Law to Social Competition Law? (Antwerp, Intersentia, 2014) 74. 94 CJEU, 18 December 2017, C-341/05, Laval un Partneri Ltd v Svenska ­Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, para 98. 95 Viking (n 92) para 57. 96 CJEU, Case C-76/90, Manfred Säger v Dennemeyer & Co. Ltd.

494  Filip Dorssemont and Marco Rocca assess restrictions imposed by provisions not enjoying the status of fundamental rights.97 Thus, Article 28 seems to have a very limited impact in this balancing exercise. The only way to overcome this hurdle, is to stress that both cases have been decided prior to the entering into force of the CFREU. Furthermore, the Court could not yet take into account the recognition of the right to collective bargaining and the right to take collective action by the ECtHR. Both fundamental rights need to be interpreted taking into account the implicit and explicit critiques expressed by supervisory bodies at the level of the Council of Europe and the ILO with regard to these cases. In assessing the exercise of the right to take collective action through the proportionality test, the Court considers whether the action in question pursues a legitimate objective, as well as whether the action is necessary to achieve such an aim and whether the means deployed do not go beyond what is necessary. It is important to stress that, in dealing with collective actions, the Court does not consider that the protection of fundamental rights itself is a legitimate ­objective.98 Therefore, the Court assesses the action on the basis of the compatibility of the trade union demands with EU law. In the context of the posting of workers, the Court considered that a collective action aimed at applying working conditions going above and beyond the minimum conditions allowed by Directive 96/71/EC was not necessary to protect workers against social dumping, and, as such, incompatible with the freedom to provide services.99 In the case of a transnational relocation (through the reflagging of a ferry), the Court found that a collective action aimed at ensuring the application of the same working conditions after the relocation could be considered necessary only if ‘jobs or conditions of employment’ are actually ‘jeopardised or under serious threat’.100 Furthermore, in the reasoning of the Court, the recourse to collective action is liable to be disproportionate if the trade union had ‘other means at its disposal that were less restrictive of freedom of establishment’ and had not ‘exhausted those means before initiating such action’.101 The application of this test has been criticised by an abundance of legal doctrine102 and raises the question as to whether this balancing act does not

97 Cf for instance, CJEU, joined cases C-369/96 and C-376/96, Criminal proceedings against ­Jean-Claude Arblade and Arblade & Fils SARL and Bernard Leloup, Serge Leloup and Sofrage SARL, para 35. 98 Schmidberger (n 75) para 74; Omega (n 76) para 35. 99 Laval (n 94) paras 109–11. 100 Viking (n 92) para 81. 101 ibid, para 87. 102 See, among many others, Tonia Novitz, ‘A Human Rights Analysis of the Viking and Laval Judgments’ (2008) 10 Cambridge Yearbook of European Legal Studies 541–61; Anne Davies, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the CJEU’ (2008) 37(2) Industrial Law Journal 126–48; Filip Dorssemont, ‘The Right to Take Collective Action versus Fundamental Economic Freedoms in the Aftermath of Laval and Viking. Foes Are Forever’ in Marc De Vos (ed), European Union Internal Market and Labour Law: Friends or Foes? (Antwerp, Intersentia, 2009) 45–104;

Article 28  495 affect the very essence of the right to take collective action. In particular, Brian Bercusson stressed the danger of applying a proportionality test on the basis of the stated objectives of a given collective action, as ‘[i]t is in the very nature of negotiations that both parties set demands at their highest and through negotiation over time seek a compromise’.103 The interpretation of Article 28 by the CJEU, as well as its stance about the conflict between fundamental freedoms of the internal market and the right to take collective action, has created a strong incentive for employers to claim a violation of EU law by industrial action. Hence, the actual presence of a crossborder element in a dispute must be carefully considered when assessing the risks of legal claims against a collective action.104 The application of this case law at national level has also provided the occasion for important condemnations by monitoring bodies of international documents protecting social rights. In the British context, British Airways (BA) relied on the Viking precedent to request an injunction (subsequently granted) forbidding a strike by its pilots. The collective action had been announced in the context of negotiations about working conditions at a new subsidiary opened by BA in another EU Member State. The impact of the CJEU case law was condemned by the ILO CEACR.105 The same committee criticised in a similar way the ‘transposition’ of the Laval decision into Swedish law with the so-called Lex Laval.106 In both these occasions the Committee openly criticised the application of the test of proportionality to the exercise of collective action, concluding that the case law developed by the CJEU was ‘likely to have a significant restrictive effect on the exercise of the right to strike in practice in a manner contrary to the Convention [No 87]’107 and that it ‘created a situation jeopardizing the exercise of the rights under the Convention [No 87]’.108 The European Committee of Social Rights (ECSR) has also considered the compatibility of the Swedish Lex Laval (and, in fact, of the CJEU case law) with, inter alia, Article 6(4) ESC. The ECSR criticised in particular the apparent higher value granted by the CJEU to the fundamental freedoms of the internal

Loïc Azoulai, ‘The Court of Justice and the Social Market Economy: the Emergence of an Ideal and the Conditions for Its Realization’ (2008) Common Market Law Review 1335–56; Patrick ­Chaumette, ‘Les actions collectives dans les maillages des libertés communautaires des entreprises’ (2008) 2 Droit Social 210–20; Maria Vittoria Ballestrero, ‘Le sentenze Viking e Laval: la Corte di Giustizia “bilancia” il diritto di Sciopero’ (2008) 2 Lavoro e diritto 357–86. 103 Brian Bercusson, ‘The Trade Union Movement and the European Union: Judgment Day’ (2007) 13(3) European Law Journal 304. 104 See, for instance, in the British context Govia Gtr Railway Ltd v The Associated Society of Locomotive Engineers and Firemen [2016] EWCA Civ 1309 (20 December 2016). 105 International Labour Conference, 99th Session, 2010, Report of the CEACR (The United ­Kingdom), 208. 106 International Labour Conference, 102nd Session, 2013 Report of the CEACR (Sweden), 178. 107 Report of the CEACR (The United Kingdom), 2010, 209. 108 Report of the CEACR (Sweden), 2013, 178.

496  Filip Dorssemont and Marco Rocca market (‘the facilitation of free cross-border movement of services’)109 and the lack of consideration for the restrictions caused to the rights protected by the ESC by the said economic freedoms.110 It is worth recalling that on the same occasion the ECSR confirmed its earlier stance111 by not granting a presumption of conformity with the ESC to national law implementing EU law.112 The existence of a conflict between the two sets of standards was confirmed by the Report of the Secretary General of the Council of Europe on the State of Democracy Human Rights and the Rule of Law in Europe. The Report makes explicit mention of the Decision of the ECSR about the Lex Laval and stresses the necessity of finding ‘pragmatic solutions to settle conflicts’ between EU law and the system of rights and values of the ESC. ii.  Collective Bargaining Turning to collective bargaining, a first set of limitations has been identified by the CJEU case law dealing with occupational pension schemes set up through collective agreements. Thus, in Commission v Germany (occupational pensions)113 the Court struck down a collective agreement concluded between the Federation of Local Authority Employer Associations and the trade union ver.di. In this agreement the parties expressly identified the pension scheme providers that would have managed the occupational pension scheme. As the scheme would have been financed with money coming from a public institution, this was considered to be in breach of Directive 2004/18,114 and hence also a restriction of the freedom to provide services.115 Neither the constitutional protection enjoyed by the right to collective bargaining, nor the new-found status of fundamental rights under Article 28 changed the approach of the Court, which consisted in the proportionality test outlined above.116 Interestingly, AG Trstenjak in her Opinion had proposed a different approach, consisting essentially of a double proportionality test assessing both the restrictions on the freedom to provide services and those on the fundamental right to collective bargaining.117 The Court did not follow the approach proposed by the AG. 109 ECSR, 3 July 2013, No 85/2012, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, para 122. 110 ibid, para 121. 111 ECSR, 23 June 2010, No. 55/2009, Confédération Générale du Travail (CGT) v France, paras 32 and 33. 112 ECSR, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, para 74. 113 Commission v Germany (occupational pensions) (n 72). 114 Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. 115 CJEU, Commission v Germany (n 72) para 41. 116 ibid, paras 52–67. 117 Opinion of AG Trstenjak in Commission v Germany (occupational pensions), paras 192 and 199. See Syrpis (n 72) 222–29.

Article 28  497 Finding that the preservation of elements of solidarity in the pension scheme would not be ‘inherently irreconcilable with the application of a procurement procedure’,118 the Court concluded for the incompatibility of the collective agreement with EU law.119 In the UNIS decision,120 this same line of reasoning has been stretched even further, by extending it to occupational pension schemes set up by a collective agreement in the private sector. Here the CJEU considered that the extension erga omnes of such a collective agreement by the government would bring about a ‘transformation’ of its nature, which would then require the organisation of a tender procedure modelled on the one applicable to public procurement.121 The CJEU found that this requirement stems from the obligation of transparency, in turn implied by the principles of equal treatment and non-discrimination under Article 56 TFEU (freedom to provide services).122 This therefore prohibits Member States from extending erga omnes collective agreements concluded in the private sector, inasmuch as these award directly to a service provider the management of an occupational welfare scheme without a previous procedure modelled on the one applicable to public procurement. A last potential conflict between collective autonomy and EU law is illustrated by a number of EU directives that declare discriminatory clauses to be null and void. In this scenario, no immunity is granted to collective autonomy, nor should judges engage in any kind of balancing act. These directives empower judges to disapply discriminatory clauses in collective agreements. Indeed, the Charter strengthens the constitutional character of the principle of discrimination (Article 21) and hence could be used as an argument to justify these restrictions of collective autonomy by disapplying discriminatory clauses in collective agreements. Such reasoning has been prefigured by Defrenne II.123 The only (albeit important) concession to collective autonomy in this field can be identified in Hennings.124 In this decision the CJEU accepted that, when a collective agreement is used to bring an end to a discriminatory regulation, the same agreement can allow for transitional rules aimed at maintaining earlier conditions and avoiding losses for workers, thus temporary prolonging a discriminatory ­situation. This was considered to pursue a legitimate objective

118 Commission v Germany (n 72) para 58. 119 ibid, § 105. See on this issue especially Eftychia Achtsioglou and Marco Rocca, ‘Trade Unions, Collective Bargaining and Collective Action Beyond the EU and its Court of Justice – A Tale of Shrinking Immunities and Sparkling New Competences from the Land of the Lesser Depression’ (2012) paper presented at the Joint Conference IREC 2012/ESA RN 17, available at http://­atelierdroitsocial. be/wp-content/uploads/2014/07/Achtsioglou_Rocca_AdDS_WP_2012_01.pdf, 18–21. 120 CJEU, joined cases C-25/14 and C-26/14, UNIS [2015] CJEU C-25/14. 121 ibid, para 45. 122 ibid, para 38. 123 CJEU, 8 April 1976, C-43/75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena. 124 CJEU, 8 September 2011, C-297/10 and C-298/10, Sabine Hennings v Eisenbahn-Bundesamt and Land Berlin v Alexander Mai.

498  Filip Dorssemont and Marco Rocca under Article 6(1) of Directive 2000/78,125 inasmuch as it enables the social partners to reach an agreement over the reform of the previous system.126 However, in the same decision the Court in fact clearly states that when the right to collective bargaining is exercised in areas covered by EU law, it has to bend the knee to all provisions of EU law without further specification.127 Also, in Commission v Germany the Court relied on Article 28 to affirm that the ‘protection of the fundamental right to bargain collectively must take full account, in particular, of national laws and practices’.128 Once again, it is difficult to shake off the impression that the elevation of this right to the status of fundamental right lacks any real impact, while the very formulation of ­Article 28 has left the door open for the Court to define very broadly the sources allowed to restrict the right to take collective action and to collective bargaining. E. Enforcement In our view, the enforcement of Article 28 needs to take into account the holdership of the right enshrined. Whereas employers and (representative) organisations of employers and workers are the natural holders of the right of collective bargaining, the right to collective action is held by workers as well as by employers. The latter does not suggest that trade unions who call for a strike and organise it have no direct interest in invoking an individuals’ right to take collective action. Barnard has rightly pointed out that the locus standi of individual staff members based upon Article 28 CFREU in relation to legal disputes related to strikes is not problematic. She rightly argues that Article 263 TFEU provides such a locus standi to individuals.129 As far as collective bargaining is concerned, it might be obvious to assume that there is no case law of the CJEU regarding the violation of bargaining rights, since no genuine bargaining rights have ever been granted to trade unions in staff regulations. However, as highlighted above, some individual staff members have criticised the mere fact that some rules applicable to them had been adopted in a unilateral way, stating that the latter was a violation of the right to collective bargaining. It is interesting to observe that the Court did not discard these requests by stating that collective bargaining was a prerogative of collective actors and that no individual hence had a direct interest in invoking such a right to collective bargaining. Locus standi was

125 Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. 126 Hennings (n 124) para 92. 127 ibid, para 67. 128 Commission v Germany (n 72) para 38. 129 Catherine Barnard, ‘Article 28: The Right of Collective Bargaining and Action’ in Steve Peers et al (eds), The EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2014) 793.

Article 28  499 not being denied. In the same vein, it seems coherent to assume that collective actors have a right to invoke a violation of a right to take collective action to the detriment of an individual staff member. A major issue, in our view, is whether the recognition of a right to collective bargaining in Article 28 CFREU, as well as of the principle of the autonomy of the social partners, can be a catalyst to improve their locus standi as social partners before the Courts. In his last and posthumously published edition of European Labour Law, Bercusson made a passionate plea in favour of Eurolitigation as a lever for collective judicial enforcement of European labour law.130 The author deplored the fact that trade unions could not be considered privileged applicants under Article 263 TFEU and that in fact the CJEU interpreted the condition of being ‘individually and directly’ concerned for non-privileged applicants in too rigid a way. The author also criticised the fact that the Statute of the CJEU did not provide any explicit prerogative in favour of trade unions to intervene in preliminary rulings procedures ex 267 TFEU. As a result of this situation, the access to the CJEU in these procedures is entirely dependent on the choice of the national referring judiciary. Bercusson argued that the social partners were able to remedy this situation only in a very indirect and unsatisfactory way. In the intersectoral framework agreements that have been implemented by means of a Directive, the social partners did include a clause stating that ‘any matter relating to the interpretation of this agreement at European level, should, in the first instance, be referred by the Commission to the signatory parties who will give an opinion’. The social partners did state that ‘this obligation could in no way prejudice the respective role of the Commission, the national courts and the Court of Justice’. Although these clauses have been ‘implemented’ by means of a directive, it is difficult to assess the extent to which they have in fact been taken into account by the Commission. Since these clauses contain obligations addressed to the Commission, it is unclear whether and how a directive could be relevant to and effective in implementing them. The only case that sheds some light on the issue is the Chatzi case. In this case, the CJEU has indicated that it ‘asked the Commission whether the Framework Agreement’s signatory parties had given an opinion on the points raised in the present reference for a preliminary ruling’. The Commission replied at the hearing in the negative. It explained, firstly, that the time constraints imposed by an accelerated procedure were incompatible with such consultation and, secondly, that such consultation would have been neither effective nor constructive since the questions forming the subject-matter of the reference for a preliminary ruling have never been examined at European level.131

130 Brian Bercusson, European Labour Law (Cambridge, Cambridge University Press, 2009) 496–518. 131 CJEU, 16 September 2010, C-149/10, Zoi Chatzi v Ypourgos Oikonomikon, para 23.

500  Filip Dorssemont and Marco Rocca It is interesting to observe that the German government took a more ­courageous132 stance, stating, as highlighted in the judgment, that the right of management and labour to negotiate collective agreements, which they have under Article 28 of the Charter of Fundamental Rights, and their right, now enshrined in Article 155 TFEU, to conclude agreements on issues of social policy that can be implemented at European Union level by a Council decision means that management and labour can determine autonomously the scope of those agreements, without running the risk that the scope of such an agreement will be extended beyond its wording and aims.133

Bercusson has argued that a more simple, logical and effective solution might be a situation whereby the social partners were permitted to have direct access to the Court to present their views, both in writing and orally, as regards the interpretation of the framework agreements reached by them.134

The question arises whether Article 28 CFREU is sufficient to oblige the CJEU to accept a third-party intervention in preliminary procedures by the signatory social partners of framework agreements. In our view, this is questionable. No international instrument related to the right to collective bargaining nor any of its comments by competent supervisory bodies seem to conceptualise such access to justice. However, at the European level, it is worthwhile to refer to Adefdromil v France. In this judgment, the ECtHR stated that the right to organise under Article 11 ECHR does have procedural implications. It did not fail to condemn the French State on the basis of Article 11 ECHR for its refusal to declare a request of a French association defending the interests of the military admissible in view of its trade union character (en raison de la nature syndicale de son objet social). The Court ruled that this refusal struck at the very heart of the right to organise.135 The Court ruled that the ‘l’interdiction pure et simple pour une association professionnelle d’exercer toute action en lien avec son objet social porte à l’essence même de cette liberté, une atteinte prohibée par la Convention’.136 Hence, the question arises of whether the refusal of the ECtHR to have access to justice as a third party in preliminary procedures which are intertwined with its ‘objet social’ to negotiate and conclude collective agreements does not affect the very essence of the right to organise, in a disproportionate way. Such a formula suggests that there are duties for the EU institutions to facilitate their role. Since the European Union needs to respect the autonomy of the

132 For a critique of the lack of courage by the CJEU: Ballestrero, Lo Faro, Razzolini (n 42) 542. 133 Chatzi (n 131) para 22. 134 Bercusson (n 130) 517. 135 ECtHR, 2 October 2014, No 32191/09 Adefdromil v France, para 60: ‘les autorités internes ont porté atteinte à l’essence même de la liberté d’association’. 136 ibid.

Article 28  501 social partners as well, it seems consistent to deduce an obligation to allow social partners to intervene in order to assist the CJEU in interpreting the meaning of an autonomous instrument that these signatory parties have drafted. In issuing such an interpretation, the signatory parties need to realise that the persuasive authority of their interpretation will be enhanced if they are able to produce a common understanding of the agreement they have negotiated. Furthermore, this authority would be more compelling if it took into account the canon of interpretation that the CJEU has referred to in Chatzi. The CJEU made it abundantly clear that it seeks to apply the same canon of interpretation irrespective of whether a directive has an autonomous or a heteronomous origin. It refers to a lexical and a teleological interpretation, without making any reference to the subjective intention of the signatory parties.137 In our view, the Court of Justice needs to be consistent. As the General Court has indicated in UEAPME, since the European Parliament does not play a decisive role in the adoption of EU directives implementing agreements concluded at European level by the social partners, it is essential that the participation of the people be otherwise assured, in this instance through the parties representative of management and labour who concluded the agreement which is endowed by the Council, acting on a qualified majority, on a proposal from the Commission, with a legislative foundation at Community level.138

This consideration has led the Court to consider that ‘the Commission and the Council are under a duty to verify that the signatories to the agreement are truly representative’. In our view, it would be consistent to give the signatory parties (id est not UEAPME) a ‘privileged status’, just like any other institution that plays a role in the democratic process. In our view, there can be no doubt that in a case of failure on the part of the administration to implement European agreements after a joint request of the signatory parties, the latter are directly and individually concerned to attack such a decision at the General Court. The impetus on autonomy introduced by the Lisbon Treaty and the consideration that the rights under the Charter need to be promoted as well, will only strengthen the substantive merits of such a case. III. CONCLUSIONS

In a seminal contribution on Article 28 TFEU, Barnard has stated that the value of the inclusion of the right to collective bargaining and action in the CFREU is essentially ‘symbolic’. Barnard argued that a Charter pretending to be comprehensive could not be mute on both rights, at the risk of being discredited. However, she continued by saying that in a post Viking and Laval era, the

137 Chatzi

(n 131) paras 26 and 43–44. (n 71) para 89.

138 UEAPME

502  Filip Dorssemont and Marco Rocca ‘exceptions may subsume the right’.139 To put it differently, Article 28 CFREU might have saved the credibility of the Charter, but did it also save the right to collective bargaining and action as well? A ‘constitutional’ recognition of the right to collective bargaining and, especially, of the right to take collective action has been a lever for (industrial) democracy in a number of European Member States emerging from an era of totalitarianism. Indeed, the fall of such regimes created an antithetical momentum for the recognition of the right to take collective bargaining and action. Supreme Courts, whether constitutional or not, have used the constitutional recognition of the right to take collective action to interpret this provision as a living instrument. Although some of these provisions clearly indicated that the right to strike had to be exercised within the limits of the law, no comprehensive legislation was adopted. The law on strikes was judge-made law. The ‘constitutionalisation’ of the right to collective bargaining and collective action in the European Union took place in a different context. At the risk of being cynical, it was preceded by a judicial recognition of the right to take collective action as a ‘general principle of EU law’, whereas it might have triggered the posterior judicial recognition of the right to collective bargaining as a ‘fundamental principle of EU law’. In both cases the judicial recognition came with severe strings attached. In fact, the recognition by the CJEU of such general or fundamental principles has always proved to be a prelude to the justification of restrictions based on the economic constitution, formerly known as violations (of social rights) in domestic legal orders or within other international and European legal orders. Timeo Danaos et dona ferentes [beware of Greeks bearing gifts] was soon on everyone’s lips. Thus, the CJEU has primarily played a role in defining the limits of collective bargaining and collective action, rather than the role of a progressive fountain of social justice; upholding and corroborating those rights that could empower workers and their organisations to defend and promote their interests. The judges at the Kirchberg are in a comfortable position. Checks and balances are close to non-existent. Intervention at the level of secondary legislation to shield the right to take collective action as a reaction to the Court’s case law is extremely difficult, and can easily be overturned since the CJEU rules as a constitutional Court,140 while reform of the Treaties is virtually impossible. Quis custodiet ipsos custodes? The right to collective action is intertwined with the freedom of expression. Indeed, in the Declaration of Philadelphia, the right to organise and the right to freedom of expression go hand in hand.141 The right to collective action is essential in any legal order that prohibits recourse to violence as a means to

139 Barnard (n 129) 794. 140 See Gerda Falkner, ‘Introduction: The EU’s Decision Traps and Their Exits’ in Gerda Falkner (ed), The EU’s Decision Traps: Comparing Policies (Oxford, Oxford University Press, 2011) 10–11. 141 ‘Freedom of expression and of association are essential to sustained progress’ (emphasis added).

Article 28  503 promote and defend interests. It is of the essence that collective action is peaceful. It generates pressure without any recourse to violence against persons and goods. The strike as work stoppage is peaceful, since it essentially boils down to an omission to act. It provides an alternative to social violence. Repression of recourse to collective action deprives workers and trade unions from such an alternative and, as such, creates the necessary preconditions for recourse to violence. Autonomy is of the essence in the right to collective bargaining and action. Management and labour should be free to regulate working conditions through collective bargaining and trade unions and workers should be free to assess whether it is appropriate to have recourse to collective action or not. The European Union has a long record of limiting autonomous collective bargaining at national level.142 Nobody would argue that collective autonomy should provide a justification for clauses that are purely discriminatory in nature. Legislative interventions declaring these clauses null and void need to be saluted.143 In recent years, however, the Court of Justice has censured collective agreements, attempts to conclude collective agreements or to prevent the conclusion of these agreements or decisions to make them generally binding, if their substance was deemed at odds with so-called fundamental economic freedoms. These decisions tend to analyse conflicts between the freedom to collective bargaining and economic freedoms once the substance of these agreements merely restricts these freedoms, albeit not in any discriminatory manner. Immunity of these agreements is being denied, since the conflict is not considered to be a ‘necessary’ one. Collective actions have been scrutinised in a similar manner once it is deemed that demands put forward by workers and their unions restrict fundamental economic freedoms. If one looks at the role of Article 28, the picture is indeed quite depressing. So far, when the Article here at stake has been referred to in a decision, it was either simply mentioned (mostly by the referring judge),144 or it was used by the Court to justify the possibility to impose restrictions on the rights it is supposed to protect.145 As a result of these operations, collective agreements and collective actions have turned out to be ineffective to correct the Economic Constitution of the European Union and its impact on working conditions. Any attempt to balance 142 See also Schmitt (n 62) 218–22. 143 In this sense, while condemning the so-called Lex Laval, the European Committee of Social Rights has stated that the limitation or prohibition of collective actions that ‘relate to discriminatory objectives’ would not be necessarily contrary to Art 6(4) of the ESC. See ECSR, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v Sweden, para 119. 144 See Chatzi (n 131); Hennings and Mai (n 124); as well as CJEU, 5 November 2014, C-476/12, Österreichischer Gewerkschaftsbund v Verband Österreichischer Banken und Bankiers; CJEU, 21 December 2016, C-539/15, Daniel Bowman v Pensionsversicherungsanstalt. 145 Notably in Viking (n 92); Laval (n 94); Commission v Germany (n 72); as well as CJEU, 28 June 2012, C-172/11, Georges Erny v Daimler AG – Werk Wörth; CJEU, 13 September 2011, C-447/09, Reinhard Prigge and Others v Deutsche Lufthansa AG.

504  Filip Dorssemont and Marco Rocca the social constitution and the economic constitution by submitting the latter to a similar or reversed proportionality test, as suggested in the Opinion of AG Trstenjak and in the failed Monti II proposal,146 has been abandoned. Thus, collective autonomy has actually ceased to be a lever for a nonviolent correction of the economic constitution. This downgrading approach to so-called fundamental freedoms has in fact been prefigured in case law related to classical civil and political rights. In Bosman, a federation of football clubs was unsuccessful in invoking their internal autonomy, an essential aspect of their freedom of association, against the free movement rules. The Court did not even bother to balance.147 In Schmidberger, the Court deliberately safeguarded the freedom of assembly and expression involved, based upon the explicit consideration that the ‘purpose of that public demonstration was not to restrict trade in goods of a particular type or from a particular source’. This statement completely contradicted a previous one, expressed in the same judgment, affirming that ‘the specific aims of the demonstration are not in themselves material in legal proceedings such as those instituted by Schmidberger’.148 The approach of the EU throughout the case law and its new economic governance has proven to be at odds with the understanding of both the right to collective bargaining and the right to take collective action by the most specialised and authoritative bodies supervising the instruments dealing with these rights. More dialogue is needed between these bodies and the CJEU in order to overcome an insurmountable clash between legal orders. The infamous ­opinion 2/13 is not able to mitigate the impression that the CJEU is not very open to such a dialogue. The price to be paid for such a stance is indeed a steep one. Not allowing these democratic forces to exercise so-called enabling rights to reshape the Economic Constitution in a peaceful way is a dangerous strategy, especially for a Union that aspires to become ‘ever closer’. If purely internal situations are excluded from the scope of the Charter, while transnational ones see the fundamental rights to collective bargaining and action inevitably bend the knee to economic freedoms, one cannot avoid questioning the value of such a Union for collective social rights.



146 See

COM 2012 (130) final. Bosman (n 93). 148 Schmidberger (n 75) § 66. 147 See

23 Article 30 – Protection in the Event of Unjustified Dismissal MÉLANIE SCHMITT

Article 30 Protection in the event of unjustified dismissal Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices.

EXPLANATIONS This Article draws on Article 24 of the revised Social Charter. See also ­Directive 2001/23/EC on the safeguarding of employees’ rights in the event of transfers of undertakings, and Directive 80/987/EEC on the protection of employees in the event of the insolvency of their employer, as amended by Directive 2002/74/EC.

I. INTRODUCTION

A.  Context and Main Content Article 30 CFREU is the first EU law provision that explicitly establishes the fundamental nature of the right to protection against unjustified dismissal, thus recognising this protection as a core element of solidarity.1 It is worth noting that the Community Charter of the Fundamental Social Rights of Workers (Community Charter), adopted on 9 December 1989, contains no general provision on protection in case of termination of employment contract. However,  since the entry into force of the Social Policy Agreement annexed

1 G Heerma van Voss and B ter Haar, ‘Common Ground in European Dismissal Law’ (2012) 3(3) ELLJ 215–29. See also V Bij de Vaate, ‘Achieving Flexibility and Legal Certainty Through Procedural Dismissal Law Reforms: the German, Italian and Dutch Solutions’ (2017) 8(1) ELLJ 5–27.

506  Mélanie Schmitt to the Treaty of Maastricht, the European Parliament and the Council have had the power to adopt ‘minimum requirements’ as regards the ‘protection of workers where their employment contract is terminated’ (Article 153(1)(d) and (2)(a) TFEU). But no general EU legislation has yet resulted from this specific legal basis, which requires unanimity among the Member States within the Council. While numerous directives regulate certain aspects of dismissal law in specific circumstances, the Explanations on Article 30 refer only to the Transfers of undertakings D ­ irective 2001/23 and the Insolvency of the employer Directive.2 The narrow application given to protection against unjustified dismissal illustrates the important difficulties deriving from the very general and vague wording of Article 30, on one hand, and from the reference made to EU and national law, on the other hand. These two elements indeed reflect two core issues that Article 30 has to face: (i) the delimitation of the field of application of Article 30; and (ii) the determination of the content of the protected right. More deeply, the right to protection in case of dismissal is usually presented by academics as suffering from ambiguity, due to divergent interests and objectives that the right attempts to reconcile: namely the protection of the worker against the employer in an asymmetric relationship; job security; and furthermore the needs of society. Kenner indeed develops the idea that Article 30 faces an ‘­ identity crisis’.3 The absence of general EU legislation on workers’ protection in the event of dismissal does not mean that national legislations are not influenced by the EU. Since the year 2000, on the contrary, the EU has constantly tightened its grip on Member States’ employment protection legislation (EPL)4 within the framework of the European Employment Strategy (EES).5 Introduced by the Treaty of Amsterdam, the EES was modelled on economic policy and, furthermore, subordinated to it.6 In this context, the ‘flexicurity approach’ adopted by the Commission on the basis of the so-called Kok Report7 considers dismissal law – branded as too stringent – as an obstacle to job creation and economic growth.8 Consequently, Member States are asked to reduce legal, administrative 2 Explanations related to the Charter of Fundamental Rights, OJEU C 303/17, 14 December 2007. 3 J Kenner, ‘Article 30’ in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds), The EU Charter of Fundamental Rights. A Commentary (Oxford, Hart Publishing, 2014) 806–32. 4 In strict terms, ‘employment protection law’ refers to the termination of employment relationships at the initiative of the employer for reason(s) not inherent in the person of the worker. See EuroFound Dictionary, http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/ definitions/employmentprotection.htm and http://ec.europa.eu/europe2020/pdf/themes/23_employment_protection_legislation.pdf. 5 Arts 145 to 150 TFEU. 6 Arts 120 to 144 TFEU. 7 European Commission, ‘Jobs, Jobs, Jobs. Creating more Employment in Europe’. Report of the Employment Taskforce chaired by Wim Kok (Publications Office of the European Union, 2003). 8 European Commission, ‘Green Paper: Modernising Labour Law to Meet the Challenges of the 21st Century’, COM(2006) 708 final, 22 November 2006, and ‘Towards Common Principles

Article 30  507 and financial constraints on employers when they are contemplating or deciding on dismissals. Although this policy of flexibilisation, which is part of a wider deregulation agenda, essentially addresses the procedures and costs of dismissals, definition of unjustified dismissal is also affected: ‘Member States should assess and where necessary alter the level of flexibility provided in standard contracts in areas such as … the definition of unfair dismissal.’9 The increasing impact of EU initiatives on national dismissal legislation is further accentuated by anti-crisis ‘structural labour market reforms’ gradually imposed on all Member States since 2010, irrespective of whether they are subject (formally or not) to strict supervision, within the framework of macroeconomic imbalances mechanisms, or ‘only’ to the general European Semester process, including country-specific recommendations.10 With the exception of Spain in 2010 and 2012, and of France in 2017, which both reformulated the provisions permitting dismissals on economic grounds, EU Member States have rather addressed the reasons justifying dismissal in an indirect way, by introducing trial periods and/or by reducing sanctions for unjustified dismissals.11 In this economic perspective, any costs resulting from dismissals appear to be the key issue, which encompasses the procedural and substantive elements of dismissals and contributes to lower the level of workers’ protection.12 The question that then arises concerns the relationships between these EU initiatives taking place within the framework of economic policy coordination and the social objective of workers’ protection initially governing dismissal law. The way in which EU law and EU institutions tackle the right to protection against unjustified dismissal is indeed twofold: one can consider that the ‘social rights-based approach’ is more and more coming into competition with an ‘economic analysis’ that tends to dismantle dismissal law. The most recent Commission initiative establishing the European Pillar of Social Rights (EPSR) of ­Flexicurity: More and Better Jobs through Flexibility and Security’, COM(2007) 359 final, 27 June 2007. 9 Report of the Employment Taskforce chaired by Wim Kok (n 7) 31. 10 I Schömann, ‘Labour Law Reforms in Europe: Adjusting Employment Protection Legislation for the Worse?’ Working Paper (ETUI, 2014) 2; E Kovács, ‘Individual Dismissal Law and the Financial Crisis: An Evaluation of Recent Developments’ (2016) 7(3) ELLJ 368–86; S Laulom, ‘Dismissal Law Under Challenge: New Risks for Workers’ (2014) 5 (3–4) ELLJ 231–54. For an analysis of the procedural dimension, see Bij de Vaate (n 1). 11 Laulom (n 10). 12 S Clauwaert, ‘The Country-specific Recommendations (CSRs) in the Social Field. An Overview and Comparison’, Update including the CSRs 2017–2018, Background Analysis 2017/02, ETUI, Brussels, https://www.etui.org/Publications2/Background-analysis/The-country-specific-recommendationsCSRs-in-the-social-field.-An-overview-and-comparison.-Update-including-the-CSRs-2017-2018: for Spain (p 69) and Portugal (p 60) for instance, the most recent country-specific recommendations (CSRs) focus on the uncertainty of firing costs in case of legal dispute following dismissals of permanent workers, especially when dismissals are deemed unfair, but also address high severance payments (Spain) and the possibility of reinstatement (Portugal), which are implicitly treated as financial obstacles to a flexible labour market. The 2012 CSRs concerning France, Italy and ­Lithuania more generally tackled ‘dismissal provisions’, including ‘dismissal rules and procedures’. See Clauwaert (n 12).

508  Mélanie Schmitt adopted on 26  April  201713 precisely tends to reconcile these contradictory rationales. ­Principle No 7 (b) of the Pillar provides that workers ‘have … in case of unjustified dismissal, a right to redress, including adequate compensation’. This provision is doubly remarkable because it reaffirms the crucial importance of the right to protection in case of dismissal in general14 and in the event of unjustified dismissal in particular, and contains the first ‘official’ indication given by an EU institution regarding the content of that right. However, implementation of the 20 principles and rights of the Pillar will be carried out within the framework of the European Semester with the aim of assessing the ‘performance’ of national legislations and economies. Social rights such as the right to protection in case of unjustified dismissal are then doomed to be ‘translated’ into indicators and, more generally, subject to economic tools and methods: The euro area and country analysis and recommendations will reflect and promote the development of social rights, by assessing, monitoring and comparing the progress towards their implementation. Benchmarking will be progressively conducted for a limited set of areas particularly relevant for the functioning of the euro area, such as employment protection legislation.15

B.  Relationship to Other Relevant Provisions of the Charter Article 30 is located in Title IV of the Charter under the value of ­Solidarity. This situation is unconvincing because the right to protection in case of dismissal has a strong individual dimension, which is moreover particularly highlighted in the few cases the CJEU has decided on that subject. Moreover, protection against unjustified dismissal is closely linked to the right to work, which may be analysed as an ‘overarching right’. Article 15 CFREU provides that ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’. This close relationship is supported by Article 6 UN International Covenant on Economic, Social and Cultural Rights of 1966, as interpreted by the Committee on Economic, Social and Cultural Rights.16

13 European Commission, Communication to the European Parliament, the Council, the ­European Social Committee and the Committee of the Regions establishing a European Pillar of Social Rights, COM(2017)250 final. 14 Principle 7 (b) reads: ‘Prior to any dismissal, workers have the right to be informed of the reasons and be granted a reasonable period of notice. They have the right to access to effective and impartial dispute resolution and, in case of unjustified dismissal, a right to redress, including adequate compensation.’ 15 European Commission, Commission Staff working document accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions establishing a European Pillar of Social Rights, Establishing a European Pillar of Social Rights, SWD(2017) 201 final, 26 April 2007. 16 See below s I.C.iv.

Article 30  509 The right to ­protection in case of unjustified dismissal is thus a core issue also deriving from the value of freedom. Article 30 is directly connected to Article 33, because this provision contains an explicit prohibition of dismissals: ‘To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity’.17 However, the relationship between Article 30 and Article 21 (Non-discrimination) could be problematic as far as discrimination on the ground of age is concerned. This may explain why, in cases dealing with mandatory retirement ages permitted under national legislation, the CJEU did not refer to Article 30.18 Indeed, under Directive 2000/78, which implements Article  21 and the general principle of non-discrimination on the ground of age according to settled case law, such national measures are not discriminatory provided they are justified by a legitimate aim, proportionate and necessary. Following the CJEU case law, the ECSR has stated since 2007 that, in principle: dismissal on grounds of age will not constitute a valid reason for termination of employment except in accordance with a valid retirement age justified by the operational requirements of the undertaking, establishment or service. States should take adequate measures to ensure protection for all workers against [such] dismissal.19

Article 30 is also to be read in combination with the ‘right to an effective remedy before a tribunal’ proclaimed in Article 47 CFREU, so that one must consider that every worker is entitled to the right to contest the ground of their dismissal.20 C.  Relationship to Other Relevant Instruments i.  EU Instruments a.  Primary Legislation As mentioned above, Article 30 is in close connection with Article 153 TFEU because the ‘protection of workers where their employment contract is terminated’ is one of the matters that can be harmonised by a social policy directive. Unanimity within the Council is needed in that perspective, which appears to be an insurmountable obstacle. However, it is worth noting that the Commission’s first outline of a ‘European Pillar of Social Rights’ made explicit reference to this existing possibility of harmonisation.

17 Art 33 CFREU para 2. See Csilla Kollonay-Lehoczky and Barbara Kresal, ch 26 in this volume. 18 CJEU, C-388/07, Age Concern England, ECLI:EU:C:2009:128; CJEU, Joint cases C-250/09 and C-268/09, Georgiev, ECLI:EU:C:2010:699; C-45/09, Rosenbladt, ECLI:EU:C:2010:601; CJEU, C-447-09, Prigge, ECLI:EU:C:2011:573 19 Conclusions 2007, Statement of interpretation on Article 24. 20 See Klaus Lörcher, ch 27 ‘Right to an Effective Remedy and to a Fair Trial’, in this volume.

510  Mélanie Schmitt b.  Secondary Legislation Numerous specific Directives regulate different aspects of dismissal law, either directly (Directive 98/59 on collective redundancies)21 or in an indirect or incidental way.22 These items of secondary legislation can be analysed as following a ‘sectoral approach’ and correspond to ‘partial harmonisation’. These Directives may be divided into two groups. The first group contains the ‘Employment Directives’ package to which information-consultation Directives can be added. The Transfer of Undertakings Directive (2001/23/EC) provides indications concerning the reasons that shall justify dismissals or not and is thus in direct relationship with Article 30. It lays down the principle of prohibition of dismissals on the ground of the transfer, but this shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce … when a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee, the employer shall be regarded as having been responsible for termination of the contract of employment.

The relationship between Article 30 CFREU and the Insolvency Directive (2008/94/EC) is significantly weaker. According to Article 3, Member States shall take the measures necessary to ensure that institutions guarantee, subject to Article 4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships.

The Explanations on Article 30 ignore Directive 98/59/EC despite the fact that this text is exclusively focused on the process of termination of employment contracts by the means of (collective) dismissal. Directive 98/59/EC indeed provides that an employer cannot terminate contracts of employment before they have engaged in two procedures of a different nature: (i) an information/consultation procedure involving workers’ representatives and (ii) a notification procedure to the competent public authority. The fact that only procedural aspects are addressed can be seen as one reason explaining the absence of reference to this directive in the Explanations. Economic reasons that can constitute valid grounds for collective dismissal are not regulated and thus remain the exclusive competence of Member States. This apparent paradox might also result from the limited material scope of Directive 98/59/EC, which applies exclusively to collective redundancies (as defined in ­Article  1 Directive 98/59/EC), so that individual dismissals are not covered at all. 21 Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, consolidating the Council Directive 75/129/EEC of 17 February 1975. 22 M Delfino, ‘EU Rules on Individual Dismissals: A Roar or a Meow? (2013) (4) European Journal of Social Law 302–11.

Article 30  511 This  strict distinction between collective and individual dimensions, as well as the one opposing procedural and substantive requirements, is confirmed by the CJEU, which established in Mono Car Styling that the right to information and consultation laid down in Directive 98/59/EC is ‘collective in nature’.23 The CJEU implicitly endorses Advocate General Mengozzi’s opinion according to which, by using the qualification of ‘unjustified dismissal’, Article 30 CFREU: makes clear that the protection is not provided, as a fundamental individual right, with respect to every kind of irregularity that a dismissal might involve. It makes clear that there must be a serious irregularity, as might arise, for example, in relation to the actual merits of a decision to dismiss. Breaches of Directive 98/59, on the other hand, do not appear to be such as to justify reference to Article 30 of the Charter for, given the content of the directive, it is intended that the result of such breaches will be illegality of a formal/procedural kind.24

In the same vein, the AGET Iraklis judgment25 holds that a national legislation conferring upon an administrative authority the power to oppose collective redundancies does not fall within the scope of Directive 98/59/EC, because it exceeds the ‘sole object’ of that Directive, which is ‘to harmonise the procedure to be followed at the time of collective redundancies’.26 From this phrasing it results that Directive 98/59/EC does not deal with the justification of dismissals, which may explain why the Court does not consider a law requiring collective redundancies to be authorised in the light of Article 30. Not only would such narrow interpretation have important consequences for delimitation of the content of the right enshrined in Article 30, but it also seems to be in contradiction with the Court’s assertion that the same national legislation falls within the scope of the freedom of establishment, which includes the right to take on workers in the host Member State and consequently implies the right to dismiss them.27 The first group of directives extends to the information and consultation directives, which generalise the employer’s obligation to inform and consult workers’ representatives on employment issues. Directive 2002/14/EC covers ‘the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment’. In the same vein, the subsidiary requirements laid down in the Annex of Directive 2009/38/EC28 provide for the European works council to be informed and consulted about ‘cut-backs or closures of undertakings, establishments or important parts thereof, and collective redundancies’. 23 CJEU, C-12/08, Mono Car Styling, para 50, ECLI:EU:C:2009:466. 24 CJEU, C-12/08, Mono Car Styling, Opinion, ECLI:EU:C:2009:24, para 97. 25 CJEU, 21 December 2016, C-201/15, AGET Iraklis, ECLI:EU:C:2016:972. 26 CJEU AG, C-201/15, AGET Iraklis, ECLI:EU:C:2016:429, para 27. 27 See S Deakin, ch 4 in this volume. 28 Directive of 6 May 2009 on European Works Councils amending Directive 94/45/EC of 22 September 1994, OJ L 122, 16 May 2009, 28–44.

512  Mélanie Schmitt Furthermore, by virtue of both these directives, Member States ‘shall ensure that employees’ representatives, when carrying out their functions, enjoy adequate protection and guarantees to enable them to perform properly the duties which have been assigned to them’.29 Following the CJEU’s interpretation in Ingeniørforeningen i Danmark,30 protection against dismissals can be, if the Member States so decide, one of the adequate protections provided by Directive 2002/14/EC. Consequently, ‘dismissal on grounds of status or functions as an employees’ representative could be regarded as constituting unfair dismissal under … [national] law and therefore give rise to sanctions for the employer, as provided by Article 8 of Directive 2002/14’.31 By switching from the collective to the individual dimension of workers’ protection, these provisions and case law also put information and consultation Directives in the second group of Directives linked to Article 30. The second group of directives connected with Article 30 entails s­ econdary legislation on anti-discrimination: the ‘Anti-Racism’ Directive 2000/43/EC,32 Directive 2000/78/EC33 and Directive 2006/54/EC.34 The directives on reconciliation of professional and family life (Directive on parental leave 2010/17/EU)35 and the precarious work directives (Directive on fixed-term work 1999/70/EC, Directive on part-time work 97/81/EC and, to a lesser extent, Directive on temporary work 2008/104/EC) may also be associated with these texts. All these directives provide that the principles of equal treatment and of prohibition of discrimination cover dismissals and their consequences (severance pay, notice period and so on).36 For instance, it results from an interpretation a contrario of the CJEU’s reasoning in Daouidi that Article 30 would be applicable if a national situation comes within the scope of Directive 2000/78/EC.37 The referring court asked the CJEU whether Article 30 must be interpreted as meaning that the protection that must be afforded a worker who has been the subject of a manifestly arbitrary and groundless dismissal must be the particular 29 Art 7 of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23 March 2002, 29–34. 30 CJEU, C-405/08, Ingeniørforeningen i Danmark v Dansk Arbejdsgiverforening, ECLI:EU:C:2010. 31 ibid, para 63. 32 Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19 July 2000 22–26. 33 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 02 December 2000, 16–22. 34 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26 July 2006, 23–36. 35 Clause 2(4) requires Member States to take the ‘necessary measures’ to protect workers against dismissal on the grounds of an application for, or taking of, parental leave. 36 As for precarious-work directives, to which may be added the Parental Leave Directive, the CJEU holds that the qualification of ‘employment conditions’, which delineates the scope of application of the non-discrimination principle, includes conditions and (financial) consequences of dismissal. 37 CJEU, C‑395/15, Mohamed Daouidi v Bootes Plus SL, Fondo de Garantía Salarial, Ministerio Fiscal, para 64.

Article 30  513 protection provided for in national legislation for every dismissal that infringes a fundamental right. Although the Court did not explicitly answer this question, it held that ‘at the present stage of the main proceedings, it has not been established that the situation at issue comes within the scope of a provision of EU law other than those set out in the Charter’.38 It has to be noted that the principle of equal pay for male and female workers enshrined in Article 157 TFEU also applies because compensation for unfair dismissal falls within the definition of pay for the purposes of this provision.39 At the crossroads of the fight against discrimination and the protection of workers’ health and safety, Directive 92/85/EC40 also prohibits the dismissal of a pregnant worker or workers who have recently given birth or who are breastfeeding. ii.  Council of Europe Instruments a.  (Revised) European Social Charter According to the Explanations related to the EU Charter, Article 30 draws on Article 24 of the Revised European Social Charter (RESC), which itself draws on ILO Convention No 158.41 Protection provided by Article 24 RESC is divided into substantive guarantees and the right to appeal. The former results from two general principles: (i) a worker’s right not to be dismissed unless there are valid grounds connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service (Article 24(a)); (ii) the right to adequate compensation or other appropriate relief in case of unfair dismissal (Article 24(b)). As for reasons related to the worker’s situation, temporary absence from work due to illness or injury is not in itself a valid reason for dismissal.42 Nor are grounds of age a valid reason for termination of employment, except in accordance with a valid retirement age justified by the operational requirements of the undertaking, establishment or service.43 Moreover, it must, within the context of national law, be objectively and reasonably justified by a legitimate aim such as a legitimate employment policy, labour 38 ibid, para 64. 39 CJEU, 9 February 1999, C-167/97, Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez, ECLI:EU:C:1999:60, para 28. Art 157 TFEU provides that: ‘1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. 2. For the purpose of this Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer…’ 40 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ L 348, 28 November 1992, 1–8. 41 See M Schmitt, ‘The Right to Protection in Cases of Termination of Employment – Article 24,’ in N Bruun, S Clauwaert, K Lörcher and I Schömann (eds), The European Social Charter and the Employment Relation (Bloomsbury, Hart Publishing, 2017) 412–38. 42 Conclusions 2003, France. 43 Conclusions 2007, Statement of interpretation on Article 24.

514  Mélanie Schmitt market objectives or the operational requirements of the undertaking, establishment or service and provided that the means of achieving that aim are appropriate and ­necessary.44

As regards economic grounds, Article 24 RESC ‘only permits economic reasons under certain conditions to justify laying-off employees’.45 However, this provision ‘requires a balance to be struck between employers’ right to manage their enterprise as they see fit and the need to protect the rights of the employees’.46 The ECSR pays more attention to judicial aspects, requiring that courts be empowered to review the facts underlying the economic reasons invoked by the employer.47 The Appendix under Article 24 explicitly prohibits termination of employment based on certain grounds, most of them benefiting from more rigorous safeguards elsewhere in the Charter. In his opinion in AGET Iraklis, Advocate General Wahl refers to Article 24 RESC and the Annex of the RESC in order to highlight that the reasons listed in these provisions as unlawful grounds for dismissals do not ‘concern dismissal for purely economic reasons, nor can they be linked to such reasons’. Article 24 RESC then prescribes two cumulative types of relief. First, a genuine possibility of reinstatement shall be provided by States.48 Second, decisions ruling a dismissal null and void and ordering the employee’s reinstatement must at a minimum be accompanied by an entitlement to receive the wage that would have been payable between the date of the dismissal and that of the court decision or effective reinstatement.49 Furthermore ‘compensation for unlawful dismissal must be both proportionate to the loss suffered by the victim and sufficiently dissuasive for employers.’50 Consequently, any ceiling that may preclude damages from being in conformity with these requirements are proscribed. If there is such a ceiling, the victim must be able to seek compensation for non-­pecuniary damage through other legal avenues (eg anti-discrimination legislation).51 The effectiveness of that right to relief requires that a right to challenge the dismissal’s reason before an impartial body be provided. Substantive guarantees have thus to be understood in view of and in connection with this judicial guarantee. The Committee does not impose minimum limitation periods to States Parties but requires that courts ‘must decide within a reasonable time’.52

44 Conclusions 2008, Lithuania. 45 ibid (emphasis added). 46 Case No 107/2014, Finnish Society of Social Rights. 47 Conclusions 2003, Bulgaria. 48 The obligation to re-employ employees made redundant for financial or production-related reasons during the following nine months cannot be regarded as a substitute for reinstatement (Case No 106/2014, Finnish Society of Social Rights). 49 Conclusions 2003, Bulgaria. 50 Conclusions 2012, Finland. 51 Conclusions 2012, Finland; Conclusions 2017, Finland. 52 Conclusions 2012, Finland.

Article 30  515 This restriction on the length of proceedings under Article 24 is certainly drawn from Article 6 of the European Convention of Human Rights and the corresponding case law of the ECtHR. By contrast, States must provide details about the burden of proof. In 2008, the Committee’s general stance related to allegations of discrimination was extended to Article 24: ‘the burden of proof should not rest entirely on the complainant, but should be the subject of an appropriate adjustment’.53 The Principle 7 b) of the EPSR appears to be clearly inspired by Article 24 RESC.54 b.  European Convention on Human Rights and Case Law of the ECtHR The ECHR does not provide direct protection against unjustified dismissals. Nevertheless, several ECHR provisions are intended to apply in cases of termination of employment and provide procedural or substantive guarantees. According to settled case law, Article 6 paragraph 1 ECHR (right to a fair trial) applies to work-related disputes, thus reinforcing the link between the right not to be dismissed without valid reason and the right to appeal to enforce this right. In KMC v Hungary,55 the Strasbourg Court referred explicitly to ­Article  24 RESC and held that the dismissal of a civil servant without giving reasons ‘amounts to depriving the impugned right of action of all substance’. It derives from this case law that the Contracting Parties must lay down an obligation for employers to motivate the worker’s dismissal,56 and that this obligation is an essential element of the right protected in Article 6(1) ECHR as far as employment relations are concerned. The Court of Strasbourg further found substantive guarantees afforded to dismissed workers resulting from Articles 9 (freedom to hold religious beliefs),57 Article 10 (freedom of expression)58 and Article 11 (freedom of association).59 More surprisingly, Article 8 ECHR has become an important point of reference for the protection of workers, their dismissal being analysed by the ECtHR as a breach of privacy.60 The Court takes into account the negative effects produced

53 Statement of interpretation on Article 24, Conclusions 2008. 54 See n 15. 55 ECtHR, 10 July 2012, No 19554/11, KMC v Hungary, para 34. 56 On the distinction between an obligation to motivation and an obligation to justification, see below s I.C.i. 57 ECtHR, 12 April 2007, No 52435/99, Ivanova v Bulgaria and ECtHR 15 January 2013, No 48420/10, Eweida and others v the United Kingdom, 59842/10, 51671/10 and 36516/10. 58 ECtHR, 21 October 2010, No 28274/08, Heinisch v Germany. 59 ECtHR 6 December 2012, No 47335/06, Redfearn v the United Kingdom. 60 ECtHR, 9 January 2013, No 21722/1, Oleksandr Volkov v Ukraine; ECtHR, 19 O ­ ctober 2010, No 20999/04, Özpınar v Turkey, paras 43–48; ECtHR, 19 January 2017, No 5114/09, Kulykov and Others v Ukraine et al. See already ECtHR, 16 December 1992, Series A No 251-B, Niemietz  v  Germany; and ECtHR, 27 July 2004, nos 55480/00 and 59330/00, Sidabras et D ­ ziautas  v Lithuania. J Mouly, ‘Vie professionnelle et vie privée. De nouvelles rencontres sous l’égide de

516  Mélanie Schmitt by termination of the employment contract: a privacy breach is found where termination affected a wide range of the applicant’s relationships with other people, including those of a professional nature and his ability to practice a profession that corresponded to his professional qualifications, as well as his reputation.61 iii.  ILO Instruments ILO Convention No 158 (Termination of Employment) and Recommendation No 166 of 198262 constitute immediate international sources of Article 30. They played a major role in the development of legal protection against dismissal in many EU Member States.63 Moreover, Article 24 RESC was explicitly inspired by this Convention. However, only 10 EU Member States have signed and ratified Convention No 158. These international instruments should nevertheless be taken into consideration as ‘a point of reference for judicial interpretation’64 of Article 30. Article 4 of Convention No 158 provides that: ‘The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’. The Convention then lists specific reasons that are not valid reasons for ­termination.65 A worker who considers that he or she has been dismissed without just cause is entitled to appeal against termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator. According to the Convention, this body must have the power to declare the dismissal invalid, which implies the power to scrutinise the reasons invoked by the employer, and remedy this unlawful

l’article 8 de la Convention européenne’ in F Sudre (ed), Le droit au respect de la vie privée au sens de la Convention européenne des droits de l’homme (Brussels, Bruylant Nemesis, 2005) 279–301. F Hendrix and A Ven Bever, ‘Article 8 ECHR: Judicial Patterns of Employment Privacy Protection’, in F Dorssemont, K Lörcher and I Schömann, The European Convention on Human Rights and the Employment Relation (Oxford, Hart Publishing, 2013) 183. 61 ECtHR, 21 January 2014, No 34288/04, İhsan Ay v Turkey. 62 ILO, Protection against unjustified dismissal, General Survey on the Termination of Employment Convention (No 158) and Recommendation (No 166), 1982, International Labour Conference, 82nd Session 1995, Report III (Part 4B), Geneva 1995; ILO, ‘Note on Convention No 158 and Recommendation No 166 concerning termination of employment’, NORMES-2009-02-0268-1-En.doc/v2. See in addition B Napier, ‘Dismissal – The New ILO Standards’ (1983) 12 Industrial Law Journal 17. 63 N Bruun, ‘Article 30’ in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos Verlag, 2006) 340. 64 See Klaus Lörcher, ch 7, ‘Interpretation and Minimum Level of Protection’, in this volume. See in addition Kenner (n 3) 807. 65 These reasons include, inter alia, union membership or participation in union activities; seeking office or acting as a workers’ representative; filing of a complaint or the participation in proceedings against an employer; race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; absence from work during maternity leave (Art 5 C158) and temporary absence from work because of illness or injury (Art 6 C158).

Article 30  517 s­ ituation by proposing reinstatement of the worker or order adequate compensation or other appropriate relief.66 Convention No 158 exceeds the scope of substantially unjustified dismissals by covering other aspects of dismissals, such as procedural requirements prior to the employer’s decision to terminate the employment relation, period of notice and severance pay. On the other hand, ratifying States may exclude three categories of workers from the application of the Convention. iv.  UN Instruments The right to protection in the event of unjustified dismissal is not enshrined as such in the UN International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR). However, the Committee on Economic, Social and Cultural Rights found that the right to work (Article 6) ensures protection against unfair dismissal. Referring explicitly to ILO Convention No 158, it states that the failure to protect workers against unlawful dismissal constitutes a violation of the obligation to protect the right to work.67 Article 7 ICESCR protecting the right to just and favourable conditions of work also applies to dismissals and covers both their conditions and consequences.68 II. CONTENT

A.  General Observations i.  General Framework The right proclaimed in Article 30, in its final version, has been reduced to a minimum formula, which can be considered a contraction of the first version formulated in Convent 18 of 27 March 2000, whereby ‘Workers have the right not to have their employment terminated without valid reason and to adequate compensation or other appropriate relief if their employment is terminated ­without valid reason.’69 This initially more detailed wording, drawn from ­Article 24 RESC, should facilitate the (comprehensive) interpretation of Article  30. In the same vein, the right to ‘protection in case of dismissals’ as defined by the EPSR could serve as an argument for a broad interpretation of Article 30, though this latter is limited to unjustified dismissals. It is therefore worth noting that Article  30 does not recognise the principle of protection 66 Arts 7 to 10 C158. 67 CESCR, The Right to Work – General Comment No 18, adopted on 24 November 2005, E/C. 12/GC/18 (6 February 2006), paras 11 and 35. 68 Committee on Economic, Social and Cultural Rights, General Comment No 23 on Article 7 ICESCR (E/C.12/GC/23). 69 See Bruun (n 63).

518  Mélanie Schmitt against every dismissal including justified dismissals, and then, in contrast to ILO Convention No 158 and the EPSR, does not apply the idea that dismissal per se requires protection because of the job loss. In addition, the reference that the right is to be exercised ‘in accordance with Union law and national laws and practices’ calls into question the scope and effectiveness of Article 30 and, more deeply, the nature of the right to protection against unjustified dismissal under the Charter. Indeed, it seems that a very restrictive interpretation would be privileged, following the opinion of Advocate General Wahl in AGET Iraklis, who refers to the AMS judgement and the interpretation of Article 27.70 Following Delfino, it can be argued that Article 30 enshrines a ‘pending right’, that is, a right ‘applicable to the institutions, bodies, offices and agencies of the Union, which are waiting for a secondary source that is able to fully “activate” them’.71 As already stated by Bercusson, it ‘would be anomalous’ that Article  30, like other fundamental social rights within the Charter, ‘were proclaimed, but there was no EU legislation supporting that fundamental right, despite clear competence in the Treaty to enact directives in this area’.72 And Bercusson suggests that ‘[t]he Commission might come under similar pressure [comparison is made with the Charter of 1989] to make proposals implementing social rights guaranteed by the new EU Charter.’73 In its first outline of the EPSR, the Commission interestingly made reference to Article 153(1)(d) TFEU when proclaiming the right to protection in the case of dismissals. Even more interesting was its initiative, subject to social partners’ consultation under Article  154 TFEU, to revise Directive 91/533/EEC74 by incorporating a set of minimum rights that could be attached to any employment relationship, including new forms of work and new categories of vulnerable workers (domestic workers, on-demand workers, intermittent workers, voucher-based workers, platform workers and workers engaged in internships, traineeships and ­apprenticeships).75 Among those rights the Commission identified a right to a reasonable notice period in case of dismissal/early termination of contract, [a] right to adequate redress in case of unfair dismissal or unlawful termination of contract and, finally, [a] right to access effective and impartial dispute resolution in case of dismissal and unfair treatment.

Complementing the social objectives justifying this proposal of revision, economic arguments were put forward with a view to supporting the latter 70 See Bruno Veneziani, ch 21 ‘Article 27 – Workers’ Right to Information and Consultation Within the Undertaking’, in this volume. 71 Delfino (n 22). 72 B Bercusson (ed) (n 63) 43–44. 73 ibid. 74 Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, 14 October 1991. 75 European Commission, Consultation Document of 26 April 2017 ‘First phase consultation of Social Partners under Art 154 TFEU on a possible revision of the Written Statement Directive (Directive 91/533/EEC) in the framework of the European Pillar of Social Rights’, C(2017) 2611 final.

Article 30  519 right, according to which it ‘is generally seen as an effective incentive for investors and for hiring’.76 One cannot but notice that this attempt to overcome tensions between the social and economic dimensions of the EPL, and thus to facilitate the shared approval of this initiative among trade unions and employers’ organisations, has failed. After all employers’ organisations rejected the idea of creating a minimum floor of rights for all workers, the Commission indeed reduced the list of possible additional substantive rights ‘in the light of the need to balance essential worker protection with scope for job creation and labour market flexibility’.77 Consequently, but at the same time problematic under the positive obligations deriving from Article 30, the abovementioned specific rights implementing the right to protection against dismissals were removed from the Commission’s new list of ‘rights which address directly the key gaps in protection arising from the expansion of non-standard and casual forms of work’. Despite all criticisms, this provision should be considered to have horizontal effect because it would be without practical effect for the employment relationship, which is conceptualised by its structural imbalance to the detriment of the worker (inequality of power), in particular in the private sector (effet utile).78 In any event, applying in particular the criteria the CJEU used in the Egenberger judgment by referring in particular to international standards (see section I.C.ii–iv) and constitutional traditions79 this provision has also to be considered a ‘general principle of EU law’, thus providing it with horizontal effect by disapplying contradictory national legislation. ii.  Personal Scope Article 30 protects ‘every worker’ against unjustified dismissal. It is likely that the personal scope of Article 30 will be aligned on the concept of worker defined by CJEU case law ‘in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned’: ‘the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’80

76 European Commission, Consultation Document of 26 April 2017, First phase consultation of Social Partners under Article 154 TFEU on a possible revision of the Written Statement Directive. 77 The employers’ organisations put forward formal arguments based on the principles of subsidiarity, proportionality and social partners’ autonomy. See European Commission, Consultation Document ‘Second phase consultation of Social Partners under Article 154 TFEU on a possible revision of the Written Statement Directive (Directive 91/533/EEC) in the framework of the European Pillar of Social Rights’, C(2017) 6121 final. 78 See ch 6 on Arts 51 and 52(1) in this publication. 79 CJEU (GC), 17 April 2018, C 414/16, Egenberger, para 75 (‘which originates in various international instruments and the constitutional traditions common to the Member States’) in combination with para 76 (‘mandatory as a general principle of EU law’). 80 CJCE, 3 July 1986, Case 66/85, Lawrie-Blum v Land Baden-Wuerttemberg; CJCE, 31 May 1989, Case 344/87, I Bettray v Staatssecretaris van Justitie, para 12.

520  Mélanie Schmitt Beyond this definition and as stated by Bruun, ‘it follows that all categories of worker at national level must enjoy protection’.81 Consequently, both private and public sector workers are covered. The General Court applied Article 30 in two cases where it had to rule on appeals against decisions of the Civil Service Tribunal, thus at least implicitly confirming that the personal scope of Article 30 extends to EU civil servants according to Article 51(1).82 Moreover, it seems that atypical workers, as well as workers engaged in new forms of non-standard work and employment relationships, are also entitled to protection. According to the CJEU, during the term of the fixed-term contract, the worker in principle benefits from the same protection against dismissal as a permanent worker.83 The consultation document related to the revision of Directive 91/533/EEC suggested that the Commission would follow such an inclusive interpretation, which still does not preclude Member States from regulating separately the different categories of workers on the basis of the duration of their employment relationship. But the right to protection in case of dismissal no longer appears in the set of ‘minimum requirements related to working conditions’, which are granted to all categories of workers by the Commission’s proposal on transparent and predictable working conditions.84 Furthermore, the requirement that the right is to be exercised in accordance with EU and national law should not lead to a reduction of the personal scope to ‘employees’. On the basis of the reference to Directive 2001/23/EC in the Explanation on Article 30, one may argue that protection against unjustified dismissal is limited to ‘any person who, in the Member State, is protected as an employee under national law’. In addition this Directive allows Member States to exclude some forms of casual or atypical work.85 Along the same lines, exclusion from protection against unjustified dismissal of certain categories of workers is provided by Article 24 RESC (in the Annex to the Social Charter) and by ILO Convention No 158: workers engaged on fixed-term contracts; workers serving a period of probation or a qualifying period of employment, provided these periods are determined in advance and of a reasonable duration; workers engaged on a casual basis for a short period.86 In my opinion, such limitations on the personal scope of Article 30 would contradict the very wording of Article 30

81 Bruun (n 63) 351. 82 Cases T-107/11 P, European Training Foundation (ETF) v Gisela Schuerings, para 100, and T-108/11 P, European Training Foundation (ETF) v Gustave Michel, para 101, available only in French. 83 CJEU, C-38/13, Nierodzik, ECLI:EU:C:2014:152. 84 Proposal for a Directive of the European Parliament and of the council on transparent and predictable working conditions in the European Union, 21 December 2017, COM(2017) 797 final. 85 Kenner (n 3). 86 Art 2 C158. Following the Commission’s proposal for a Directive on transparent and predictable working conditions in the EU (Art 7), Member States shall ensure that, where an employment relationship is subject to a probationary period, that period shall not exceed six months, including any extension. But they may provide for longer probationary periods in cases where this is justified by the nature of the employment or is in the interest of the worker.

Article 30  521 considering ‘every worker’. A broad interpretation is on the contrary supported by Directive 98/59/EC, which applies to ‘workers’. B.  Field of Application The issue is well known: Article 51(1) CFREU provides that Member States are bound by the provisions of the Charter only ‘when they are implementing Union law’. It results from settled case law87 that the fundamental rights guaranteed by the Charter ‘are applicable in all situations governed by EU law, but not outside such situations’.88 As the Explanations on Article 30 refer to the Transfer of Undertakings Directive 2001/23/EC and the Insolvency Directive 2008/94/EC, Article 30 is applicable when national legislations implementing these texts or falling within their scope are challenged. Conversely, this would not be the case for national situations or legislation related to Directive 98/59/EC, as stated by Advocate General Mengozzi in the Mono Car Styling case89 and Advocate General Wahl in the AGET Iraklis case. The CJEU has already declined jurisdiction on several occasions,90 considering that it has no competence to rule on cases in which there is no evidence that EU law has been implemented by (anti-crisis austerity measures laid down by) national legislation. In Nagy, the Court of Luxembourg held that the Hungarian legislation allowing the termination of civil servants’ employment relation without any justification and the resulting proceedings do not ‘concern the interpretation or application of a rule of the Union other than those contained in the Charter’, thus excluding the Court’s jurisdiction. As  a consequence of this narrow interpretation of the Charter’s scope, the CJEU did not answer the question asked by the referring court on the potential direct effect of Article 30 CFREU.91

87 CJEU, C‑617/10, Åkerberg Fransson, EU:C:2013:105, para 19; CJEU, C-256/11, Dereci, ECLI:EU:C:2011:734, para 71. 88 Aristea Koukiadaki, ch 6 ‘Field of Application (Article 51) and Restrictions (Article 52(1))’, in this volume. 89 ‘That qualification [‘unjustified’ dismissal] makes clear that the protection is not provided, as a fundamental individual right, with respect to every kind of irregularity that a dismissal might involve. It makes clear that there must be a serious irregularity, as might arise, for example, in relation to the actual merits of a decision to dismiss. Breaches of Directive 98/59, on the other hand, do not appear to be such as to justify reference to Article 30 of the Charter for, given the content of the directive, it is intended that the result of such breaches will be illegality of a formal/procedural kind.’ 90 CJEU, joined cases C-488/12, C-489/12, C-490/12, C-491/12 and C-526/12, Nagy and others (ECLI:EU:C:2013:703); CJEU, 10 December 2009, C-323/08, Mayor and others (ECLI:EU:C:2009:770). 91 See also Mayor and others, ibid: given that the Court found that a situation such as that at issue in the main proceedings does not fall within the scope of Directive 98/59, or, accordingly, within that of Community law, it is not necessary to answer the question whether the Spanish legislation on collective redundancies infringes Art 30.

522  Mélanie Schmitt The essential question was explicitly raised to the Court as to whether a national legislation establishing and regulating employment contracts of indefinite duration is implementing EU law, so that Article 30 would be applicable. In Polier,92 the CJEU held that, even though protection for workers in the event of the termination of the employment contract is one means of attaining the objectives laid down in Article 151 TFEU and even though the EU legislature has competence in this field in accordance with the conditions laid down in Article 153(2) TFEU, ‘situations that have not been covered by measures adopted on the basis of those provisions do not fall within the scope of EU law’.93 In Nisttahuz Poclava, a Spanish tribunal in addition argued that an employment contract of indefinite duration to support entrepreneurs, which was subject to a one-year probationary period during which the employee may freely be dismissed, falls within the scope of EU law. However, the CJEU rejected all of the referring court’s bold and imaginative arguments. First, such legislation does not fall within the scope of Directive 1999/70/EC because the contract at issue is not a fixed-term contract and, in any case, this Directive does not regulate the duration of probationary period. This literal interpretation developed by the Court is not surprising but the solution may have important implications with regard to the (in)effectiveness of Article 30, if national legislations can deprive workers of the protection of dismissal rules for a long and unreasonable duration. Important guidance is given by the ECSR, which finds that such a period of exclusion of six months ‘is not considered reasonable if it is applied indiscriminately, regardless of the employee’s qualifications’.94 Even more convincingly, the Spanish court in Nisttahuz Poclava relied on other EU law provisions that inspired or were closely linked to the national legislation at issue. As to the guidelines and recommendations in the field of employment policy adopted by the Council under Article 148 TFEU, which oriented the Spanish legislator, they were deemed to be an ineffective ground because they do ‘not impose any specific obligation with respect to probationary periods in employment contracts’. In a similar vein, the Court decided without any further justification that the fact that the employment contract of indefinite duration to support entrepreneurs may be financed by structural funds is not sufficient, in itself, to support the conclusion that the situation at issue in the main proceedings involves the implementation of EU law for the purposes of Article 51(1) of the Charter.

By rejecting this audacious argument put forward by the referred court, the CJEU sought to maintain its very narrow conception of Article 51(1) in the social policy field. The latter Court’s assertion is highly questionable, because the CJEU insisted on the text of Article 51(1) (‘implementation of EU law’),

92 Order

in case C‑361/07, EU:C:2008:16, Olivier Polier v Najar EURL, para 13. added. 94 ECSR, Digest of the case law of the European Committee of Social Rights, 2008, p 152. 93 Emphasis

Article 30  523 ignoring its own broader interpretation of this provision, which is to be understood as encompassing ‘the interpretation or application of a rule of the Union’ and ‘all situations governed by EU law’.95 Then it is clear from this case law that the Court’s intention is to limit the application of Article 30 to situations in which Member States formally implement EU legislation deemed to be relevant in the Court’s view. Following this very narrow interpretation would thus be covered exclusively under Article 51(1), secondary legislation that directly regulates dismissal terms and conditions by imposing specific obligations on Member States related to the cause of dismissal. Besides the Directives quoted in the Explanations on Article 30, all Directives protecting workers from discrimination in their employment and working conditions, including dismissal, are nevertheless concerned.96 C.  Specific Rights Article 30 provides no details on the requirements deriving from it. For the General Court, it follows that Article 30 does not establish precise obligations.97 The clear statement that ‘every worker’ is entitled to protection nevertheless implies that a probationary period (or other similar periods) of ‘unreasonable duration’ following ILO standards should be regarded as inconsistent with Article 30.98 i.  Material Scope There is a risk that the notion of ‘dismissal’ used in Article 30 may receive a narrow interpretation, compared with the broader notion of ‘termination of employment’. Most EU Member States make a distinction between dismissals in general terms and other forms of employment termination, such as ‘rescission’ (automatic termination) and summary dismissal.99 Article 24 RESC nonetheless should constitute a solid argument in favour of a broader interpretation of the term ‘dismissal’, so as to cover all forms of employment termination for unjustified reasons and resulting from the employer’s initiative. Terminations by mutual consent are logically excluded, unless they are used in a fraudulent way to circumvent dismissal law.

95 See Aristea Koukiadaki, ch 6 in the present volume. 96 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, prohibiting discrimination on the grounds of religion or belief, disability, age, and sexual orientation; Directive 2006/54/EC on the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). 97 Cases T-107/11 P, para 100, and T-108/11 P, para 101, available only in French. 98 Bruun (n 63) 351–52. 99 ibid, 348.

524  Mélanie Schmitt Article 30 should also be applicable to situations in which a worker takes the initiative as regards the termination of their employment relation by reason of the employer’s conduct. In our view, such ‘constructive dismissal’ should be covered by Article 30 at least when the employer is recognised as legally responsible for termination.100 ii.  Right to Justification and to Motivation The right to protection in the event of unjustified dismissal essentially means that every worker is granted the right not to be dismissed without a valid ground. According to the ILO CEACR, Convention No 158 establishes a ‘fundamental principle of justification’.101 More precisely, this implies two inseparable and interdependent elements: (i) every dismissal shall be justified, ie based on a valid ground; and (ii) every dismissal shall be motivated, which means that the worker must be informed of the reason why he has been dismissed. a.  Right Not to be Dismissed Without a Valid Ground Reading Article 30 a contrario requires that every worker should have the right not to be dismissed without a valid ground. Every dismissal must be justified, ie based on a legally accepted ground. 1.  Non-valid Grounds In EU law, termination of an employment relationship based on a discriminatory ground is prohibited. As a consequence, dismissals based on the ground of nationality (within the scope of Article 45 TFEU), sex, maternity, race or origin, sexual orientation, age, disability, religion or belief must be regarded as unjustified. The same goes for dismissal on the grounds of applying for or taking parental leave. For interpreting Article 30 with due regard to the Explanations (Article 6(1(3) TEU) Article 24 RESC is pertinent, defining the grounds that shall not constitute valid reasons as more important. They cover: trade union membership or participation in union activities; acting or having acted in the capacity of a workers’ representative; the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws; race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; maternity or parental leave; temporary absence from work due to illness or injury.102 Following the CJEU’s case law, the prohibition of discrimination based on fixed-term contracts,



100 For

a opposite opinion, see Kenner (n 3) 825. Direct Request – Luxembourg (2007). 102 See Schmitt (n 41). 101 CEACR

Article 30  525 ­ art-time work and, to a lesser extent, temporary work, should also be relevant p under Article 30.103 Furthermore, it results from ECtHR case law that every dismissal decided on the ground of a violation of a worker’s fundamental rights must be recognised as unjustified.104 2.  Personal and Economic Grounds In accordance with Article 24 RESC and ILO Convention No 158, A ­ rticle 30 is to be interpreted as covering both dismissals on individual grounds – w ­ orker’s behaviour (misconduct) or situation (incapacity) – and dismissals on economic grounds linked to the situation of the undertaking or service. The fact that national legislation and ILO Convention No 158 provide for different legal regimes depending on individual or economic grounds should have no implications for the employer’s obligation to have a valid ground to dismiss a worker. Neither does it follows that collective dismissals fall outside the ambit of ­Article 30. The ECSR’s most recent case shows that the Committee gives a very broad interpretation to the term ‘operational requirements’ found in Article 24, stating that it ‘may cover industrial or strategic measures considered necessary by the enterprise to maintain or improve competitiveness in a globalised market even when the enterprise is not per se in economic difficulty’.105 However, a collective dismissal decided on to increase the profits of the undertaking, establishment or service, or dismissals justified by outsourcing or subcontracting which has been done without economic necessity, do not violate Article 24 RESC.­ Moreover, temporary workers can be hired to do the jobs of the dismissed employees. This economic-liberal approach is based on the ‘employers’ right to manage their enterprise’, which corresponds to the freedom of business (over) protected in Article 16 CFREU.106 b.  Right to be Informed of the Reasons for Dismissal ILO Convention No 158 requires that workers be informed of the reasons for their dismissal. Judge Pinto de Albuquerque supports this requirement, as well as national dismissal legislations.107 Therefore, it is not surprising that the EPSR (Principle 7(b)) consolidates this specific right, stating that ‘workers have the right to be informed of the reasons’ for their dismissal. 103 See above s I.C.i.b. 104 Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union, 2006, p 262. 105 Collective Complaint (CC), No 74/2011, Fellesforbundet for Sjøfolk (FFFS) v Norway. 106 See Bruno Veneziani, ch 17 in the present volume. 107 See European Labour Law Network, Dismissal – particularly for business reasons – and employment protection. Thematic Report 2011, p 32 (available at: www.labourlawnetwork.eu/publications/ prm/73/size__1/index.html).

526  Mélanie Schmitt It is worth noting that, according to the Pillar, information shall be given ‘prior to any dismissal’, while this requirement is not explicitly imposed by Article 7 ILO Convention No 158. The same goes for the ‘minimum content in European human rights law’ described by Judge Pinto de Albuquerque, including ‘a pre-termination opportunity to respond given to the employee’, which presupposes that the worker was previously informed of the ground of the as yet only envisaged dismissal. This guarantee results less obviously from Article 24 RESC, which is (more) focused on judicial proceedings. However, the ECSR examines conformity of national situations to the ‘obligation to provide a valid reason for termination of employment’ (emphasis added). As a consequence, one can argue that workers have the right to be informed, at least upon request. Regarding formal and procedural requirements concretising that right, it has to be highlighted that considerable differences exist between national laws.108 In its first preliminary Outline of a European Pillar of Social Rights, the wording of the right was slightly different: ‘Dismissal of a worker is to be motivated …’. The difference is indeed significant, between the right to be informed of the reasons prior to dismissal, on one hand, and the employer’s obligation to motivate the decision at the moment it is taken, on the other hand.109 There is an essential divergence in terms of the aims being pursued. More profoundly, one may insist on the difference between an obligation to motivate and an obligation to justify a decision. The former only requires the employer to express or notify the reasons on which the decision is based, whereas the latter is more demanding and implies that the reason expressed be acceptable from a legal point of view. A written notification of the reasons for dismissal when the employer takes the decision constitutes, then, a key element in the perspective of an appeal challenging these reasons. In line with the ECtHR case law under Article 6,110 a written justification (ie the motivation) will enable the preparation of the worker’s defence in the judicial proceedings. iii.  Right to Challenge the Dismissal’s Ground and the Right to Appropriate Relief It results from the wording of the right to protection ‘in the event of unjustified dismissal’ that protection must be granted to workers when their dismissal has been judged to be unjustified. Such protection lies in: (i) the right to challenge the reasons of the dismissal before an impartial body; and (ii) the right to obtain appropriate relief. These two specific rights are explicitly imposed by Article 24

108 European Labour Law Network, Dismissal (2011), p 110. 109 It is interesting to note that the wording of the Pillar has switched from the employer’s point of view and his or her obligation to motivate dismissals (point 7 c of the first outline of the Pillar), to workers’ right to be informed (point 7 b of the Pillar). 110 See above s I.C.ii.b. Art 47 CFREU supports this analysis. See Klaus Lörcher, ch 27 ‘Article 47’, in this volume.

Article 30  527 RESC, drawing on ILO Convention No 158. The EPSR consolidates these requirements, granting all workers ‘the right to access to effective and impartial dispute resolution and, in case of unjustified dismissal, a right to redress, including adequate compensation’.111 a.  Right to Challenge the Ground of the Dismissal In combination with the ‘right to an effective remedy before a tribunal’ proclaimed in Article 47 CFREU, Article 30 must be interpreted as entailing a right for every worker to contest the ground of his or her dismissal. This judicial prolongation of the right not to be dismissed without a valid ground appears to be central in Article 30’s wording. One can indeed argue that, following a purely literal and formal reading, proclaiming the right to protection in the event of unjustified dismissal presupposes that ‘somebody’ has the power to decide or recognise that the dismissal is unjustified. In line with Article 24 RESC, ILO Convention No 158 and the ECtHR case law based on Article 6 (1) ECHR, it results from Article 30 that all workers are entitled to challenge the legality of their dismissal before an impartial body and to have access to effective dispute resolution. Pursuant to Article 8(1) ILO Convention No 158, an impartial body can be, in particular, ‘a court, labour tribunal, arbitration committee or arbitrator’. Moreover, the ILO CEACR considers that the requirement of impartiality means, for example, that a hierarchical administrative appeal procedure cannot be considered as the appropriate form of appeal under the provisions of the Convention: where such a procedure exists, provision must be made for a subsequent appeal to an impartial body.112

In his separate opinion in KMC v Hungary, the Portuguese judge at the ECtHR, Mr Pinto de Albuquerque, insisted on the importance of this body’s ‘powers to verify the factual and legal aspects of the appealed decision’.113 In the same vein, the recent ECSR case law gives important guidance relating to dismissals on economic grounds. The ECSR indeed emphasises ‘that the right of appeal to an independent body … implies that this body is empowered to examine at the very least the facts underlying economic measures’.114 This statement goes beyond the provisions of Articles 8 and 9 ILO Convention No 158, which allow each Member State to determine the extent to which the competent bodies

111 Again, the Commission’s first preliminary Outline of a ‘European Pillar of Social Rights’ opted for another wording, according to which: “Dismissal of a worker is to be motivated, preceded by a reasonable period of notice, and there shall be an adequate compensation attached to it as well as access to rapid and effective appeal to an impartial dispute resolution system’ (COM(2016) 127 final, point 7 c)). 112 ILO (n 62) para 178. 113 KMC v Hungary (n 55). 114 Conclusions 2003, Bulgaria.

528  Mélanie Schmitt should be authorised to review the employer’s judgement as to the sufficiency of reasons based on operational requirements; each country is therefore authorised to restrict the powers of the competent body, when investigating whether termination of employment was justified, to review the employer’s judgement in relation to workforce numbers.115 However, as I previously suggested,116 the courts should at least be empowered to consider the reality of the undertaking’s economic situation, as well as the necessity and proportionality of the dismissal, which means that the link between these two elements should be subject to the court’s scrutiny. b.  Right to Redress Following guidance given by the ECSR, the right to redress includes reinstatement and adequate compensation. Article 24 RESC requires from States that their legislation provides for the possibility of reinstatement in case of unlawful dismissal.117 In its most recent case law, the ECSR has found that the obligation to re-employ employees made redundant for financial or production-related reasons during the following nine months cannot be regarded as a substitute for reinstatement as it has a limited scope of application and does not have as its purpose the reinstatement of workers unlawfully dismissed.118 However, reinstatement is explicitly imposed by the ECSR only in cases of discriminatory dismissal. Apart from these cases, it is not clear from the ECSR case law whether reinstatement has to be enshrined as a right for workers following the ‘restitutio ad integrum’ principle also recognised by the ECtHR or only one possible relief among others left to the courts’ ­discretion. As for compensation due to workers, the ECSR holds that decisions ruling a dismissal null and void and ordering the employee’s reinstatement must, at a minimum, be accompanied by an entitlement to receive the full remuneration that would have been payable between the date of the dismissal and that of the court decision or effective reinstatement.119 Furthermore ‘compensation for unlawful dismissal must be both proportionate to the loss suffered by the victim and sufficiently dissuasive for employers’.120 Consequently, any ceiling that may preclude damages from being in conformity with these requirements are proscribed. If there is such a ceiling on compensation for pecuniary damage, the victim must be able to seek compensation for non-pecuniary damage through other legal avenues (eg anti-discrimination legislation).121 For instance,

115 ILO

(n 62) para 214. Schmitt (n 41). 117 Conclusions 2012, Finland. 118 Case No 106/2014, Finnish Society of Social Rights. 119 Conclusions 2003, Bulgaria. 120 Conclusions 2012, Finland. 121 ibid. 116 See

Article 30  529 c­ ompensation subject to an upper limit of 24 months is not in conformity with Article 24 RESC because the Tort Liability Act does not provide a full-fledged alternative legal avenue for the victims of unlawful dismissal not linked to discrimination.122 iv.  Other Specific Rights Prior to Dismissal a.  Right to a Period of Notice It is not surprising that Article 24 RESC ignores the right to a period of notice as this right is afforded in Article 4(4) RESC as an element of the right to a fair remuneration. The connection between these two provisions is recognised by the ECSR.123 It may be noted that, according to the Appendix to the Charter, Article 4(4) RESC ‘shall be so understood as not to prohibit immediate dismissal for any serious offence’. This is in line with ILO Convention No 158, according to which ‘a worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct’.124 In EU law, the right to a period of notice indirectly results from Directive 91/533/EEC, which lists the length of the period of notice as one of the essential aspects of the contract or employment relations.125 Principle 7 of the EPSR draws the consequences from all these provisions, stating that ‘workers have the right to … be granted a reasonable period of notice’. b.  Right to a Defence and to be Heard by the Employer Drawing on Article 24 RESC, Article 30, not surprisingly, focuses on the right to challenge the legality of dismissal and thus on judicial proceedings. The EPSR totally ignores the right to a defence prior to dismissal. This omission may also be explained by the ‘major differences exist[ing] between the national systems. In many countries there is no (universal) right to be heard’.126 However, ILO Convention No 158 (Article 7) ‘establishes the principle that the worker, before his employment is terminated, must have an opportunity to defend himself against the allegations made, which presupposes that the latter 122 Conclusions 2017, Finland. 123 See GENOP-DEI and ADEDY v Greece, Collective Complaint No 65/2011, para 25 ff. 124 C158, Article 11. 125 More precisely, Directive 91/533 addresses ‘the length of the periods of notice to be observed by the employer and the employee should their contract or employment relationship be terminated or, where this cannot be indicated when the information is given, the method for determining such periods of notice’ (Art 2 para 2 g). The Commission’s proposal for a Directive on transparent and predictable working conditions in the EU (COM/2017/0797 final) extends this obligation to information on ‘the procedure, including the length of the period of notice’ (Art 3.2 (i)). 126 European Labour Law Network (2011) 110.

530  Mélanie Schmitt should be expressed and brought to his attention before the termination’.127 While such a guarantee results less obviously from Article 24 RESC, notification of the reason for dismissal could nevertheless be included in this analysis with a view to enabling the preparation of a defence and thus guaranteeing procedural fairness not only in judicial proceedings but also prior to dismissal. D. Limitations i.  Internal Limitations The requirement whereby the right to protection against unjustified dismissal is to be exercised ‘in accordance with Union law and national laws and practices’, affects directly and immediately the potential of Article 30.128 As long as only specific and partial EU provisions apply in certain circumstances, Article 30 will not cover all dismissals decided in every situation covered by domestic law. Furthermore, the exclusion of Directive 98/59/EC from secondary legislation related to Article 30 calls into question the purpose of this provision to cover dismissals based on economic grounds. This exclusion appears all the more unjustified because, contrary to the Court’s assertion in AGET Iraklis,129 the first objective of the consultation process laid down in Directive 98/59 is to avoid or reduce the number of collective dismissals.130 Consultation of workers’ representatives cannot be reduced to a formal and procedural dimension. In contrast with Advocate General Mengozzi’s opinion in Mono Car Styling,131 I would argue that it results from the Directive 98/59/EC provisions that the consultation process has a (very important) substantive dimension, thus contributing to the validity and justification of dismissals that could not have been avoided. It is then reasonable to argue that dismissals decided in the absence of any consultation of workers’ representatives should be considered to be irregular. In that perspective, the ECSR case law should not be invoked in order to ‘disqualify’ the consultation process as part of the dismissal’s validity. It is true that the ECSR makes a clear distinction between collective aspects of the dismissal process and the right of individual employees to contest the lawfulness

127 ILO (n 62) para 146. This right for the worker to defend himself before dismissal is not afforded by ILO C158 when dismissal is based on economic grounds. 128 A Martinon, ‘Article 30’ in F Picod, S Van Drooghenbroeck (eds), Charte des droits fondamentaux de l’Union européenne (Bruxelles, Bruylant, 2018) 665–77. 129 The Court highlights ‘the absence, especially, of any rules of EU law that are intended to prevent such redundancies and go beyond the fields of information and consultation covered by Directive 98/59’ (AGET Iraklis, para 92). 130 Directive 98/59, Art 2 para 2, ‘These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant.’ 131 Case C-12/08, Mono Car Styling, Opinion, ECLI:EU:C:2009:24, para 97.

Article 30  531 of their being made redundant, although only the latter is examined with reference to Article 24 RESC.132 However, this distinction appears to be motivated by pragmatic purposes related to the ‘rationalisation’ of the mechanism of national reports, which is needed because of certain features of the (R)ESC (the so-called ‘à la carte’ system); it aims at avoiding overlaps in the supervision of Article 24 RESC and Article 29 RESC. Nevertheless, Member States are allowed to provide for limitations on the right to challenge the economic ground of a dismissal taking place in the context of collective dismissals under Directive 98/59/EC. Because of the collective nature of the right to information and consultation, the Court of Justice found in Mono Car Styling133 that the Directive does not prevent national legislation putting limits on individual rights to ensure compliance with these information and consultation rights. As a result, national limits on individual rights do not breach guarantees of effective judicial protection. In our view, the question remains as to whether this attempt to strictly separate the collective and individual dimensions, even though they are so closely intertwined, may lead to a breach of Article 30. However, there should be no doubt that, by placing limits on the worker’s individual right to challenge the validity of his or her dismissal in accordance with Directive 98/59/EC, national legislations fall within the ambit of Article 30. ii.  External Limitations CJEU case law shows the conflicting relationship between Article 30 and­ Article 16 CFREU and the freedom to conduct a business. This can be regarded as reflecting the tension between two approaches: (i) a ‘social’ approach to the right to be protected in the event of unjustified dismissal, which should always be balanced with (ii) an economic approach to employment protection legislation. This is particularly apparent in AGET Iraklis, in which the Court agreed to incorporate Article 30 in its reasoning but only as a ‘right of others’ that may constitute a limitation of the freedom to conduct a business, enshrined in Article 16. Thus, a national regime imposing … [an administrative authorization for collective dismissals], must seek, in this sensitive area, to reconcile and to strike a fair balance between the interests connected with the protection of workers and of employment, in particular protection against unjustified dismissal and against the consequences of collective dismissals for workers, and those relating to freedom of establishment and the freedom of economic operators to conduct a business enshrined in Articles 49 TFEU and Article 16 of the Charter.

While holding that such a framework can in principle be a valid way of satisfying the principle of proportionality and is therefore capable of complying

132 ECSR, 133 Mono

Conclusions 2003, Statement of Interpretation on Article 29. Car Styling (n 131).

532  Mélanie Schmitt with Article 16, the Court concluded that the criteria defined by the national legislation in the present instance are formulated in very general and imprecise terms and are not founded on objective and verifiable conditions, as a result of which they do not comply with the requirements stemming from the principle of proportionality.134 It is worth noting that the ECSR unexpectedly seems to adopt this way of thinking when stating that ‘Article 24 of the [European Social] Charter requires a balance to be struck between employers’ right to manage their enterprise as they see fit and the need to protect the rights of the employees’.135 iii.  Limitations on Limitations Is it possible to define the minimum level of protection that always has to be respected, that is, the ‘essence’ of the right to protection against unjustified dismissal? Answering this question is not easy because of both international and national legal contexts, as pointed out by Hepple.136 Article 30 does not proclaim a ‘corresponding right’ according to Article 52(3). Moreover, its international source of inspiration lies in an instrument  – ILO Convention No 158 – which is not ratified by all EU Member States, so that Article 53 should not be activated to impose an interpretation of Article 30 consistent with the minimum level of protection of ILO standards. Article 24 RESC likewise has not been accepted by all EU Member States. However, on the basis of the Explanations of the Charter, it is arguable that interpretation of Article 30 must incorporate at least the specific requirements laid down in Article 24 RESC.137 Hepple hence suggests that Article 30, interpreted in light of Article 24 RESC, contains the only European common principle on dismissal. Further to this statement, it may be argued that, from the reference to Article  24 RESC in the Explanations of the Charter, combined with the ­ ECtHR case law,138 and the recent initiatives undertaken by the European Commission – that is, the EPSR and the proposal to revise Directive 91/533/EC (in its initial version) – it is possible to define the essence of the right to protection against dismissal. The main idea is that no dismissal shall occur without a valid cause. This implies: (i) a right to be informed of the cause at least at the moment the dismissal is decided; (ii) a right to challenge the ground of the dismissal before a court (or another impartial body); and (iii) a right to appropriate relief in case of unjustified dismissal. Conversely, these rights imply



134 For

critical observations on this judgment, see S Deakin, ch 4 in this volume.

135 ibid. 136 B

Hepple, ‘Dismissal Law in Context’ (2012) 3 (3) European Labour Law Journal 207–14. a same statement but based on Art 53, see Bruun (n 63) 351. 138 See above s I.C.ii. 137 For

Article 30  533 important obligations for employers and, more particularly, the principle that the burden of proof of the just cause for dismissal shall lie with the employer. Judge Pinto de Albuquerque consolidates this approach by stating that the right to protection in the event of termination of employment has a minimum content in European human rights law, consisting of four core requirements: a formal written notice of termination of employment given to the employee, a pre-­termination opportunity to respond given to the employee, a valid reason for termination, and an appeal to an independent body.139

E. Enforcement Directives quoted in the Explanation of Article 30 require from States ‘effective, proportionate and dissuasive’ sanctions. These traditional requirements in Union law should receive particular attention in situations in which workers have been unlawfully deprived of their job in violation of Article 30. Regarding this issue, it is not clear whether the ECtHR has a precise vision of sanctions that are to be applied in the case of unjustified dismissal. In the Tek Gida case,140 the Court found that mere and, what is more, insufficiently dissuasive compensation cannot be considered an appropriate sanction for unfair dismissal. The choice given to employers between reinstatement and such compensation has been analysed as a violation of Article 11 ECHR. Consequently, Turkey failed to fulfil its positive obligation to prevent the employer from dismissing all the employees who were members of the applicant trade union by means of wrongful dismissals. In Guja against the Republic of Moldova,141 the Court held that States in principle remain free to choose the means by which they will comply with their obligation to restore as far as possible the situation existing before the breach, but, when the Court imposes reinstatement of the civil servant dismissed in violation of Article 10 ECHR, the State must provide genuine reinstatement to the worker. In Oleksander Volkov v Ukraine, the ECtHR even (admittedly very exceptionally) ordered the reinstatement of the applicant.142

139 KMC v Hungary (n 55). See my chapter on Art 24 RESC in the previous TTUR book: M Schmitt, ‘Article 24 – The Right to Protection in Cases of Termination of Employment’ in N Bruun, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017). 140 ECtHR, 4 April 2017, No 35009/05, Tek Gida Is Sendikasv Turquie. 141 ECtHR [GC], 27 February 2018, No 1085/10, Guja v Moldova. In this second Guja case, the Court found that, despite claiming to abide by its earlier judgment, the Government of Moldova had never intended truly to reinstate the applicant. In reality, his second dismissal was a continued retributory measure in response to his whistle-blowing in 2003. Furthermore, the domestic courts had contributed to the violation of the applicant’s rights by refusing to examine his allegations and evidence, and by ignoring the principles set out in the earlier Guja case. 142 ECtHR, 9 January 2013, No 21722/1, Oleksandr Volkov v Ukraine.

534  Mélanie Schmitt III. CONCLUSION

Article 30 has not yet revealed its potential. A conjunction of factors may explain the quasi absence of references made to Article 30, with the exception of recent non-legislative texts; but the essential explication without any doubt lies in the limits the right to protection against unjustified dismissal imposes on the employer’s prerogatives. However, such an argument should be given less importance in the perspective of the worker’s dignity protected as a core value within the Charter itself, as well as of the worker’s ‘social identity’ which brought the ECtHR also to include the protection against unfair dismissal under Article 8 ECHR.

24 Article 31 – Fair and Just Working Conditions KLAUS LÖRCHER

Article 31 – The right to safe and healthy working conditions 1.  Every worker has the right to working conditions which respect his or her health, safety and dignity. 2.  Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

EXPLANATIONS Paragraph 1 of this Article is based on Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work. It also draws on Article 3 of the Social Charter and point 19 of the Community Charter on the Rights of Workers and, as regards dignity at work, on Article 26 of the revised Social Charter. The expression ‘working conditions’ is to be understood in the sense of Article 156 of the Treaty on the Functioning of the European Union. Paragraph 2 is based on Directive 93/104/EC concerning certain aspects of the organisation of working time, Article 2 of the European Social Charter and point 8 of the Community Charter on the Rights of Workers.

I. INTRODUCTION

A.  Context and Main Content Decent work has become a universal objective and has been included in major human rights declarations, UN Resolutions and outcome documents from major conferences, including Article 23 of the Universal Declaration of Human Rights (UDHR 1948), the World Summit for Social Development (1995), the World

536  Klaus Lörcher Summit Outcome Document (2005), the Second United Nations Decade for the Eradication of Poverty (2008–17), the Conference on Sustainable Development (2011) and in the UN’s 2030 Agenda for Sustainable Development (2015).1 Health and safety, being closely related to the right to life but more generally also to human dignity, form an important part of ‘decent work’. This is particularly true because it is the worker who possibly sacrifices his or her health for the employer. That is why the ‘right to safe and healthy working conditions’ is of the utmost importance for everyday working life. In the words of B Bercusson: ‘Article 31 … transforms the general objective of labour law as a whole into a subjective right of all workers, and elevates this subjective right … to the status of a fundamental social right.’2 In particular, the obligation to respect dignity with regard to working conditions is a major achievement. Concerning workers’ health, one might assume that it is protected effectively in particular in the EU Member States, but reality is different. At global level, ‘2.78 million workers continue to die each year from work-related injuries and illnesses’;3 at EU level, in 2014, there were close to 3.2 million non-fatal accidents that resulted in at least four calendar days of absence from work and 3739 fatal accidents …, a ratio of approximately 850 non-fatal accidents for every fatal one. There was a slight increase in the number of accidents at work in the EU-28 between 2013 and 2014, with 49 thousand more non-fatal accidents and 65 more fatal accidents.4

But EU figures relate only to accidents, whereas diseases are becoming more and more important. In sum, it is still alarming that the health of workers still lacks sufficient protection.5 In its most recent examination of the requirements stemming from the European Social Charter (ESC) the European Committee of Social Rights (ECSR) found that many States had still failed to take adequate steps to reduce the high number of fatal accidents at the workplace.6 The dangers and risks are still present and probably increasing. So-called ‘Industry 4.0’, crowd-working, occupational stress, continuous work, excessive working times, job insecurity, burn out, austerity measures and so on might

1 See also for further references, ILO, Decent Work, http://www.ilo.org/global/topics/decentwork/lang--en/index.htm. 2 B Bercusson, European Labour Law 2nd edn (Cambridge, Cambridge University Press, 2009) 380. 3 XXI World Congress on Safety and Health at Work: A Global Forum for Prevention (­September 2017), http://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_573118/lang--en/ index.htm. 4 http://ec.europa.eu/eurostat/statistics-explained/index.php/Accidents_at_work_statistics. 5 See also A Ponce del Castillo, ‘Santé et sécurité au travail au sein de l’UE: revenir à l’essentiel’ in B Vanhercke, D Natali and D Bouget (eds), Bilan social de l’Union européenne 2016 (Brussels, Institut syndical européen (ETUI) et Observatoire social européen (OSE) Bruxelles, 2016) 137–63. 6 Council of Europe, 24.1.2018, Press release (Ref. DC 006(2018)).

Article 31  537 serve as illustrative examples. Accordingly, the fundamental right to protection has to be adapted to these new challenges. Occupational health and safety can be seen as one of the two fundamental areas that have been instrumental in building a social dimension of the EU, along with discrimination issues. It has become fully emancipated from the original approach, with the strengthening of the single market (Single E ­ uropean Act  1987), culminating in the newly created social right to healthy working conditions. It can therefore be considered an essential element of the European social model. The right to fair and just working conditions obtains its specific relevance against this background.7 Article 31 contains the right for every worker ‘to working conditions which respect his or her health, safety and dignity’ in a general way (paragraph 1) and in a more specific way in relation to working time (­paragraph 2). Besides combating discrimination, health and safety can be considered one of the core elements of EU secondary legislation in the social field. B.  Relationship to Other Provisions of the Charter This right is directly linked to (human) ‘dignity’ (Article 1) in two ways.8 The very wording of Article 31(1) shows it to be an explicit and integral part of this right. But the reference to ‘health and safety’ also paves the way to this (most) fundamental right more generally. Indeed, the inclusion of ‘dignity’ in Article 31, and the obvious connections with Article 1, suggest that Article 31 is an especially weighty fundamental right, compared with other labour rights in the Solidarity chapter.9 This is confirmed by the close relationship to other rights guaranteed in Title I (Dignity), in particular the right to life (Article 2) and the right to the integrity of the person (Article 3). The link to the prohibition of slavery and forced labour (Article 5)10 is also evident. Therefore, this right should be considered to be centred around human dignity. But the relationship to other provisions of the Charter also opens Article 31 up to several further fundamental rights dimensions, such as the ‘Freedoms’ 7 For detailed commentaries on Art 31, see Alan Bogg, ‘Article 31 – Fair and Just Working Conditions’ in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 833ff; Sophie Robin-Olivier, ‘Article 31 – Conditions de travail justes et equitables’ in Fabrice Picod and Sébastien van Drooghenbroeck (eds), Charte des droits fondamentaux de l’Union européenne. Commentaire article par article (Brussels, Bruylant, 2018) 679ff; Beate Rudolf, ‘Artikel 31 – Gerechte und faire ­Arbeitsbedingungen’ in J Meyer (ed), Charta der Grundrechte der Europäischen Union, 4th ed (Baden Baden, Nomos Verlag, 2014) 499ff. 8 See ch 9 on Art 1 in this publication. 9 Bogg (n 7) para 31.05. 10 See ch 10 on Art 5 in this publication; see also Bogg (n 7) para 31.09, highlighting that if ‘individually ‘agreed’ derogations [from Art 31] appear tainted by coercion or other forms of economic exploitation, it may be that Article 5(2) is engaged’.

538  Klaus Lörcher enshrined in Title II. In particular, the respect for private and family life (­Article 7),11 the protection of personal data (Article 8)12 and especially freedom of association (Article 12)13 have a direct relationship with Article 33, which is confirmed by the further collective rights guaranteed in the ‘Solidarity’ Title IV under Articles 2714 and 28.15 Both rights exhibit a collective dimension. Obviously, the prohibition of child labour and protection of young people at work (Article 32)16 and the reconciliation of family and professional life (­Article  33)17 are also closely linked to healthy and safe working conditions. More generally, Article 35 provides that ‘[a] high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’.18 In a more transversal way, the gender equality dimension (Article 23) requires that it be ensured that working conditions respecting health and dignity are not only in full conformity with equality between women and men, in particular in relation to working time, but also contribute to the effective implementation of equality in the workplace. C.  Relationship to Other Relevant Instruments i.  EU Instruments Concerning EU law, several developments should be taken into account. In relation to paragraph 1, the Explanations start by referring to (‘is based on’) the main secondary legislation instrument, the so-called ‘Framework Directive’ 89/391/EEC on safety and health’,19 which can be considered ‘basic law’ on safety and health, forming an integral part of this fundamental right. It has made the fundamental right to occupational health and safety operational and will serve as the basis for the former. In the meantime, this directive has been

11 See ch 11 on Art 7 in this publication. 12 See ch 12 on Art 8 in this publication. 13 See ch 15 on Art 12 in this publication. 14 See ch 21 on Art 27 in this publication. 15 See ch 22 on Art 28 in this publication; see also Bogg (n 7) para 31.05, highlighting that ‘­Article 31 can be used to augment the weight of Article 28’. 16 See ch 25 on Art 32 in this publication; see also Bogg (n 7) para 31.10. 17 See ch 26 on Art 33 in this publication; see also Bogg (n 7) para 31.09, in particular in relation to the working time provisions in para 2 of Art 31. 18 See also Art 168(1) TFEU with nearly the same wording containing the word ‘the’ at the end, thus reading ‘all the Union policies and activities’. For international and European standards in relation to health care see the ECtHR’s Grand Chamber judgment of 19.12.2017 – No 56080/13 (De Sousa Fernandes), paras 110–21, and in an even more extensive way, the Separate Opinion by Judge Pinto De Albuquerque (paras 3–59). 19 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work [1989] OJ L183/1.

Article 31  539 supplemented by about 20 individual directives regulating specific aspects.20 Besides these directives, Directive 91/383/EEC regulates two specific areas that often are related to specific risks of workers with a fixed-term contract or a temporary employment relationship. The Explanations continue, referring to (‘also draws on’) Point 19 (in the separate chapter on ‘Health protection and safety at the workplace’)21 of the Community Charter of the Fundamental Social Rights of Workers (Community Charter 1989).22 In its Preamble it refers for ‘inspiration’ to the Conventions of the ILO (section I.C.iii) and the European Social Charter (section I.C.ii). This Charter has acquired a specific role in EU primary law because of the references in the fifth recital of the preamble of the TEU and in Article 151(1) TFEU and the references by the CJEU,23 in particular to Points 8 (see below) and 19.24 Moreover, it should be noted that the Social Partners have concluded an autonomous Framework agreement on work-related stress (2004). On the basis of the social policy objectives defined in Article 151(1) TFEU the additional and specific objective of ‘improvement in particular of the working environment to protect workers’ health and safety’ mentioned in Article 153(1)(a) TFEU is particularly important. Besides health and safety the (protection of) workers’ dignity is a qualitatively new element. The basis can be found in a Commission Recommendation adopted in 1991,25 but secondary legislation has been further developed not only in relation to health and safety26 but also in relation to anti-discrimination.27

20 For an overview of all relevant directives, see the website of the European Agency for Safety and Health at Work (EU-OHSA), in particular in the section on ‘legislation’, https://osha.europa.eu/en/ safety-and-health-legislation/european-directives. Concerning the history with specific reference to the ‘Action Programme relating to the implementation of the Community Charter’ (COM(89) 568 final, 29.11.1989), see A Byre, EC Social Policy and 1992 – Laws, Cases and Materials (Deventer, Kluwer, 1992) 246–380. 21 Point 19(1): ‘Every worker must enjoy satisfactory health and safety conditions in his working environment. Appropriate measures must be taken in order to achieve further harmonization of conditions in this area while maintaining the improvements made.’ 22 Commission of the European Communities (ed), Community Charter of the Fundamental Social Rights of Workers (Luxembourg, 1990). See B Bercusson, ‘The European Community’s Charter of Fundamental Social Rights of Workers’ (1990) 53 The Modern Law Review, New Perspectives on European Law 624, reprinted in: ETUI-TTUR (eds), Labour Law and Social Europe – Selected Writings of Brian Bercusson (Brussels, 2009) 55 ff. 23 CJEU 16.7.2015 – C‑222/14 (Maïstrellis), para 38; 7.2.2014 – C‑588/12 (Lyreco Belgium), para 32; see also 22. 4.2010 – C-486/08 (Zentralbetriebsrat der Landeskrankenhäuser Tirols), para 52; 10.12.2009 – C-323/08 (Rodríguez Mayor), para 52; 23.4.2009 – C-378/07 to C-380/07 (Angelidaki et al), ECR 2009, I-3071, para 112. 24 CJEU 7.9.2006 – C-484/04 (Commission/United Kingdom), ECR 2006, I-7471, para 35; 1.12.2005 – C-14/04 (Dellas et al), para 40; 9.3.2004 – C-397/01 to C-403/01 (Pfeiffer et al), para 91; 26.6.2001 – C-173/99 (BECTU), para 37. 25 Commission Recommendation 92/131/EEC of 27 November 1991 on the protection of the dignity of women and men at work, OJ L 49, 24.2.1992, pp 1–8. 26 Art 6(2)(g) Directive 89/391/EEC (‘social relationships’). 27 By defining ‘harassment’ as a form of discrimination, see Art 2(3) Directives 2000/43/EC and 2000/78/EC, as well as Art 2(1)(c) for harassment and (d) for sexual harassment of Directive 2006/54/

540  Klaus Lörcher Moreover, the social partners have concluded an autonomous Framework agreement on harassment and violence at work (2007).28 In its Principle 10(a) the European Pillar of Social Rights (EPSR) provides that ‘[w]orkers have the right to a high level of protection of their health and safety at work’, thus confirming the quality requirements of this right. This was preceded by a Commission Communication on modernising the respective legislations containing some concrete measures but almost no (proposals for) new legislation.29 More generally, it is interesting to note that the Commission, in its recent proposal for a Directive on transparent and predictable working conditions in the EU,30 starts the Preamble with a reference to Article 31 citing both paragraphs as first recital. This connection is all the more important as it confirms the relationship to Article 2 of the Revised European Social Charter (RESC, see below (section I.C.ii)) providing in its paragraph 6 for the information on essential aspects of the employment contract or relationship. Concerning the specific aspect of working time in paragraph 2 a set of legislative acts has been adopted at EU level. Again, the Explanations refer to (‘is based on’) the (first) Working Time Directive 93/104/EC, as well as to Point 8 of the Community Charter (1989),31 which covers only weekly rest and annual paid leave (but, on the other hand, requires that their duration ‘must be progressively harmonised in accordance with national practice’), whereas the former instrument has wider scope (including, in particular, weekly maximum working hours), although it was based upon the Action Programme that accompanied the Community Charter.32 Moreover, this Directive was repealed by Directive 2003/88/EC.33 Against this background, it cannot be explained why the EPSR does not contain any confirmation of this very important fundamental social right. EC. Another example in relation to night work and breastfeeding is dealt with in CJEU 19 ­September 2018, C‑41 /17, González Castro). 28 The Social Partners have published a report on the implementation of this agreement, https:// www.etuc.org/IMG/pdf/BROCHURE_harassment7_2_.pdf (Final joint report by the European Social Partner, adopted at the Social Dialogue Committee on 27 October 2011). 29 Safer and Healthier Work for All – Modernisation of the EU Occupational Safety and Health Legislation and Policy, COM(2017) 12 final. 10.1.2017 (see in particular the measures envisaged pp 19ff). 30 COM(2017) 797 final, 21.12.2017; this initiative is also based on EPSR (Principle 7(a): Information about employment conditions, see C(2017) 2611 final, 26.4.2017, accompanied by inter alia SWD(2017) 201 final, 26.4.2017, for more details, see in particular p 41 f) 31 In its jurisprudence the CJEU referred to Points 8 and 19 of the Community Charter several times (CJEU 7.9.2006 – C-484/04, ECR 2006, I-7471 (Commission v United Kingdom), para 35; 1.12.2005 – C-14/04 (Dellas et al), para 40; 9.3.2004 – C-397/01 – C-403/01 (Pfeiffer et al), para 91; 26.6.2001 – C-173/99 (BECTU), para 37). 32 See Byre (n 20) 42–43, with the Commission’s proposal, 61–65. 33 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, OJ L 299, 18.11.2003, 9–19 (­Article 27 – Repeal).

Article 31  541 Concerning social dialogue, it should be noted that the sectoral social partners have concluded an ‘Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union’, which has been implemented according to Article 155(2) TFEU by Directive 2003/88 (Article 21). Moreover, for the mobile workers in Civil Aviation a sectoral social partner agreement has been implemented by a specific Council Directive 2000/79/EC.34 ii.  Council of Europe Instruments According to the Explanations, paragraph 1 ‘draws on’ Article 3 (The right to safe and healthy working conditions)35 of the European Social Charter (ESC) for working conditions which respect health and safety and on Article 26 (The Right to Dignity at Work)36 of the Revised European Social Charter (RESC) for working conditions which respect dignity. These references illustrate the importance the Explanations attach to the relevant provisions of the ESC (Article 6(1)(3) TEU), irrespective of the status of acceptance by the EU Member States. For interpretative purposes account has to be taken of the case law of the European Committee of Social Rights (ECSR),37 according to which States’ first obligation under Article 3 ESC is to ensure the right to safe and healthy working standards at the highest possible level.38 Although not mentioned in the Explanations, there is nevertheless a direct link to the European Convention on Human Rights (ECHR). While not conceived primarily to protect workers’ rights the jurisprudence of the European Court of Human Rights (ECtHR) has started to recognise healthy working conditions as falling within the scope of Article 8 ECHR (Right to respect for private and family life) in case of dangerous work, for example, in relation to asbestos.39

34 27.11.2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA), the European Transport Workers’ Federation (ETF), the European Cockpit Association (ECA), the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA), OJ L 302/57, 1.12.2000. 35 See K Lörcher, ‘Article 3 – The Right to Safe and Healthy Working Conditions’ in N Bruun, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) 181–97. 36 See C Kollonay-Lehoczky, ‘Article 26 – The Right to Dignity at Work’ in Bruun, Lörcher, ­Schömann and Clauwaert (n 35) 438–53. 37 See (until 2008) Council of Europe (ed), Digest of Decisions and Conclusions of the European Committee of Social Rights. For further developments see the database HUDOC-ESC, http://hudoc. esc.coe.int/eng#%20. 38 Decision on the merits of 12.06.2006, No 30/2005 (MFHR v Greece), paras 223 and 224. 39 Violation of Article 8 ECHR and/or of Article 2 (Right to life) ECtHR 24.7.2014 – No 60908/11 (Brincat et al v Malta); see also ECtHR 5.12.2013 – No 52806/09 (Vilnes et al v Norway).

542  Klaus Lörcher According to the ECSR there is a direct relationship to Article 2 ECHR, which recognises the right to life.40 In relation to working conditions respecting dignity the ‘Istanbul Convention’ on preventing and combating violence against women and domestic violence (2011),41 requiring inter alia in its Article 40 effective protection against sexual harassment, will acquire increasing relevance because the EU has signed this instrument that will (following – still disputed – final accession of the EU) thus form an integral part of EU law.42 As for paragraph 2 the Explanations state that it ‘is based’ on Article 2 ESC (The right to just conditions of work),43 which in its paragraph 1 provides for ‘reasonable daily and weekly working hours, the working week to be progressively be reduced …’. Moreover, it concerns several more rights such as public holidays with pay (paragraph 2) and a weekly rest period (paragraph 5). In its revised version it enlarges the minimum annual holiday with pay to four weeks (paragraph 3) and requires the elimination of risks in inherently dangerous or unhealthy occupations (paragraph 4). Moreover, it adds information on essential aspects of the employment contract or relationship (paragraph 6, see above section I.C.i) and compensatory measures in the case of night work (­paragraph 7). iii.  ILO Instruments The ILO has developed a ‘Decent Work Agenda’ ‘for the community of work looking at job creation, rights at work, social protection and social dialogue, with gender equality as a crosscutting objective’.44 This approach looks, on one hand, into the future; on the other hand, it takes into account history since the foundation of the ILO. Indeed, as a consequence of all the terrible experiences in relation to the First World War, the Peace Treaty of Versailles established the ILO in its Part XIII, providing in its Preamble: And whereas conditions of labour exist involving such injustice, hardship, and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by the regulation of the hours of work, including

40 Conclusions XIV-2, Statement of Interpretation on Article 3. 41 11/05/2011, CETS No 210, https://www.coe.int/en/web/istanbul-convention/text-of-the-­convention. 42 EU signs Council of Europe convention to stop violence against women, 13.06.2017, https:// search.coe.int/directorate_of_communications/Pages/result_details.aspx?ObjectId=09000016807 24be9; See inter alia K Nousiainen and C Chinkin, ‘Legal Implications of EU Accession to the Istanbul Convention’, December 2015, http://ec.europa.eu/justice/gender-equality/files/your_rights/ istanbul_convention_report_final.pdf. 43 See K Lörcher, ‘Article 2 ESC – The Right to Just Conditions of Work’ in Bruun, Lörcher, ­Schömann and Clauwaert (n 35) 166–80. 44 ILO (n 1).

Article 31  543 the establishment of a maximum working day and week, … the protection of the worker against sickness, disease and injury arising out of his employment.45

For paragraph 1 it should be further noted that, according to its fundamental ‘Declaration of Philadelphia’ (1944) with its fundamental principle that ‘labour is not a commodity’ the ILO attaches great importance to the protection of life and workers’ health46 and has thus developed a wide-ranging corpus of international standards to secure this objective. The two basic instruments are Convention No 155 on occupational safety and health (1981)47 and Convention No 187 on the promotional framework for occupational safety and health (2006); however, there are many more Conventions and Recommendations dealing with specific issues, professions or branches.48 However, no instrument concerning dignity at the workplace has yet been adopted, although discussions on a possible instrument against violence and harassment at work begin in 2018.49 Concerning working time (paragraph 2) it is considered to be ‘at the heart of the ILO’s standard-setting activities’.50 Indeed, the ILO started its normative activities with Convention No 1, the Hours of Work (Industry) Convention, 1919,51 providing already nearly a century ago for the eight-hour day and 48-hour week as a matter of principle. This normative framework has continued to be developed and enlarged, for example, by Convention No 132, the Holidays with Pay Convention (Revised), 1970, providing in its Article 3(3) for a duration of three weeks, by Conventions No 14, the Weekly Rest (Industry) Convention, 1921, and No 106, the Weekly Rest (Commerce and Offices) Convention, 1957,

45 Part XIII – Labour, Section I – Organisation of Labour, http://net.lib.byu.edu/~rdh7/wwi/versa/ versa12.html (emphases added). 46 Point III (g) ‘adequate protection for the life and health of workers in all occupations’, http:// blue.lim.ilo.org/cariblex/pdfs/ILO_dec_philadelphia.pdf; see for general information BO Alli, Fundamental Principles of Occupational Health and Safety 2nd edn (Geneva, ILO, 2008). 47 See also Protocol of 2002 to the Occupational Safety and Health Convention, 1981. See for an assessment of the respective requirements ILO (ed), ‘Occupational Safety and Health, General Survey concerning the Occupational Safety and Health Convention, 1981’ (No 155), International Labour Conference 98th Session, 2009, Report III (Part 1B), Geneva 2009 (ILO, General Survey, 2009). 48 For an overview of all ILO instruments relating to ‘occupational safety and health’ as well as ‘working time’, see the ILO website, section on ‘International Labour Standards’, http://www.ilo. org/dyn/normlex/en/f?p=NORMLEXPUB:12030:0::NO. For a general assessment, see ILO, ‘General Survey 2009’; for specific branches see, for example, ILO (ed), ‘General Survey on the Occupational Safety and Health Instruments Concerning the Promotional Framework, Construction, Mines and Agriculture’, 106th Session of the International Labour Conference, June 2017, Report III (Part 1B), Geneva 2017 (ILO, General Survey, 2017). 49 Reports submitted to the 107th Session of the International Labour Conference, June 2018, Report V(1), Ending violence and harassment against women and men in the world of work. 50 ‘General Survey Concerning Working-time Instruments’, ILO (ed), 107th Session of the International Labour Conference, June, 2018, Report III (Part B), Geneva 2018 (ILO, General Survey 2018), paras 12 ff. 51 After the ‘General Survey’ in 2005 on Hours of Work the new ILO ‘General Survey 2018’ has been published.

544  Klaus Lörcher or by Convention No 171, the Night Work Convention, 1990. Also, a number of Recommendations have been adopted on this subject.52 iv.  UN Instruments Obviously, the starting point is Article 23(1) of the Universal Declaration of Human Rights (UDHR), which protects the right of ‘everyone’ to ‘just and favourable conditions of work’. In direct legal terms, the main UN instrument providing for social rights is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which has been ratified by all EU Member States. Indeed, for paragraph 1 this instrument in its Article 7(b) refers to safe and healthy working conditions in a general way.53 However, the competent Committee on Economic, Social and Cultural Rights (CESCR) recently adopted an important ‘General Comment No 23 (2016) on the Right to just and favourable conditions of work’ (General Comment No 23) on Article 7 ICESCR.54 Concerning paragraph 2, on the basis of Article 24 UDHR,55 Article 7(d) ICESCR protects workers in relation to working time, stating that States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular … (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

v.  Other Instruments In particular for paragraph 1, the World Health Organization (WHO), which includes all EU Member States, states in the preamble of its Constitution as first recital a basic and often referenced definition of health: ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’56 This definition is also used by the CJEU for the interpretation of the EU legislation on occupational health and safety.57 Moreover, the

52 Besides nine Conventions and one Protocol the ILO ‘General Survey 2018’ also covers six Recommendations, see ibid, para 1. 53 ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: … (b) Safe and healthy working conditions.’ 54 https://www.escr-net.org/resources/general-comment-no-23-2016-right-just-and-favorableconditions-work. 55 ‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.’ 56 Constitution of the World Health Organization, http://apps.who.int/gb/bd/PDF/bd47/EN/ constitution-en.pdf. 57 CJEU 12.11.1996 – C-84/94 (United Kingdom v Council), para 15; 19.9.2013 – C-579/12 RX-II (Strack), para 44; the ECtHR also refers to WHO documents (even if they represent ‘only’ Recommendations), see, for example, ECtHR 24.3.2016 – No 56660/12 (Korneykova and Korneykov v Ukraine), para 131.

Article 31  545 second recital stating that ‘[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’ should also be taken into account. When it comes to occupational health and safety issues, the WHO undertakes several activities, such as the publication of studies, the most recent of which58 includes recommendations such as: f)  managing psychosocial risk factors including violence, bullying and harassment leading to work-related stress; g) provision of a safe work environment, including protection from exposure to second-hand tobacco smoke, and adequate welfare facilities.

Moreover, it cooperates with the ILO,59 focusing more on projects, while mandating the standard-setting activities to the ILO. At the level of the EU Member States, an overview of the legislation60 reveals a clear trend towards protection of the workforce even at constitutional level, especially with regard to healthy working conditions. For example, the Constitutions of 11 Member States contain a provision for health protection (sometimes directly related to the workplace)61 and four more for the protection of the workforce,62 as well as five for the quality or supervision of working ­conditions.63 Only eight Member States have no explicit constitutional provisions on occupational health and safety.64 Thus, the constitutional development of health and safety at the EU level has received relatively strong ‘backing’ from the national Constitutions. Against the background of the reference to the ‘constitutional traditions common to the Member States’ as sources of legal value in Article 6(3) TEU, as well as the case law of the ECtHR on taking account of the consideration of state practice (‘Common practice of contracting parties’),65 this development66 should therefore not be underestimated.

58 WHO (ed), ‘International Minimum Requirements for Health Protection at the Workplace’ (November 2017), http://apps.who.int/iris/bitstream/10665/259674/1/9789241512602-eng.pdf. 59 Fedotov, ILO Programme SafeWork: ‘WHO and ILO Approaches are Convergent, Complementary and Mutually Supportive’, www.who.int/occupational_health/final_4_Jan_cc_report.pdf. 60 Compare on this Bigaut, ‘La Charte des Droits fondamentaux de l’Union européenne’ (Avis et rapport du Conseil Economique et Social), 2002; A Kimmel and C Kimmel, Verfassungen der EU-Mitgliedstaaten 6th edn (Munich, Beck, 2005). 61 Bulgaria, France (Preamble), Hungary, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Romania, Slovak Republic and Spain. 62 Finland, Ireland, Italy, Malta and Slovenia. 63 Belgium, Estonia, Greece and Czech Republic. 64 Austria, Cyprus, Denmark, Germany, Latvia, Malta, Sweden and the United Kingdom. 65 ECtHR (GC) 12.11.2008 – No 34503/97 (Demir and Baykara v Turkey), para 85. 66 For further details as to (non-constitutional) legislation of 27 EU Member States (with Malta as exception) see ILO, ‘General Survey 2009’, pp 113ff.

546  Klaus Lörcher II. CONTENT

A.  General Observations The development of fundamental rights in relation to fair and just working conditions has reached its peak by virtue of the legally binding nature of the CFREU, in which a constitutional character is conferred on quality of working conditions in Article 31. It is also submitted that, given the connection between Article 31 of the Charter and Article 1 on human dignity, Article 31 is a provision ‘with very significant normative weight and importance. Indeed, one may regard Article 31 as the most fundamental of the labour rights in the EU Charter.’67 i. History As regards the discussion in the Convention, the history of this provision68 is not very spectacular: it was not particularly contentious69 either, given the existing and extensive secondary legislation. The right to occupational safety and health and the right to weekly rest and paid annual leave were already included in the first list of fundamental rights, with reference to the relevant provisions of the ESC (see above section I.C.ii) and the Community Charter (see above section  I.C.i), although still connected to the question ‘law or political ­objective?’70 In the first Presidium document containing concrete formulations both elements were considered to be rights.71 Further discussions supplemented the contents. In line with Article 26 of the RESC (Right to Dignity in the Workplace, see above section I.C.ii), the right to working conditions that respect ‘health and safety’ was extended to ‘dignity’.72 The determination of working time was supplemented by the essential ‘limitation of maximum working hours’ and the weekly rest period by the ‘daily’ rest period73 in order not to move too far away from the corresponding sources, especially from Article 2 (R)ESC. Because of its direct context, the specific rules on working time were incorporated in the general provision on the quality of working conditions with the heading ‘Fair and just working conditions’,74 that some authors have considered inappropriate.75 67 Bogg (n 7) para 31.07, quoted also by Opinion AG 8.6.2017 – C-214/16 (King), para 36. 68 See Rudolf (n 7) paras 5 ff. 69 S Barriga, Die Entstehung der Charta der Grundrechte der Europäischen Union (Baden-Baden, Nomos Verlag, 2002) 121. 70 Charte 4112/2/00 Rev 2, Body 4 (27.1.2000), Points 2 and 4 in the Chapter ‘Economic and Social Rights/Objectives’ under the heading ‘Working Conditions’. 71 Convent 18 (27.3.2000), Charte 4192/00 (Arts VI and VII). 72 Convent 40 (23.6.2000), Charte 4373/00 and Convent 41 (3.7.2000), Charte 4383/00. 73 Convent 34 (16.5.2000), Charte 4316/00 (Art 35). 74 See Convent 40 (23.6.2000), Charte 4373/00; whereas the German heading originally read only ‘Gerechte Arbeitsbedingungen’ (fair working conditions), it was later adjusted to the English and French versions (‘Fair and just working conditions’/‘Conditions de travail justes et équitables’). 75 Barriga (n 69) 122.

Article 31  547 ii.  Legal Character as Directly Applicable ‘Right’ with Horizontal Effect All in all, this article may be regarded as a guaranteed basic legal minimum standard, given its already high level of integration achieved by the secondary legislation. This is confirmed by Article 153 (1)(a) TFEU, which expressly refers not only to the working environment but also to its dynamic development (‘improvement in particular of the working environment to protect workers’ health and safety’). Finally, it should also be borne in mind that ‘the worker is the “weaker party in the employment relationship” and that it “is therefore necessary to prevent the employer being in a position to impose on him a restriction on his rights”’.76 The Charter contains – as the preamble indicates – ‘rights, freedoms and principles’. Article 52(5) lays down different effects for the ‘principles’ in relation to the ‘rights’. Even if a differentiated classification may be required for each individual article, for reasons of principle it is generally possible to assume their fundamental rights character as defined in the Charter.77 Therefore, Article 31 contains directly applicable fundamental rights78 also between private persons (horizontal effect).79 A fundamental social right concerning holidays, working hours and working conditions must necessarily have an impact on private law.80 This view is confirmed by the wording (‘right to’ in both paragraphs). In addition, there is no reference to ‘national legislation and practices’, as in various other articles. Moreover, the objective of Article 31 is ultimately to protect every person from any danger and risk associated with working life. The context expresses its high value. Indeed, the hierarchical order represented in the numbering of the Charter’s articles, starting with the safeguarding of human dignity (Article 1),81 continuing with the right to life (Article 2) and coming to the right to the (physical and mental) integrity of the person (Article 3),82 including also Article 5 (prohibition of slavery and forced labour), establishes a 76 Opinion AG 8.6.2017 – C-214/16 (King), para 49 ff, referring inter alia to the judgment 25.11.2010 – C‑429/09, EU:C:2010:717 (Fuβ), para 80 and the case law cited. 77 See, for example, Opinion AG 8.6.2017 – C-214/16 (King), para 52 and the Explanations to Article 52(5), which do not refer to Art 31. 78 See also Robin-Olivier (n 7) Art 31, para 18. This has now been recognised expressly for ­Article 31 (2) by two recent judgments: CJEU (GC) 6 November, C-569/16 ea, Bauer ea, para 92: ‘That obligation on the national court is dictated by … Article 31(2) of the Charter where … the dispute is between the legal heir and an employer who is a private individual’ and to the same effect CJEU (GC) 6 November 2018, C‑684/16, Max-Planck-Gesellschaft, para 81. 79 Possibly in this sense see Robin-Olivier, ibid Art 31, para 32 f. 80 A Seifert, ‘Die horizontale Wirkung von Grundrechten – Europarechtliche und ­rechtsvergleichende Überlegungen’ [The horizontal effects of fundamental rights – Considerations with regard to European law and comparative law], in (2011) Europäische Zeitschrift für Wirtschaftsrecht (EuZW) 700, cautiously considers it to go in the direction of a ‘horizontal effect’; similarly Opinion, 8.9.2011 – C-282/10 (Dominguez), para 78, in relation to Article 31(2) being ‘conceived in this respect as an individual requirement’ (but still denying a horizontal effect, see paras 80–83). 81 See for the specific importance of Art 1 in relation to Art 31 Bogg (n 7) para 31.07. 82 This reference to Art 3 is highlighted also by Bogg (n 7) para 31.07 (‘vital common foundation’) and complemented by the reference to Art 1, the further pillar on which Art 31 is constructed, para 31.08).

548  Klaus Lörcher very challenging framework.83 This is further underlined by the quality requirements expressed by Articles 168(1) TFEU and Article 35 (see above section I.B.) Moreover, the right to working conditions respecting health, safety and dignity for every worker, as required by Article 31, is enshrined in Title IV ‘­Solidarity’ CFREU. This also establishes the connection with the values of the Union (­Article 2 TEU), which expressly recognises not only dignity, but also solidarity as a fundamental value. The legal character as fundamental right means that exceptions and limitations in secondary law can be assessed as being in contradiction to this right and therefore as invalid. This is a major area of application for exceptions in (labour) directives, be it in a directive itself,84 be it in the transposition of a directive into national law, if (new) exceptions are to be regulated.85 Furthermore, according to the Court’s settled case-law, it is for the national courts and administrative bodies to apply European Union law in its entirety and to protect rights which the latter confers on individuals, disapplying, if necessary, any contrary provision of domestic law.86

Finally, secondary legislation is interpreted in accordance with the fundamental right.87 The CJEU has made it clear that restrictions that are inconsistent with EU law cannot be applied by the courts.88 Moreover, according to ECtHR case law, there are positive obligations89 according to which the state is responsible for the actions of private persons insofar as it has to ensure adequate legislation and case law in conformity with the Convention.90 However, in the case of Article 27 CFREU (right to information and consultation of employees in companies), the CJEU has rejected the character of a 83 See for a prohibition of inhuman working conditions A Bücker, ‘§19’ in Monika Schlachter, Hans Michael Heinig (eds), Enzyklopädie Europarecht – Europäisches Arbeits- und Sozialrecht (Baden-Baden, Nomos Verlag, 2016) paras 71, 82. 84 For example: exclusion of domestic servants in Art 3(a) Directive 89/391/EEC; not related to Art 31: Opinion 30.9.2010 – C-236/09 (Association Belge des Consommateurs Test-Achats ASBL v Conseil de ministres) paras 26 ff in relation to the exemption of Art 5(2) Directive 2004/113/EC, OJ L 373, 37. 85 For example, Art 7 Directive 93/104/EC (Working Time Directive): (no) right to paid leave for workers in a fixed-term contract up to 13 weeks (see Opinion 8.2.2001 – C-173/99, ECR 2001, I-04881 (BECTU)). 86 14.10.2010 – C-243/09, para 63 (Fuß) referring to judgments 22.6.1989 – 103/88, ECR 1989, 1839 para 33 (Costanzo) and 11.1.2007 – C-208/05, ECR 2007, I-181 (ITC) (paras 68 and 69 with references to the case law cited). 87 See, for example, J Heuschmid, M Klauk, ‚Zur Primärrechtswidrigkeit der Leiharbeits-­ Richtlinie‘ (2012) Soziales Recht (SR) 84 ff. 88 CJEU 14.10.2010 – C-243/09 (Fuß), para 63; 19.1.2010 – C-555/07 (Kücükdeveci), paras 52 ff. 89 Referring to Art 52(3) M Borowsky, ‘Art 51’ in J Meyer (ed), Charta der Grundrechte der Europäischen Union [Charter of Fundamental Rights of the European Union], 4th edn (BadenBaden, Nomos Verlag, 2014) para 31, see such a minimum protection at least in case of the rights provided for in the ECHR. 90 ECtHR 28.6.2001 – 24699/94 (VGT Verein v Tierfabriken); see also the ECtHR’s case law in relation to Articles 2 and 8 ECHR above s I.C.ii.

Article 31  549 directly applicable social fundamental right.91 Nevertheless, it is submitted that this case is not comparable to Article 31 because the main reason for this judgment was the explicit reference in Article 27 to further legislation (‘in cases and under the conditions provided for by Union law and national laws and practices’). Yet, such a reference is not included in Article 31. iii.  Personal Scope Both paragraphs of Article 31 refer to ‘[e]very worker’ as holders of the rights enshrined therein. This represents a broad concept.92 The CJEU has even included ‘volunteer firefighters’ in the scope of the Working Time Directive 2003/88/EC.93 B.  Field of Application According to the CJEU’s case law, ‘situations cannot exist which are covered … by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter.’94 Accordingly, it has to be examined to what extent EU law exists. Article 153 (1) (a) TFEU provides the Union with the very broad legislative power to adopt directives as minimum requirements (Article 153 (2)(b) TFEU) for the ‘improvement in particular of the working environment to protect workers’ health and safety’ (Article 153 (1)(a) TFEU). In principle, competence would also be available with regard to ‘working conditions’ in general (Article 153 (1)(b) TFEU).95 However, the latter general competence is of less importance in relation to the former (more specific) competence. Other (especially internal market) competences have also been used for legislative action in the area of occupational health and safety. The EU has used these competences to create secondary EU law to a very large extent (see above section I.C.i). Concerning paragraph 1 it appears clear that nearly all aspects are governed by EU secondary legislation. Of course, this result does not mean that further (more specific) Directives are excluded; they might even be required. In any event, in terms of field of application of EU law, the situation might be more complicated as regards paragraph 2. According to 91 CJEU 15.1.2014 – C-176/12 (AMS), paras 46–48. In its recent judgment Bauer ea (see n 78, para 84) the CJEU separated itself from the former judment exactly because Article 27 was held to be not directly applicable. 92 For details see ch 5 on the ‘Concept of the Employment Relation’ in this publication. 93 CJEU 21.2.2018 – C-518/15 (Matzak), paras 28 ff. 94 CJEU (GC), 26.2.2013 – C‑617/10 (Åkerberg Fransson), para 21; see for more details ch 6 on Limitations in this publication. 95 See K Lörcher, ‘Social Competences’ in N Bruun, K Lörcher and I Schömann (eds), The Lisbon Treaty and Social Europe (Oxford, Hart Publishing, 2012) 165 ff.

550  Klaus Lörcher its title, the Working Time Directive 2003/88/EC only regulates ‘certain aspects’ of working time,96 one example being that it does not provide for a direct limitation of daily (only for weekly) working hours, whereas it is submitted here (see below section II.C.iii.a) that Article 31(2) also contains such a right. However, on the basis of the at least indirect regulation on a minimum of 11 hours for daily rest, providing for an (albeit very insufficient) ‘limitation’ of daily 13 working hours, it is submitted that daily working hours are within the field of application of EU law and therefore Article 31(2) applies. C.  Specific Rights Although very general in its wording Article 31 contains a set of specific rights that are found by applying interpretative principles,97 in particular by referring to the sources described in the Explanations. Moreover, it should be recalled that these rights are imbedded in the context of (permanent) improvement of working conditions expressed in Article 151(1) TFEU (upwards convergence) and in particular in Point 7 Community Charter, thus providing for a dynamic dimension in interpreting and applying Article 31 and prohibiting regression. i.  Right to Working Conditions That Respect His or Her Health and Safety (Paragraph 1, 1st and 2nd Alternatives) The first problem is the interpretation of the term ‘working conditions’. It is not limited and is broad in scope, including every type of employment law. However, the Explanations appear to reduce the scope by referring to the definition in Article 156 TFEU, listing in its second indent ‘working conditions’ after the term ‘labour law’. Nevertheless, a limitation of the term ‘working conditions’ is not convincing. First, the same Explanations refer to the EC Framework Directive  89/391/EEC, the legal basis of which is Article 118a TEC (later ex-Article 137 EC, now Article 153(1)(a) TFEU). This legal basis represents a broad understanding, all the more because Article 153(1)(b) TFEU, additionally, contains an unlimited basis for ‘working conditions’.98 Likewise, the definition in Article 3 ESC, also referred to in these Explanations, is not limited. Moreover, ILO Convention No 81 on Labour Inspection (ratified by all EU Member States) confirms this wide understanding by requiring in Article 1(a) labour inspection to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating



96 See

above, n 33. ch 7 on Interpretation in this publication. 98 For the wide scope of working conditions see also Robin-Olivier (n 7) para 10. 97 See

Article 31  551 to hours, wages, safety, health and welfare, the employment of children and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors.

Finally, according to Article 6(1)(3) TEU the Explanations are not mandatory but must only be given ‘due regard’ in interpreting the Charter. Therefore, ­Article 31 itself remains decisive. Here, it is clear from its wording that ‘working conditions’ cannot exclude labour law regulations. Moreover, paragraph 2 sets out limits for various regulations governing working time, which (at least) also apply to employment contracts. Any restrictive understanding would therefore be incompatible with the wording, the objective and the context of this ­provision. More specifically, the content of working conditions respecting workers’ health (and safety)99 can, according to the CJEU case law,100 be defined by referring to the WHO’s broad definition (section I.C.v). As early as 1950, the ILO–WHO Joint Committee on Occupational Health considered that occupational health should ‘aim at the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations’.101 ‘Social well-being’ (which goes beyond the concept of mere ‘job satisfaction’) will play an increasingly important role when it comes to the so-called ‘soft’ factors that are not traditionally attributed to health and safety, such as fear of job loss, especially in the case of precarious employment.102 The now classic definition of precarious work is provided by Rodgers: What makes work precarious? There is a tendency to regard regular, permanent wage work as secure, and to consider other forms of work as precarious insofar as they deviate from this norm. But there are several dimensions to precariousness … The concept of precariousness involves instability, lack of protection, insecurity and social or economic vulnerability … Not that this eliminates ambiguity; an unstable job is not necessarily precarious. It is some combination of these factors which identifies precarious jobs, and the boundaries around the concept are inevitably to some extent arbitrary.103

99 Working conditions with regard to ‘safety’ probably have a low independent status, because in English and French terminology the two elements are more or less used for the main issue, the health of workers (Health and safety/Santé et sécurité). In this respect, safety has (only) an instrumental function. 100 See n 57. 101 ILO, General Survey 2009, para 4 (emphasis added). 102 See, for example, R Helm, Arbeitsschutz als absolute Schranke für Befristungen – Gesundheitsrisiken aufgrund (vermeidbarer) Beschäftigungsunsicherheit erkennen – Gesunde ­ Arbeitsbedingungen ohne Befristung durch Mitbestimmung erreichen [Safety at work as absolute bound on fixed-term conditions – recognising health risks due to (avoidable) precarious employment  – achieving healthy working conditions without time limits via codetermination] (Baden-Baden, Nomos, 2012). 103 G Rodgers, ‘Precarious Work in Western Europe: The State of the Debate’ in G Rodgers and J Rodgers (eds), Precarious Jobs in Labour Market Regulation: The Growth of Atypical Employment in Western Europe (Brussels, International Institute for Labour Studies, 1989) 3.

552  Klaus Lörcher As argued by Bogg, the economic power that the employer may have ‘to allocate work and to enter into contractual arrangements … is a source of private domination that can have corrosive effects on the wellbeing and self-respect of precarious workers’.104 This is increasingly supported by empirical evidence, which shows that employment conditions heavily influence health ­inequalities.105 Whereas paragraph 2 provides for limitations of working time, it is an area of minimum and predictable working time that is addressed by health and safety, such as zero-hours contracts. a.  General Rights (Article 6(1) and (2) Directive 89/391/EEC) The fundamental framework for workers’ rights is set out by Article 6(1): General obligations on employers 1.  Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means. The employer shall be alert to the need to adjust these measures to take account of changing circumstances and aim to improve existing situations.

One aspect of Article 6(1) of this Directive needs to be highlighted: prevention. Its importance is stressed by the CESCR, noting that prevention is a ‘fundamental aspect’ of the right to healthy and safe working conditions guaranteed by Article 7(b) ICESCR (section I.C.iv) and requires effective preventive measures and financial support (‘to ensure that appropriate financial means to prevent workplace accidents’) and targeted information (‘Awareness of the importance of preventive measures’).106 Moreover, the principle of ‘combating the risks at source’ (Article 6(2)(c) of this Directive) is of central importance because it requires looking at the sources of risks, for example, of stress at the workplace. b.  Right to a Risk Assessment and Appropriate Measures (Articles 6(3) and 9(1)(a) and (b) Directive 89/391/EEC) First and foremost, Article 6(3) of this Directive provides that the employer has to ‘evaluate the risks to the safety and health of workers’. It further requires that 104 A Bogg, ‘Republican Non-Domination and Labour Law: New Normativity or Trojan Horse?’ (2017) 33(3) International Journal of Comparative Labour Law and Industrial Relations 391, 398. 105 A Koukiadaki and I Katsaroumpas, ‘Temporary Contracts, Precarious Employment, Employees’ Fundamental Rights and EU Employment Law’, Policy Department for Citizens’ Rights and Constitutional Affairs (Brussels, European Parliament, 2017) 47, with further references. See also V Doellgast, N Lillie and V Pulignano (eds), Reconstructing Solidarity – Labour Unions, Precarious Work, and the Politics of Institutional Change in Europe (Oxford, Oxford University Press, 2018). 106 CESCR, General Comment No 23 (see note 54), para 25.

Article 31  553 ‘[s]ubsequent to this evaluation and as necessary, the preventive measures and the working and production methods implemented by the employer must … assure an improvement in the level of protection afforded to workers with regard to safety and health’. This is supplemented by the obligation of employers to ‘be in possession of an assessment of the risks to safety and health at work, including those facing groups of workers exposed to particular risks’ (Article 9 (1)(a)) and by the obligation to ‘decide on the protective measures to be taken and, if necessary, the protective equipment to be used’ (Article 9 (1)(b) of this Directive). c.  Right to Refuse to Perform Work (Article 6(4) Directive 89/391/EEC) According to Article 6(4) of this Directive, workers may ‘in the event of serious, imminent and unavoidable danger, leave their workstation and/or a dangerous area’. In such a case, they may ‘not be placed at any disadvantage because of their action and must be protected against any harmful and unjustified consequences, in accordance with national laws and/ or practices.’ d.  Right to Occupational Health Care (Article 14 Directive 89/391/EEC) Although the EU Commission issued a Recommendation on occupational medical services in 1962,107 it was not until 1985 that ILO Convention No 161 provided for relevant international legislation. In the meantime, the CESCR also considers that the working conditions protected by Article 7 ICESR require at least a basic medical staff. At EU level, Article 14 Directive 89/391/EEC provides for an important specification.108 ii.  Right to Working Conditions Which Respect His or Her Dignity (Paragraph 1, 3rd Alternative) Working conditions with regard to dignity were added as a qualitatively new element. The impact of dignity can be far-reaching. Based on the direct link with human dignity as guaranteed by Article 1 it is directly implemented in the employment relationship. This is already demonstrated by the requirement to take account of ‘adapting the work to the individual’,109 in particular in the design of workplaces and in the selection of work equipment and work and production processes (Article 6(2)(d) Directive 89/391/EEC). The central feature, however, is the protection of dignity at work from sexual harassment. This development began with the Council Resolution of 29 May 1990 107 OJ 31.8.1962, p. 2181. 108 This provision led to the (new and additional) protection in Art 3(4) RESC. 109 The formulation is more generally oriented to human beings in the French and German versions (‘adapter le travail à l’homme’/‘Berücksichtigung des Faktors “Mensch” bei der Arbeit’).

554  Klaus Lörcher on protecting the dignity of women and men at work, followed by the respective Commission Recommendation of 1991 (section I.C.i). It continued in 1996 with the inclusion in the RESC of a separate Article 26 on the ‘Right to Dignity at Work’ (section  I.C.ii) expressly mentioned in the Explanations) which, in its ­paragraph 1, also protects against sexual harassment and – qualitatively new due to developments especially in Scandinavian countries – against harassment (of any kind) in its paragraph 2. In EU law, as of 2000, this development has been explicitly reflected in the new anti-discrimination directives, which define harassment as discrimination. A bridging between the two areas – namely health and safety, on one hand, and anti-discrimination on the other hand – has been achieved through the ‘framework agreement on harassment and violence at work’ (2007) concluded between the social partners at EU level (section I.C.i). The provisional conclusion and simultaneous qualitative new beginning has now led to the conferring of the character of a fundamental right.110 a.  Right to Working Conditions Respecting Dignity To the extent that the right to working conditions respecting dignity is related to (sexual) harassment the relevant guarantees will be treated in the respective articles on non-discrimination (Article 21(1) ‘on any ground’) and equality between men and women (Article 23). The reference in the Explanations to Article 26 RESC would seem to extend to any form of bullying in the working ­environment.111 This is supplemented by the ‘health’ approach, in so far as Article 6(2)(g) Directive 89/391/EEC provides for prevention also in relation to ‘social relationships’. Accordingly, all specific rights described under section II.C.ii apply here, too. But ‘dignity’ at the workplace cannot be limited to (the fight against) harassment. It has much wider scope. In particular, no work can be allocated to a worker which would violate his or her dignity.112 b.  Right to Decent Remuneration? Although it is obvious that ‘remuneration’ was not intended to be part of the Charter rights,113 an increasing number of authors interpret Article 31(1) as including the right to decent remuneration.114 Taking into account the 110 See for the developments within the Council of Europe, s I.C.ii. 111 Bogg (n 7) para 31.10. 112 For further details see ch 9 on Art 1 in this publication. 113 Indeed, this right was included in the first list (see n 70, Point 3 in the chapter ‘Economic and Social Rights/Objectives’ under the heading of ‘Working Conditions’), but in further discussions it was not retained. 114 See, for example, R Zimmer, ‘Das Recht auf ein existenzsicherndes Einkommen als Bestandteil des Unionsrechts?’ [The Right to a Minimum Remuneration as Part of EU law?] (2018) 4

Article 31  555 ­interpretative principles115 the main argument is that dignity at the workplace cannot be respected without decent remuneration. Only such a guarantee would allow, in the words of the ICESCR, a ‘[r]emuneration which provides all workers, as a minimum, with … [a] decent living for themselves and their families in accordance with the provisions of the present Covenant’ (Article 7(a)(ii)). According to Article 53 and since all EU Member States have ratified this Covenant, it is therefore submitted that the right to decent remuneration is included in Article 31(1). Additionally, the European Pillar of Social Rights in its Principle 6(a) (‘Workers have the right to fair wages that provide for a decent standard of living’) confirms the EU-wide consensus on the rights character already expressed by Point 5 of the Community Charter nearly three decades ago. However, the EU is prevented from adopting secondary legislation concerning ‘pay’ in accordance with Article 153(5) TFEU. Its deletion was suggested by a number of participants in the Second Convention on the Future of Europe, including the then ETUC General Secretary as Observer.116 iii.  Right to Decent Working Time (Paragraph 2) Although there is no specific heading for the content of the working time regulation in Article 31(2) it is suggested that the elements provided for therein be regarded as emerging from a fundamental right: the right to decent working time.117 Indeed, this right is an integral part of the right to working conditions with regard to respect health, safety and dignity of workers (Article 31(1)). Accordingly, all the principles developed under paragraph 1 can be transferred to them. The main elements can be found in the Working Time Directive 2003/88/EC (which replaced the original Directive 93/104/EEC mentioned in the Explanations). However, a specific problem arises in relation to the ‘Derogations and

Zeitschrift für Europäisches Arbeits- und Sozialrecht (ZESAR) 151 ff; Koukiadaki and Katsaroumpas (n 105) 29 f; Bogg (n 7) para 31.48 (referring in particular to Art 23(1) and (3) UDHR); G Nassibi, Schutz vor Lohndumping in Deutschland [Protection against Wage Dumping in Germany] (BadenBaden, Nomos Verlag, 2012) 251 ff; Robin-Olivier (n 7) para 4; similarly, T Blanke, ‘Article 31’ in B ­Bercusson, European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos Verlag, 2006) 365, referring to Art 4(1) ESC; A Jeammaud, ‘Art. II-91’ in L BurgorgueLarsen, A Levade and F Picod (eds), Traité établissant une Constitution pour l’Europe, Partie II, vol 2 (Brussels, Bruylant, 2005) 423. However, it should be recalled that it had denied jurisdiction in austerity measure cases in which the referring Courts had asked questions about Art 31(1), see, for example, Order 26.6.2014 – C‑264/12 (Sindicato Nacional dos Profissionais de Seguros e Afins v Via Directa – Companhia de Seguros SA), para 19: ‘clearly had no jurisdiction’ as there was no ‘specific evidence to support the view that that law was intended to implement EU law’. 115 See ch 7 on Interpretation in this publication. 116 Conv 821/03 – Annex V concerning Article III-99 of the (Draft) Constitutional Treaty. 117 See generally D McCann, ‘Decent Working Hours as a Human Right: Intersections in the Regulation of Working Time’ in C Fenwick and T Novitz (eds), Legal Protection of Workers’ Human Rights: Regulatory Changes and Challenges (Oxford, Hart Publishing, 2010) 509ff.

556  Klaus Lörcher Exceptions’ (Articles 17–22). As they are limitations to the fundamental right to decent working time they will have to be justified under Article 51(1).118 In any event, according to recital 6 of the Preamble of this Directive ‘[a]ccount should be taken of the principles of the International Labour Organisation with regard to the organisation of working, including those relating to night work’. The most relevant Conventions have been mentioned above (section  I.C.iii). As to the possibilities lying in this recital the CJEU has shown interest in using one ILO Convention (Holidays with Pay Convention (Revised), 1970 (No 132)) in its KHS and Dicu judgments.119 This raises the more general question of why the Court does not refer to the other Conventions, such as ILO Convention No 1 on the eight-hours a day principle (see below). A more general question is whether Article 31(2) provides also for a reduction of working hours (despite the limits on maximum working hours, see below). More specifically, more commonly accepted are cuts in working hours in the case of unhealthy, arduous working conditions. Notwithstanding the general obligation to prevent them, common ground has been established that existing risks can be ‘compensated’ by the reduction of working time.120 More generally, Article 2(1) ESC requires ‘the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit’. In the same vein, the ILO Reduction of Hours of Work Recommendation No 116 (1962) supports this view.121 a.  Right to Limitation of Maximum Working Hours (Inter Alia Article 6 Directive 2003/88/EC) It contains two main aspects. The obvious one is the limitation of weekly working hours to 48 as provided for in Article 6 Directive 2003/88/EC. But it should be noted that as early as 1975 the Council adopted a Recommendation on the 40-hour maximum working week and four weeks’ paid holiday,122 which was not only up to date but also provided for much better protection. In addition, it is submitted that Article 31(2) also includes daily working hours. First, the wording is general and does not state any restriction to weekly working hours. Even if, in Directive 2003/88/EC, there is (only) a general

118 See below s II.D as well as the contribution in this publication. 119 CJEU (GC) 22.11.2011 – C 214/10, (KHS), paras 41 ff in the specific case the CJEU used the reference to the ILO Convention to limit the carry-over period to 18 months; however, this use of ILO Conventions is contrary to the very idea of International Labour Standards, namely that they should not be used to reduce any rights (see Art 19(8) of the ILO Constitution); see also CJEU (GC) CJEU 4 September 2018, C‑12 /17, Dicu, para 32; 6 November, C-569/16 ea, Bauer ea, para 81. 120 See Art 2(4) ESC (in particular in the 1996 revised version), CESCR, General Comment No 23, para 37. 121 For more details, see ILO, General Survey, 2018, paras 28, 84 ff; see also S De Spiegelaere and A Piasna, ‘The Why and How of Working Time Reduction’ Brussels ETUI 2018. 122 Directive 75/457/EEC, OJ L 199/32, 30.7.1975.

Article 31  557 (weekly) limit the objective of healthy working conditions requires also a daily limitation. This is also supported directly by Article 2(1) ESC123 requiring the provision ‘for reasonable daily and weekly working hours’ (emphasis added), as well as by the CESCR, which also supports this with the general wording in Article 7 (d) ICESCR (‘reasonable limitation of working hours’). Moreover, it is confirmed by the context in paragraph 2: after defining the (maximum) working time, the rest periods are mentioned, but now explicitly differentiated into ‘daily and weekly’. Additionally, the amount of maximum daily working hours can be based on international working time standards (section I.C). In this respect, it appears crucial to note that already the Treaty of Versailles in establishing the ILO (Part XIII) not only put working time at the forefront of social principles (section  I.C.iii) but highlighted its importance, putting this item (‘Application of principle of the 8-hours day or of the 48-hours week’) as top of the agenda of the first International Labour Conference.124 Accordingly, this was followed by the first ever ILO Convention, providing that ‘working hours of persons employed in any public or private industrial undertaking or in any branch thereof … shall not exceed eight in the day and forty-eight in the week’ (­Article  2 of ILO Convention No 1, providing for some exceptions).125 This is even more important because Directive 2003/88/EC explicitly refers to the respective ILO standards in its preamble (recital 6). It is therefore submitted that Article 31 not only contains the right to a limitation of daily working hours, but also the principle of a maximum eight-hour (working) day. The fact that the wording provides for ‘the right to limitation of working hours’ allows also for the inclusion of additional (forms of) limitation (for example, monthly/yearly). Conversely, working time is under pressure from flexibilisation. It is in this context that reference periods for the calculation of an average limit are becoming increasingly important. Concerning weekly working hours, Article 16(1)(b) Directive 2003/88/EC allows a reference period of four months for the application of Article 6 (maximum weekly working time).126 But for daily working hours it is also indispensable to limit such reference periods.127

123 Referred to in the Explanations (see Art 6(1)(3) TEU and Art 52(7)). 124 http://www.ilo.org/public/libdoc/ilo/1920/20B09_18_engl.pdf. 125 The Hours of Work (Industry) Convention, 1919 (No 1) was subsequently expanded by the Hours of Work (Commerce and Offices) Convention, 1930 (No 30) to further branches of the ­economy; the Forty-Hour Week Convention, 1935 (No 47) reduced the 48-hour weekly working time. The Weekly Rest (Industry) Convention, 1921 (No 14) provided that workers in industry should enjoy ‘in every period of seven days a period of rest comprising at least twenty-four consecutive hours’ (Art 2(1) of this Convention). 126 See for further derogations in particular Art 17(3), but see also the maximum limit of one year in Art 19 Directive 2003/88/EC (to the need of such limits see also ILO, General Survey, 2018, para 68). 127 ILO, General Survey, 2018, para 70.

558  Klaus Lörcher b.  Right to Daily and Weekly Rest Periods (Articles 3 and 5 Directive 2003/88/EC) The absolute limits of a maximum working time are the daily and weekly rest periods. Although the term ‘rest periods’ appears to be incorrect because it not only includes proper ‘rest’, but also only indirectly related activities such as driving to the workplace and back, as well as all other non-work-related activities, for example, in the household, education, nursing, (further) education and leisure time. On the other hand, it ensures that the employer no longer has power over the worker. As to the specific limits, Article 3 Directive 2003/88/EC provides for a ‘minimum daily rest period of 11 consecutive hours per 24-hour period’. For the weekly rest period Article 5(1) Directive 2003/88/EC defines that ‘per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours’ daily rest referred to in Article 3.’ Recently, the CJEU has interpreted this provision ‘as not requiring the minimum uninterrupted weekly rest period of 24 hours to which a worker is entitled to be provided no later than the day following a period of six consecutive working days’. Referring to the AG’s Opinion it stated that ‘Article 31(2) of the Charter is not capable of providing additional information of use for the interpretation of Article 5 of Directive 2003/88’128 by referring inter alia to Article 2(5) ESC mentioned in the Explanations, which would refer to Directives 93/104/EC and 2003/88/EC, thus not providing and therefore not useful for the interpretation of an Article of the latter. This argumentation is more than questionable. First, the Charter’s objective is not to provide ‘additional information’ but to respect and promote fundamental (social) rights (Article 51(1). Second, as the ESC was adopted in 1961 Article 2(5) cannot be based on the two Directives adopted in 1993 and 2003.129 Finally, the wording of the provision shows that its very idea is to have a free day after having worked six days (‘weekly rest period which shall, as far as possible, coincide with the day recognised by tradition or customs in the country or region concerned as a day of rest’); this has been reinforced by the respective case law of the ECSR, which had found a violation of this provision because the ‘on-call periods, wrongly regarded as rest periods, can occur on Sundays’.130 As a general criticism the threshold of 11 hours for daily rest is very low and thus appears insufficient. But its relevance would decrease to the extent that the principle of eight-hours a day working time (section II.C.iii.a) was accepted. 128 CJEU 9.11.2017 – C‑306/16, (Maio Marques da Rosa) para 50, emphasis added; the AG’s ­Opinion (see paras 43 and 44) having been delivered on 21 June 2017. 129 As far as para 50 – rightly – also refers to the ESC as ‘revised in Strasbourg on 3 May 1996’ this is also not correct because the wording has not been changed, which is confirmed by the respective Explanatory Report stating that ‘[o]nly the differences with the Charter will therefore be mentioned, as well as the new provisions set out’ (para 18) and there is no reference to Art 2(5). 130 ECSR, Decision on the merits, 23.6.2010 – No. 55/2009 (Confédération Générale du Travail (CGT) v France) para 67.

Article 31  559 c.  Right to Annual Period of Paid Leave (Article 7 Directive 2003/88/EC) The right to paid annual leave is an integral part of the European social model, differentiating it from other systems, such as those of the United States or Japan, and constitutes a fundamental right with horizontal effect (section II.A.ii). Its recognition started with a one-week entitlement (ILO Convention No 52) and was extended more than 30 years later to a two-week paid leave (ILO Convention No 132). At European level, Article 2(3) ESC (1961) originally provided the same, but was doubled to four weeks in its revised version of Article 2(3) RESC (1996). Article 7 of Directive 2003/88/EC stipulates the same duration as a minimum requirement (even if the reality far exceeds that). This duration can therefore be considered a minimum provided for by Article 31(2). The CJEU’s case law on Article 31(2) is most pronounced in the relation to the social rights provided for in the Charter. However, in its broad outlines, it had already been developed prior to the Charter’s acquiring binding force, with the recognition of the right to paid annual leave as a ‘particularly important principle of EU social law’.131 Looking at the jurisprudence following the Lisbon Treaty, with the legally binding character of the Charter (Article 6(1)(1) TEU), Article 31(2) has had little effect. The references start with the KHS judgment: ‘The right to paid annual leave, as laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union and in Article 7 of Directive 2003/88’132 followed by the most common formulation for a reference adding the word ‘“expressly” laid down in Article 31(2) of the Charter’133 mentioning it even more briefly and putting it at the same level as the respective Directive provision: the ‘term “paid annual leave” in Article 31 of the Charter and Article 7(1) of Directive 2003/88 means’134 or ‘interpretation of the term “worker” within the meaning of ­ Article 7 of Directive 2003/88 and of Article 31(2) of the Charter’.135 However, in all these cases the reference to Article 31(2) appears to have had no impact, at best an additional supporting reference but never as a basis for a separate assessment (or even less, a detailed analysis) as a fundamental right. To some extent, a more positive approach might perhaps be found in the Strack case: the CJEU devoted two paragraphs to Article 31(2) by attributing an ‘affirmative’ role to it and also by referring to the Explanations.136 131 As most recent authority CJEU 29.11.2017 – C 214/16, (King), para 32 with reference to CJEU 30.6.2016 – C-178/15 (Sobczyszyn), para 19 and the case law cited. The first judgment recognising it was 26.6.2001 – C-173/99 (BECTU), para 43. 132 CJEU 22.11.2011 – C‑214/10, (KHS), para 31. 133 CJEU 3.5.2012 – C‑337/10, (Neidel), para 40, referred to subsequently in judgments: CJEU, 8.11.2012 – C‑229/11 and C‑230/11, (Heimann and Toltschin), para 22, 30 June 2016 – C‑178/15, (Sobczyszyn), para 17; in the same way but without reference to Neidel: CJEU 22.5.2015 – C 539/12, (Lock), para 14, 29.11.2017 – C‑214/16, (King), para 33. 134 CJEU 12.2.2015 – C‑396/13, (Sähköalojen ammattiliitto), para 66 (para 64 quoting the wording of Art 31(2). 135 CJEU 6.3.2015 – C‑316/13, (Fenoll), para 23. 136 CJEU 19.9.2013 – C‑579/12 RX-II, (Strack), paras 26 and 27. It is indeed a further hopeful sign that the CJEU (CG) in its judgment Bauer ea (6 November, C-569/16 ea, Bauer ea, para 56 ff) bases

560  Klaus Lörcher In any event, the content of this right has mainly been developed by a jurisprudence independent of Article 31(2). The King judgment might serve as the best example: after the short reference to Article 31(2) (see paragraph above) the following summary of its case law refers mainly to previous judgments: 37  The very purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure137 … 39  … any practice or omission of an employer that may potentially deter a worker from taking his annual leave is equally incompatible with the purpose of the right to paid annual leave.138

d.  Right to Paid Sick Leave? The right to paid sick leave might normally be attributed to the right to social security (Article 34(1)).139 Moreover, it is mentioned neither in Directive 89/391/ EEC nor in Directive 2003/88/EC. Nevertheless, this right is also directly related to health at the work place. In the words of the CESCR: ‘Paid sick leave is critical for sick workers to receive treatment for acute and chronic illnesses and to reduce infection of co-workers’.140 At least in those events a right to paid sick leave should be recognised if social security protection proves insufficient. e.  Right to Compensatory Measures in the Event of Night Work (Articles 8–12 Directive 2003/88/EC) Night work is not expressly mentioned in Article 31(2). But it is regulated in more detail in Articles 8–13 Directive 2003/88/EC to which the Explanations refer.141 In any event, the general principle in Article 31(1) of securing health at the workplace requires specific protection in the case of night work that is dangerous for the health conditions of workers. Articles 8–13 Directive 2003/88/EC can be considered as providing necessary minimum protection for additional restrictions on the duration of night work (Article 8), but also for other rights, such as health assessment and transfer of night workers to day work (Article 9) or specific rules on safety and health protection (Article 12). In addition, ILO Convention No 171 can serve as a guide. itself on the Strack judgment in order to further develop the recognition of the right to paid leave in the case of the death of worker concerned. 137 Referring inter alia to CJEU 20.1.2009, C‑350/06 and C‑520/06, EU:C:2009:18 (Schultz-Hoff and Others), para 25, and 30.6.2016 – C‑178/15, EU:C:2016:502 (Sobczyszyn), para 25. For further references in relation to the specific problem of breastfeeding during night work, see CJEU 19 September 2018, C‑41 /17, (González Castro). 138 CJEU 29.11.2017 – C‑214/16 (King), paras 37 and 39 (with a reference to CJEU 22.5.2014 – C‑539/12, EU:C:2014:351 (Lock), para 23 and the further case law cited there). 139 European Commission, Sick pay and sickness benefit schemes in the European Union – Background report for the Social Protection Committee’s In-Depth Review on sickness benefits, 17.10.2016. 140 General Comment No 23, para 30. 141 See also Art 2(7) RESC.

Article 31  561 iv.  Rights of a Transversal Nature (Paragraphs 1 and 2) As Article 31(1) contains the general principle it appears obvious that the rights enshrined therein also apply to its paragraph 2. This is confirmed by Article 1(4) Directive 2003/88/EC, according to which ‘[t]he provisions of Directive 89/391/ EEC are fully applicable … without prejudice to more stringent and/or specific provisions contained in this Directive’. Therefore, the transversal provisions in Directive 89/391/EEC (such as Articles 10–12) apply also in relation to working time. a.  Right to Information (Article 10 Directive 89/391/EEC) The participatory dimension of occupational health starts with the fundamental right to information. Article 10(1) Directive 89/391/EEC provides that: The employer shall take appropriate measures so that workers and/or their representatives in the undertaking and/or establishment receive, in accordance with national laws and/or practices which may take account, inter alia, of the size of the undertaking and/or establishment, all the necessary information concerning … (a) the safety and health risks and protective and preventive measures and activities in respect of both the undertaking and/or establishment in general and each type of workstation and/or job.

b.  Right to Consultation and Participation of Workers (Article 11 Directive 89/391/EEC) As expressed in the title of Article 11 Directive 89/391/EEC (‘participation’), the participatory dimension of the occupational health consultation is particularly important in relation to the individual worker the health and safety of whom is at stake. This approach is particularly necessary for dealing effectively with psychological stress. Article 11(1) Directive 89/391/EEC contains a broad concept of consultation and can be seen as an important illustration of the right to information and consultation enshrined in Article 27:142 ‘Employers shall consult workers and/or their representatives and allow them to take part in discussions on all questions relating to safety and health at work.’ This presupposes: –– the consultation of workers; –– the right of workers and/or their representatives to make proposals; –– balanced participation in accordance with national laws and/or practices.



142 See

ch 21 on Art 27 in this publication.

562  Klaus Lörcher Whereas paragraph 1 refers to workers’ representatives in general, paragraphs 2 and 3 address workers’ representatives with specific responsibility for health and safety with the right to be consulted and to ask the employer to take appropriate measures. However, consultation would not be adequately described if unions were not included, in particular on the various measures at national level. In this respect, Article 3(3) ESC (and Article 3 RESC extended to all areas of occupational health and safety), also providing for a general duty of consultation, is of particular importance as it is referred to in the Explanations. Moreover, the obligation to consult, inter alia, with the trade unions is provided for in three dimensions in ILO Convention No 187 on occupational health and safety at national level: with reference to (i) national policy (Article 3(3) ILO Convention No 187), (ii) the national system (Article 4(1) ILO Convention No 187) and (iii) the national programme (Article 5(1) ILO Convention No 187). In relation to ILO Convention No 155, the CEACR even mentions the consultation of the social partners as a ‘leitmotiv’ for the implementation of the provisions of the Convention. This does not mean that they would be excluded from the company level as they might have to be considered workers’ representatives (ILO Convention No 135). Going beyond consultation rights unions obviously have the right to conclude collective agreements or (in accordance with Article 4 ILO Convention No 98, Article 11 ECHR, Article 6(2) ESC, Article 28) may even call for collective action (Article 8 (1)(d) ICESCR, ILO Convention No 87, Article 6(4) ESC, Article 28). Moreover, ‘balanced participation in accordance with national laws and/or practices’ means that if national legislation provides for a more efficient form of participation (like co-determination) this refers to ‘all questions relating to safety and health at work’ (Article 11(1) Directive 89/391/EEC).143 c.  Right to Training (Article 12 Directive 89/391/EEC) The right to training has two addressees. First, Article 12(1) Directive 89/391/ EEC addresses workers by providing that ‘[t]he employer shall ensure that each worker receives adequate safety and health training, in particular in the form of information and instructions specific to his workstation or job’ at the beginning and during the employment relationship in the event of a new job, new material or new technology. Second, paragraph 3 entitles ‘[w]orkers’ representatives with a specific role in protecting the safety and health of workers … to appropriate training’. Finally, Article 12(4)(2) Directive 89/391/EEC ensures that ‘[t]he training referred to in paragraph 1 must take place during working hours’. 143 See recital 13 (‘Whereas information, dialogue and balanced participation on safety and health at work must be developed between employers and workers and/ or their representatives by means of appropriate procedures and instruments, in accordance with national laws and/ or practices’ [emphasis added]); see also recital 12.

Article 31  563 d.  Right Not to Bear Financial Costs (Article 6(5) Directive 89/391/EEC) Irrespective of who ultimately has to bear the costs (as a rule, employers are liable but in certain cases social security schemes might be involved), Article 6(5) Directive 89/391/EEC (and also Article 21 of ILO Convention No 155) clearly states the absolute right of exemption from financial costs for workers. More specifically, Article 12(4)(1) Directive 89/391/EEC lays down that training may not be at the workers’ expense or at that of the workers’ representatives. e.  Right Not to be Victimised (Article 11(4) Directive 89/391/EEC) More and more frequently the term ‘prohibition of victimisation’ is used in order to protect workers and their representatives against disadvantages of any kind when exercising their rights. This is particularly important in case of activities in relation to health and safety. Article 11(4) Directive 89/391/EEC provides for a comprehensive prohibition of discrimination in this respect. More recently, the CJEU has explicitly derived this prohibition from Article 47.144 Workers who monitor compliance with health and safety at work should not have to fear adverse consequences.145 Especially important in this context are ‘whistleblowers’, in particular with regard to non-compliance with health and safety standards.146 D. Limitations Limitations on the exercise of Charter rights have to meet the test required by Article 52(1).147 First of all, it has to be clarified in what way one can interfere with the rights enshrined in Article 31. One example might be that the European Union hinders Member States from ensuring fair and just working conditions by imposing austerity measures; or Member States in implementing EU law fail to establish healthy working conditions as employers; or if regimes for enforcing rights are inadequate. The same applies to omissions, for example, if the addressees of the obligations (in particular the EU) fail to legislate, even though they have the respective competence. In any event, any interference must be justified by a proportional test and respect the essence of the rights concerned (here in Article 31). Moreover, the ECtHR’s case law must be respected (Article 52(3)) and, finally, international standards that have been ratified by all EU Member States serve as a final minimum protection (Article 53).148

144 CJEU

14.10.2010 – C-243/09 (Fuß), para 66 (‘reprisal measure’). General Comment No 23 (2016), para 26. 146 See ch 14 on Art 11 in this publication. 147 See ch 6 on Limitations in this publication. 148 See ch 7 on Interpretation in this publication 145 See

564  Klaus Lörcher E. Enforcement Enforcement is probably just as important as the respective substantive right itself. Without effective enforcement rights will in practice remain theoretical or illusionary. This is particularly true for fundamental rights of workers149 and especially for regulations on health at the workplace. It might become even more important for ‘dignity at the workplace’. In a general way, the ECSR has recalled that compliance with the ESC ‘cannot be ensured solely by the operation of legislation if this is not effectively applied and rigorously supervised’.150 For labour inspection, the ESC includes in Article 20 (5) (Article A(4) RESC) the general obligation for each Party to maintain ‘a system of labour inspection appropriate to national conditions’. However, in addition, occupational health and safety requires specific measures under Article 3(2) ESC (Article 3(3) RESC). This provision is particularly relevant as it is mentioned in the Explanations. It prescribes health and safety regulations ‘to provide for the enforcement of such regulation by measures of supervision’.151 Without an effective supervisory system, occupational health and safety is endangered. In several cases, the CESCR was prompted to demand sufficient funds,152 in particular sufficient financial and human resources,153 and, if necessary, to increase the number of inspections.154 The aim is to ensure the independence and effectiveness of supervision (including controls).155 However, the core of the international legislation on labour inspection, to which the CESCR also refers,156 is ILO Convention No 81 (section I.C.iii). It expressly refers labour inspectorates to ‘working conditions and the protection of workers in the performance of their work, such as the rules on working time, wages, accident prevention, health protection and welfare’ (Article 3 (1) (a)) and it contains essential requirements on quality (Articles 6–9), quantity (­Article 10) and powers of inspectors (Articles 12, 13).157 Particular importance is attached to effective investigation, in particular in the case of fatal accidents.158

149 See, for the general principles of EU labour law enforcement, Bercusson (n 2) 403 ff. 150 ECSR, Decision on the merits 9.9.1999, No. 1/1998 (International Commission of Jurists v Portugal) para 33. 151 See Art 4(2) Directive 89/391/EEC, see also European Parliament resolution of 14 ­January 2014 on effective labour inspections as a strategy to improve working conditions in Europe (2013/2112(INI)). 152 Concluding observations 7.1.2008 – E/C.12/1/LVA/CO/1 – Latvia, para 42. 153 Concluding observations 1.12.2008 – E/C.12/1/PHL/CO/4 – Philippines, para 23. 154 Concluding observations 16.1.2008 – E/C.12/1/HUN/CO/3 – Hungary, para 36. 155 Concluding observations 4.1.2008 – E/C.12/1/UKR/CO/5 – Ukraine, para 39. 156 Concluding observations 26.6.2003 – E/C.12/1/Add 89 – Island, para 23. 157 See in particular the ILO, General Survey, 2006. For example, the CESCR refers to the suspension of enterprises, General Comment No 23 (2016) para 29. 158 See General Comment No 23 (2016), para 29 (‘effective investigations’) and ECtHR’s case law (9.5.2006 – No 60255/00 (Pereira Henriques and Others v Luxembourg) (violation of Article 2 ECHR because of ineffective investigations following a fatal accident); in the meantime this case law has

Article 31  565 The instrument, which was adopted in 1947, has since been supplemented by other standards. Workers must be given the opportunity to make comments during visits and inspections of the competent authority.159 Record-keeping obligations for checking compliance with, for example, the regulations on working hours do not conflict with data protection concerns.160 For the CESCR, sanctions are an essential element of enforcement. This is clearly illustrated by their frequent mention in Concluding Observations.161 It also expressly requires their effectiveness162 or even criminal sanctions.163 In line with the CJEU case law, EU labour legislation requires that sanctions be effective, proportionate and dissuasive. There are even specific principles on the effectiveness of supervision, for example, in relation to ‘paid leave’ as provided for by Article 14 ILO Convention No 132. i.  Right to Complain Necessary contents of the fundamental right and closely linked with the supervisory system are administrative and legal proceedings, which are available for workers and their representatives. The CESCR considers it necessary to inform workers about their rights.164 For the initiation of administrative proceedings, the possibility of an external (ie external) complaint is an important element (Article 11 (6) Directive 89/391/EEC). ii.  Right to Access to Court The ECtHR has decided a case that is of particular importance to local staff working in diplomatic missions, as they are often employed in unhealthy or unworthy working conditions. In that particular case, it considered that the refusal of access to a court in the State of origin to be a violation of Article 6(1) ECHR because of the consequences of sexual harassment.165 iii.  Right to Compensation It might be questionable whether and if so to what extent (financial) compensation can fall under ‘working conditions’. However, assuming a broad definition

been confirmed by 19.7.2016 – No 43885/13 (Pop v Romania); 12.7.2016 – No 34661/07 (Mučibabić v Serbia); 30.7.2015 – No 55902/11 (Ryzhenko v Ukraine). 159 For the respective right of workers’ representatives see Art 11(6)(2) Directive 89/391/EEC. 160 CJEU 30.5.2013 – C-342/12 (Worten). 161 Concluding observations 7.1.2008 – E/C.12/1/LVA/CO/1 – Latvia, para 42. 162 Concluding observations 19.12.2002 – E/C.12/1/Add 82 – Poland, para 43. 163 Concluding observations 16.1.2008 – E/C.12/1/HUN/CO/3 – Hungary, para 36. 164 ibid. 165 ECtHR 23.3.2010 – No 15869/02 (Cudak v Lithuania).

566  Klaus Lörcher of working conditions and considering in addition the widening legislation and case law on ‘working conditions’, for example, with regard to social advantages in the field of free movement of workers (Article 7(2) Regulation 492/2011), it would not appear doubtful that civil and/or social security (compensation) claims are also covered.166 However, it should not be possible to circumvent sanctions (‘sell’ occupational health and safety for financial compensation); instead the sanction should be strengthened if prevention was not (sufficiently) successful.167 III. CONCLUSIONS

The need for working conditions that respect the health, safety and dignity of workers has been strengthened by the Charter towards a (new) fundamental social right at EU level. It is also binding on the Member States as a minimum level of protection, above all because of the extensive use of EU competence in secondary EU law. As regards its content, not only secondary legislation, but also to a considerable extent other international and European fundamental rights protect occupational health, safety and dignity, thus providing an important basis for further clarification. However, to make these rights work efficiently in practice, considerable effort is indispensable, to which the CJEU will have to make an important contribution.168 Finally, fundamental rights as guaranteed in the Charter have to be respected, but also their application has to be promoted. There is still a very significant need for action here, especially at the national level.

166 Along these lines see also General Comment No 23 (2016), para 30 (‘States parties should ensure that workers suffering from an accident or disease and, where relevant, the dependants of those workers, receive adequate compensation, including for costs of treatment, loss of earnings and other costs, as well as access to rehabilitation services’). 167 See a similar development in relation to Art 2(4) ESC. Whereas in the 1961 ESC version it was required ‘to provide additional paid holidays or reduced working hours for workers engaged in dangerous or unhealthy occupations as prescribed’ the new 1996 RESC version requires first ‘to eliminate risks in inherently dangerous or unhealthy occupations and’ (only in the second instance) ‘where it has not yet been possible to eliminate or reduce sufficiently these risks’ the compensatory measures mentioned previously. 168 An important step in this direction can be seen in the two recent judgments Bauer ea and MaxPlanck-Gesellschaft (see n 78).

25 Article 32 – Prohibition of Child Labour and Protection of Young People at Work ANTOINE JACOBS

Article 32 – Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education.

EXPLANATIONS This Article is based on Directive 94/33/EC on the protection of young people at work, Art 7 of the European Social Charter and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers.

I. INTRODUCTION

A.  Context and Main Content The explicit insertion in the EU Charter of Fundamental Rights of the prohibition of child labour and the protection of young people at work is of great significance. Since the beginnings of industrial society, and the birth of modern labour law, the abuse of child labour has always disturbed the public conscience.

568  Antoine Jacobs This has led many countries to ban child labour and to require greater protection for young workers.1 According to the International Programme on the Elimination of Child Labour (IPEC) of the International Labour Organisation (ILO) child labour is ‘work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development’. Several elements form part of this definition, as it involves work that is mentally, physically, socially or morally dangerous and harmful to children; and interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work.2

Child labour standards are one of the pillars of the socio-economic value system of the European Union. However, only seldom have they achieved the status of fundamental rights in the national constitutions of the EU Member States. On one hand, the elevation of child labour standards to the status of a fundamental right of the EU may stimulate a more substantial European contribution to the global struggle against child labour and the exploitation of young workers. On the other hand, such elevation may also be helpful to eradicate the remaining pockets of child labour in the European Union. Although one may think that child labour does not happen anymore in EU Member States, there is an increasing amount of evidence that it still occurs in several of them, even if it is there less widespread than in the developing nations.3 B.  Relationship to Other Provisions of the Charter Article 32 is not the only provision of the CFREU that directly concerns children’s rights. Article 24, too, is about the rights of the child. Although this Article perhaps is most important for the realisation of family rights, nevertheless some of its lines may also be of interest for the interpretation and application of legal aspects of child labour: ‘Children shall have the right to such protection as is necessary for their well-being’ (paragraph 1). ‘In all actions

1 Thilo Ramm, ‘Laissez Faire and State Protection of Workers’, in BA Hepple, The Making of Labour Law in Europe (Oxford, Hart Publishing, 2010) 76–79 and 89–94; H Cunningham and PP Viazzo, ‘Some Issues in the Historical Study of Child Labour’ in H Cunningham et al (eds), Child Labour in Historical Perspective, 1800–1985. Case Studies from Europe, Japan and Colombia (Sovicille, Italy, 1996) 11–22. 2 ILO/International Programme on the Elimination of Child Labour (IPEC), What Is Child Labour?, 2015, Retrieved from International Labour Organization: http://www.ilo.org/ipec/facts/ lang--en/index.htmI. 3 http://humanrightscomment.org/2013/08/20/child-labour-in-europe/; ILO Report Child Labour: Targeting the Intolerable (Geneva, 1996).

Article 32  569 relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’ (paragraph 2). And even the line that children ‘may express their views freely’ (paragraph 1) may be a welcome support for labour inspectors and researchers involved in the fight against child labour! Moreover, attention must be given to Article 15 (Right to work), Article 21 (Right to non-discrimination) and Article 16 (Freedom to conduct a business), as they may be invoked against the protection of young persons. See on that item section II.D. C.  Relationship to Other Relevant Instruments There is no provision in the ECHR that corresponds to Article 32, so the meaning and the scope of this Article cannot be clarified by a corresponding article in the ECHR. Article 32 may, however, be made concrete by the sources from which it was taken. According to the abovementioned Explanations those sources are Directive 94/33/EC on the protection of young people at work, Article 7 of the European Social Charter (ESC) and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers (Community Charter). Moreover, the documents of the ‘Herzog Conventions’, called the CONVENTs, make it clear that other principal sources of inspiration of Article 32 have been the ILO Conventions Nos 138 and 182, as well as Article 32 of the UN Convention on the Rights of the Child (CRC). Therefore, in this chapter I shall refer to all these sources. i.  EU Instruments In the European Union, child labour was covered in points 20–23 of the Community Charter of Fundamental Social Rights of the Workers, adopted in 1989. These points were elaborated in Directive 94/33/EC on the protection of young people at work, adopted in 1994.4 This Directive prohibits in principle work by children below the age of 15, as well as night work and other heavy work by adolescents (15–18 years of age), but it allows specific derogations from these principles. It imposes a limit on working time for adolescents still in fulltime education, as well as minimum rest periods for children and adolescents. Finally, it lays down technical health and safety standards. The Directive should have been implemented by the Member States of the EU by 22 June 1996.5



4 Directive 5 Except

94/33/EC of 22 June 1994; OJ L216 of 2 August 1994. for the United Kingdom, which had to implement parts of the Directive by 22 June 2000.

570  Antoine Jacobs ­ oreover links can be made with Directive 2000/78/EC in relation to ‘age’, M (see below section II.D) and with Article 3(3)(2) TEU (‘It shall … promote … protection of the rights of the child’, see also Article 3(5) TEU). The ban on child work, however, is conspicuously absent from the recent European Pillar of Social Rights, 2017.6 ii.  Council of Europe Instruments In the Council of Europe, the detailed provisions of Article 7 of the 1961 ESC ban child labour and require regulation of work by young workers.7 Only a few Member States have excluded some sections from their ratification. iii.  ILO Instruments In the ILO, child labour was the subject of Convention No 5, adopted already at the first session of the International Labour Conference in 1919. It established a minimum age for work in industrial undertakings. It was followed by a number of other Conventions over the years, culminating in the Minimum Age Convention No 138 of 1973, which revised some 10 earlier minimum age Conventions. It has now been ratified by 171 countries, including all EU Member States. ‘The effective elimination of Child labour’ was also listed among the four fundamental rights at work which ILO Member States should comply with, even if they have not ratified the relevant Conventions.8 Later, child labour was subject of a new ILO Convention No 182 on the worst forms of child labour, 1999. Considering the difficulty of obtaining a larger number of ratifications for Convention No 138 the ILO decided to take a more gradual approach, prioritising the elimination of the worst forms of child labour (Convention No 182). Defined as such are: slavery and forced labour of children, trafficking of children, children’s involvement in prostitution, pornography, drug trafficking and in work that is likely to harm their health, safety or morals (Article 3). This Convention lays a number of urgent obligations on the ratifying states (in 2018: 181, including all EU Member States) against these forms of child labour.

6 See the Interinstitutional Proclamation on the European Pillar on Social Rights, OJ C 428/10 of 13 December 2017. 7 See also the somewhat modified text in Art 7 of the revised European Social Charter, see M Matey, ‘The European Social Charter: the Rights of Children and Young Persons to ­Protection’ in R Blanpain and C Engels (eds), The Council of Europe and the Social Challenges of the 21st Century (The Hague, Kluwer Law, 2001) 157–67; see also I Schömann, ‘The Right of Children and Young Persons to Protection’ in N Bruun, K Lörcher, I Schömann, and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford, Hart Publishing, 2017) 289–306. 8 Declaration of Fundamental Principles and Rights at Work, ILO Conference 1998; see A Trebilcock, ‘The ILO Declaration on Fundamental Principles and Rights at Work: A New Tool’ in Blanpain and Engels (n 7) 105.

Article 32  571 iv.  UN Instruments In the United Nations the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires that children and young persons be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of children should be prohibited and punishable by law (Article 10(3)). The CRC in Article 32(1) recognises the rights of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral and social development.

The Convention obliges Member States to take appropriate measures to ensure the right stated in Article 32. They have at least to provide for a minimum age, regulation of the hours and conditions of employment and penalties or sanctions to ensure the effectiveness of the regulation. II. CONTENT

A.  General Observations The protection of children and young people in employment was already included in the earliest drafts for the EU Charter. During the various sessions of the Convention that created the CFREU several amendments were tabled until the text of Article 32 was adopted.9 Article 32 is not a very elaborate legal norm, such as Article 7 ESC. One finds in Article 32 only the core substance of all regulation of child labour: a minimum age for entry to the labour market, as well as special requirements for the labour of adolescents. This makes it certain that the formulation of Article 32 is not sufficiently precise to make a real contribution towards resolving the remaining legal problems concerning child labour in the EU. Thus further interpretation is needed in order to clarify the content by referring to its sources (Article 6(1)(3) TEU). Nevertheless, it is submitted that the protection of children and young

9 See A Jacobs, ‘Prohibition of Child Labour and Protection of Young People at Work (Article 32)’, ch 14 in B Bercusson (ed), European Labour Law and the EU Charter of Fundamental Rights (Baden-Baden, Nomos, 2006) 381–400; H Stalford, ‘Art 32 Prohibition of Child Labour and Protection of Young People at Work’, in S Peers, T Hervey, J Kenner and A Ward (eds), Commentary on the Charter of Fundamental Rights of the European Union (Oxford, Hart Publishing, 2014) 285–88; Schömann (n 7).

572  Antoine Jacobs people in employment in Article 32 should be considered a ‘right’ and not as a simple ‘principle’ (Article 52(5)). B.  Field of Application Directive 94/33/EC shall apply to any person under 18 years of age having an employment contract or an employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State (Article 2(1)). However, it is submitted that the hard core of Article 32 – the ban on child labour and the specific rights of young workers – deserves the broadest possible application. It should also be applied to self-employed youngsters (see section II.E). In the words of the ECSR in its decision on the occasion of the first collective complaint in the framework of the European Social Charter:10 the prohibition of the employment of children applies to all economic sectors and all types of enterprises, including family businesses, as well as all forms of work, whether paid or not, agricultural and domestic work. Work within the family (helping out at home) also comes within the scope of Article 7 (1) ESC, even if such work is not performed for an enterprise in the legal and economic sense of the word and the child is not formally a worker. C.  Specific Rights Article 32 contains a number of specific rights with regard to (i) the ban on child labour and (ii) the specific rights for working children and adolescents. i.  The Ban on Child Labour (Paragraph 1) a.  The Minimum Age In ILO Convention No 138, the minimum age for admission to employment is specified for developed countries, with some exceptions, as not less than ‘the age of completion of compulsory schooling, and in any case not less than 15 years’ (Article 2(3)). In Article 7(1) ESC the minimum age of admission to employment is 15 years. In the Community Charter of 1989, point 20, the minimum employment age must be not lower than the minimum school-age and in any case, not lower than 15 years. Directive 94/33/EC on the protection of young people at work provides that the minimum age for admission to employment be not lower than the minimum age at which compulsory full-time schooling as imposed by national law ends or 15 years in any event (Article 1(1)). 10 ECSR 9.9.1999, International Commission of Jurists v Portugal, Collective Complaint, case no 1/1998.

Article 32  573 The standard in Article 32 is that ‘the minimum age of admission to employment may not be lower than the minimum school leaving age’. This text is a somewhat weaker formulation than the text in the four aforementioned international documents. It would allow Member States to fix the minimum age for employment under 15 years, if the minimum school leaving age is below 15 years. It is regrettable, therefore, that the Charter links the minimum age of employment only to the end of compulsory schooling and not to a more concrete age of 15 years, as was the case in the first draft (Convent 18) or 16 years of age. In reality, however, no Member State has fixed the minimum age of employment at an age lower than 15. About half the Member States have fixed the minimum age at 15 years; the other half at 16 years. Some have used the formula: either 15 (or 16) years, or the school-leaving age (whichever is higher). b.  Exception for ‘More Favourable’ Rules Article 32(1) explicitly states an exception to the minimum age of admission to employment: ‘without prejudice to such rules as may be more favourable to young people’. This is a somewhat curious phrase. At first sight it resembles the normal principle that social rights provide minimum standards, allowing only for rules that are more favourable to workers, That would in casu mean, that Member States may provide for a higher age for the admission to employment. The quoted line in Article 32(1), however, would also allow Member States to fix the minimum age of admission to employment at a lower age if that were advocated as being more favourable to young people. The source of inspiration for this phrase was point 20 Community Charter,11 which opens with the words ‘Without prejudice to such rules as may be more favourable to young people, in particular those ensuring their preparation for work through vocational training…’. These words indicate that rules on admission to employment may fix a lower age than the school leaving age, if this is favourable to young people. And such favourable rules are assumed, in particular, to be those ensuring their preparation for work through vocational training. In the third draft of the EU Charter12 the words ‘in particular those ensuring their preparation for work through vocational training’ were deleted. The result makes the remaining part of the phrase in the final text of Article 32 (‘without prejudice to such rules as may be more favourable to young people’) rather open-ended. It is submitted, however, that a proper understanding of this phrase can be obtained by having regard to the deleted phrase, with its origins in the Community Charter. Concrete illustration of this exception may be found in Article 4(2)(b) Directive 94/33/EC, which refers to ‘children of at least 14 years of age working under a combined work/training scheme or an in-plant work-experience scheme,

11 See 12 See

the Statement of Reasons under Art 37 in Convent 34. Convent 45 under Art 30.

574  Antoine Jacobs provided that such work is done in accordance with the conditions laid down by competent authorities’. However, Article 7 already gives a number of minimum conditions for work under these schemes. A comparable exception is made in Article 6 ILO Convention No 138. Several Member States, such as Germany, France and Ireland, have made use of this exception. Such exceptions are, in my opinion, acceptable, but Article 32 should not mean a green light for other exceptions with the argument that Article 32 generally allows ‘such rules as may be more favourable to young people’. c. Derogations Moreover Article 32 allows ‘limited derogations’ from the specified minimum age of admission to employment. The possibility of derogation entered the text of the Charter in its second draft13 with the words ‘and subject to derogations limited to certain light work’. This text was a literal reproduction of the text in point 20 of the Community Charter. However, in the third draft of the EU Charter,14 this text was abbreviated to the words ‘except for limited derogations’ and this has become the wording in the final text. The end result is that the Charter accepts that derogations on the prohibition of child labour are permitted if they are ‘limited’. The Charter thus leaves greater room for doubt about what constitutes an acceptable age for child labour than either the Community Charter or other international documents. It is clear that the derogation clause in Article 32 is much more vague and imprecise than the authorised derogations in other international instruments. 1.  Cultural or Similar Activities Article 5 of Directive 94/33/EC authorises a limited exception on the ban on child work ‘for the purposes of performance in cultural, artistic, sports or advertising activities … subject to prior authorisation to be given by the competent authority in individual cases’. In the other paragraphs of this Article further specifications are made, notably that the Member States must define the working conditions for such activities, making sure that they are not likely to be harmful to the safety, health and development of children and to their attendance at school or training. Article 8 ILO Convention No 138 also allows an exception for the participation of a child in ‘artistic performances’ under a system of permits granted in individual cases, which poses the conditions for this participation. Many Member States have made use of this possibility of derogation by establishing a set of national provisions. In the Netherlands the movie industry



13 See 14 See

Convent 34 under Art 37. Convent 45 under Art 30.

Article 32  575 complained that the national rules are too inflexible, whereas child rights supporters claim that the rules are frequently ignored and children are not given adequate professional care. 2.  Light Work Article 4(2)(c) of Directive 94/33/EC allows children of at least 14 years of age to perform light work. Light work may also be performed by children of 13 years of age for a limited number of hours per week in the case of categories of work determined by national legislation. Member States that make use of this exception must determine the working conditions relating to the light work in question (Article 4(3)). Directive 94/33/EC allows such derogations for ‘occasional work or shortterm work involving (a) domestic service in a private household, or (b) work regarded as not being harmful, damaging or dangerous to young people in a family undertaking’ (Article 2(2)). Moreover, the Directive provides that the working times of children may not exceed two hours on a school day, eight hours a day in a work/training scheme and seven hours a day if school is not operating or children are not full-time schooling anymore (Article 8). Article 7 ILO Convention No 138 makes an exception for the basic minimum age for the case of light work. Provided this work does not threaten the health and safety of children or hinder their education or vocational orientation and training, children between the ages of 13 and 15 years old in developed countries may perform it. The competent authorities must determine the activities and the working conditions for it. The ECSR holds that the exception to the prohibition on work under the age of 15 years in respect of ‘prescribed light work’ can mean only work that does not entail any risk to children’s health, moral welfare, development or education. The light nature of the work is assessed on the basis of the circumstances of each case. The nature of the work is a determining factor. Work that is unsuitable because of the physical effort involved, working conditions (noise, heat and so on) or possible psychological repercussions, may have harmful consequences not only on the child’s health and development, but also on its ability to obtain maximum advantage from schooling and, more generally, its potential for satisfactory integration in society. Work considered to be ‘light’ in nature ceases to be so if it is performed for an excessive duration. States are therefore required to define the types of work that may be considered light, or at the very least to draw up a list of those that are not, and to set out the conditions for the performance of ‘light work’, especially the maximum permitted duration and the prescribed rest periods. Even though it has not set a general limit on the duration of permitted light work, the Committee has considered that a situation in which a child under the age of 15 years works for between 20 and 25 hours per week during school term (Conclusions II, page 32), or three hours per school day and six to eight hours on week days when there is no school, is contrary to the Charter

576  Antoine Jacobs (Conclusions IV, page 54).15 Moreover, the time during which children may work during a school term must be limited so as not to interfere with their attendance, receptiveness and homework.16 In some countries (such as France and the United Kingdom) the legislator has made concrete this exception for light work with a negative list of work that children are not allowed to do; in other countries (such as Germany and the Netherlands) the legislator has laid down a positive list of work that children may perform. Some Member States have even added other conditions and limitations, such as the approval of parents (Germany) or the presence of a supervisor (the Netherlands). In Portugal the definition of ‘light work’ in Ministerial Order No 714/93 of 3 August 1993 was criticised by the Portuguese trade union CGTP for authorising far too many exceptions to the ban on child labour. It became subject for the first collective complaint under the European Social Charter (1998–99), which prompted the Portuguese legislator and authorities to radically improve the legal situation on this point. Light work by children is presumably one of the most controversial issues in the legal regulation of child labour in the Western world. It is commonly known that many children perform temporary jobs to earn pocket money. The climate of consumerism puts pressure on parents to give in and allow their children to take on such jobs. Sometimes, business exploits this eagerness among children, and public opinion condones this type of child labour. Prohibitions on child labour are condemned as ‘petty controls’. ii.  Specific Rights for Young Workers (Paragraph 2) a.  Working Conditions of Children Under the Minimum Age of Admittance to Work Article 32(2) further provides that young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education (second line). It is submitted that this phrase certainly also applies to children who are admitted to work below the minimum age as intended in Article 32(1),17 but it is not very specific in its requirements on the working conditions for these children. The ESC pays particular attention to the working conditions of this category of children. Article 7 requires that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education (paragraph 3) and that ‘the working hours of persons 15 ECSR, Collective Complaint No 1/1998, § 28; Schömann (n 7) 295. 16 ibid, 297–98. 17 Ieke Van den Burg MEP had proposed to amend this text accordingly: ‘Children and young people admitted to work must have …’, but in later drafts this was not adopted.

Article 32  577 under 16 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training’. National legislation in the Member States has subjected the work of children to a large variety of formulations, notably on points of its frequency, duration, compatibility with school schedules and maximum hours per day. b.  Regulation of the Work of Young Workers Under the Age of 18 The concern about child labour does not stop abruptly at the minimum age of access to employment. There is also a need for specific labour standards protecting young workers (minors/adolescents) between the minimum age of access to employment and the age of 18. This is recognised by the earlier mentioned text of the second section of Article 32(2). The basis for it is Article 3 of ILO Convention No 138, which imposes a minimum age of 18 years (exceptionally 16 years) for admission to any type of employment or work that is likely to jeopardise the health, safety and morals of young persons. There is also Article 32(1) CRC that deals with the rights of the child in the labour market, and covers all persons under the age of 18. Also, ILO Convention No 182 on Child Labour applies the term ‘child’ to all persons under the age of 18 (Article 2) and requires for them the prohibition of all ‘work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children’ (Article 3(d)). Finally, Directive 94/33/EC applies to any person under 18 years of age (Article 2). All this provides some background for the reading of the second paragraph of Article 32 of the EU Charter, which aims to protect young people admitted to work. c.  Working Conditions of Young Workers Under the Age of 18 This is relevant notably because Article 32 is not at all specific on requirements with regard to the working conditions of adolescents. Article 7 ESC specifies requirements in relation to the work of young workers in much more detail.18 It insists that young workers and apprentices have a right to a fair wage or other appropriate allowances (paragraph 4) and to four weeks’ annual holiday with pay. The time spent in vocational training during normal working hours with the consent of the employer must be treated as forming part of the working day (paragraph 5). Young workers shall not be employed in night work, with the exception of certain occupations provided for by national laws or regulations and – if employed in occupations prescribed by national law or regulations – shall be subject to regular medical checks (paragraph 7).



18 See

Schömann (n 7) 296–302.

578  Antoine Jacobs The Community Charter was also much more specific in its requirements concerning the working conditions of young workers, when it required that they must receive equitable remuneration in accordance with national practice (Point 21), that appropriate measures must be taken to adjust the labour regulations applicable to young workers so that their specific development and vocational training and access to employment needs are met. The duration of work must, in particular, be limited – without it being possible to circumvent this limitation through recourse to overtime – and night work is prohibited, save in the case of certain jobs laid down in national legislation or regulations’ (Point 22). It also required that, following the end of compulsory education, young people must be entitled to receive initial vocational training of a sufficient duration to enable them to adapt to the requirements of their future working life; for young workers, such training should take place during working hours (Point 23). Directive 94/33/EC requires the Member States to issue regulations with respect to working time, night work, breaks, rest periods and annual rest for young workers, and to prohibit the employment of young people in harmful occupations, as specified in the Directive. Various EU Member States require employers to analyse the risks to young people arising from their work, to inform adolescents of such risks and to take the necessary preventive measures to protect the health and safety of young people at work. In some Member States, the duration of the working time of young workers is limited to eight hours a day and 40 hours per week (sometimes with derogations). Various Member States have prescribed a minimum rest period for young workers. All EU Member States have prohibited night work by young people, with the possibility of derogations. In the Netherlands the work of 16 year-olds should be in harmony with the statutory obligation for these children to attend part-time education until their seventeenth birthday. d.  Protection of Young Workers Against Economic Exploitation Article 32(2) requires that young workers ‘be protected against economic exploitation’. This was already prescribed by Directive 94/33/EC (Article 1(3)). The question is: what exactly is meant by ‘economic exploitation’? For example, the Italian Constitution explicitly guarantees young workers equal remuneration for equal work (Article 37). This aspect of protection is not evident in the EU Charter, nor is it evident in other Member States. In the Netherlands, for example, the Law on Minimum Wages explicitly provides for a lower percentage of the minimum wage for young workers. Therefore, this Article 32(2) against economic exploitation will raise questions about Member States’ regulation of the payment of young workers. The ECSR has laid down a number of principles on the fair remuneration of young workers.19

19 ibid,

298–300.

Article 32  579 e.  Protection of Young Workers Against Harmful Work Article 32(2) prescribes the protection of young workers against ‘any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education’. This is almost identical to Article 1(3) Directive 94/33/EC, which requires the protection of young workers ‘against any work likely to harm their safety, health or physical, mental, moral or social development or to jeopardise their education’. Article 10 ICESCR requires special protection against the physical and moral dangers to which children and young persons may be exposed, and particularly against those resulting directly or indirectly from their work. And there are similar provisions in ILO Conventions 138 and 182 mentioned above in section II.C.ii.b. The analogous provision in Article 7(2) ESC is more specific. It requires states ‘to provide that a higher minimum age of admission to employment shall be fixed with respect to prescribed occupations regarded as dangerous or unhealthy’. This provision obliges Member States to determine a higher minimum age appropriate for specific occupations that are dangerous or unhealthy. D. Limitations A limitation on the application of Article 32 could be Article 51(1) Charter, where it is said that ‘the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard to the principle of subsidiarity and to the Member States only when they are implementing Union law’. However, in the case of Article 32 the Charter is not difficult to invoke, because the Member States of the EU are obliged to apply Directives 94/33/EC (protection of young persons) and 2000/78/EC (on age discrimination), so that Article 32 can be used to support the rights contained in these Directives and may temper courts to allow exceptions or narrow interpretations of these rules, giving them the aureole of a fundamental right. This is notably important when parties are opposing other fundamental rights to the protection of young persons. For example when parents and children would oppose the fundamental right of non-discrimination in Article 21 and Directive 2000/78/EC on age discrimination against rules that they may consider an infringement of the right to equal treatment based on age or against the right to work (Article 15), and also if employers invoke the freedom to conduct a business (Article 16). In all such cases the status of the rules on the protection of young persons as a fundamental right may give the courts the opportunity to strike a fair balance between the protection of young persons and other fundamental rights (see Article 52). The CJEU has already been asked

580  Antoine Jacobs to strike such a balance on several occasions.20 In such a case the fair balance should almost always give priority to the protection of the child. E. Enforcement The enforcement, by Member States and/or the EU institutions, of the fundamental rights provided by the Charter remains an open question, not addressed by the Charter itself. Parallel norms in other instruments regulating child labour offer existing mechanisms of enforcement. Article 14 Directive 94/33/EC requires each Member State to lay down effective, dissuasive and proportionate measures to be applied in the event of failure to comply with the Directive. National legislation on child labour and young people at work is generally enforced by a Labour Inspectorate, with administrative fines or criminal sanctions being available. In the eyes of the ECSR the supervision of states must, as regards the ban on child labour, concern not just the Labour Inspectorate but also the education and social services.21 All Member States impose sanctions for violations of the laws on the labour of children and young workers. Some countries, such as Denmark, simply refer to the general system of sanctions. But most countries have adopted specific sanctions, such as administrative fines (Netherlands, Spain); others have, besides financial penalties, also provided for custodial sentences (imprisonment) (Finland, Italy). To enforce the Charter, regular inspections should be carried out and sanctions should be substantial. In the Netherlands a penalty of 900 euros may be imposed on each case of contravention. However, it is doubtful whether in all EU Member States the Labour Inspectorate is sufficiently staffed and the Public Prosecution Service sufficiently diligent to enforce these laws. Therefore, there may be some doubt as to whether the prescriptions on child labour are sufficiently observed in practice in many Member States. In this respect attention should be given to technical problems in the enforcement of the legal provisions of child labour in complicated constructions on the modern labour market. For example, there was a recent court case about a concert given by the world-famous violinist André Rieu in Maastricht (Netherlands). The Labour Inspectorate wanted to fine Rieu more than 100,000 euros because he had allowed the participation of various children without authorisation from the Labour Inspectorate. Rieu was acquitted by the court because the children were part of a contracted group of singers and dancers of a Romanian



20 CJEU

5 July 2017, C-190/16 (Fries); CJEU 21 December 2016 C-201/15 (Aget-Iraklis), no 90. complaint ESC no 1/1998, §28.

21 Collective

Article 32  581 top pan-pipes artist, so that no employer’s responsibility could be established on the part of Rieu.22 In my opinion, rules on the protection of work of young persons can be effectively enforced only if a kind of chain responsibility is applied. And they should also be enforced against those commanding services from self-employed youngsters (see section II.D). F.  The EU and the Ban on Child Labour Outside the EU Requiring compliance with the fundamental rights pertaining to child and juvenile labour within the EU is one thing; obtaining respect for these rights outside the EU is another. In this respect I may point at another interesting development, coming from the Netherlands. The Dutch Parliament is actually discussing a Private Members bill to require from all firms that sell goods and services on the Dutch market a declaration that they have used due diligence to prevent that these goods and services are produced with the help of child labour.23 Comparable initiatives seem to be taken in France and Switzerland. A useful model for an EU initiative in this field? III. CONCLUSIONS

The prohibition of child labour and the special protection of young people at work are widely recognised aims of European societies. Article 32 may serve as an expression of this social standard. Against the backdrop of Directive 94/33/ EC it does not impose additional legal obligations on the Member States. On the contrary, the text of Article 32 is even weaker than Directive 94/33/EC. However, this weakness may be made good if it is interpreted with reference to similar provisions in other international instruments. Then its paramount advantage remains: namely that it has given protection against abuses of child labour the aureole of an enforceable fundamental right.

22 Administrative Law Judge of the Court of Roermond, 4 December 2017, in appeal confirmed by the Dutch Council of State, 24 October 2018, Nr 201800253/1/A3, ECLI:NL:RVS:2018:3492. 23 Parliamentary Papers Nr 34506.

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26 Article 33 – Family and Professional Life CSILLA KOLLONAY LEHOCZKY AND BARBARA KRESAL

Article 33 Family and professional life 1.  The family shall enjoy legal, economic and social protection. 2.  To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.

EXPLANATIONS Article 33(1) is based on Article 16 of the European Social Charter. Paragraph 2 draws on Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding and Directive 96/34/ EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. It is also based on Article 8 (protection of maternity) of the European Social Charter and draws on Article 27 (right of workers with family responsibilities to equal opportunities and equal treatment) of the revised Social Charter. ‘Maternity’ covers the period from conception to ­weaning.

I. INTRODUCTION

A.  Context and Main Content The first legal instruments at the EU level aimed at the reconciliation of work and family life had no definite equality basis in EU primary law. The legal basis of regulation was EU regulatory competence on safety and health matters, while

584  Csilla Kollonay Lehoczky and Barbara Kresal the provision of parental leave relied on the Social Protocol and the Community Charter on the Social Rights of Workers. Non-legal communications and policy instruments on reconciliation initiated in several waves across Europe have originated predominantly from economic and social policy considerations. Equality as a fundamental value was not expressed as a primary goal.1 Now the EU has shared competence under Article 153(1)(i) on promoting equality between men and women.2 Nevertheless citing economic and social policy targets as underlying measures to reconcile work and family life continued to be relied on.3 The initial steps – protection in case of pregnancy, maternity leave and parental leave – were to a considerable extent keeping women away from the workplace and thereby perpetuating gender stereotypes, rather than promoting active reconciliation of professional and private life obligations on an equal basis for women and men. The protection afforded to part-time and fixed-term workers was similarly tantamount to accepting an unbalanced situation in the labour market and trying to provide protection against additional disadvantages resulting from that imbalance. These measures, together with ‘protective’ legislation – banning women from taking certain jobs with reference to their arduous or dangerous nature – too often impeded instead of promoted the equality of women at work, in the family and also in society. This mistaken regulatory attitude was accompanied by a conscious disregard on the part of the Court. The Hofmann case4 was but one expression of the Court’s insensitivity at that time. In the Stoeckel case the Court expressed itself even more clearly: ‘the Directive is not designed to settle questions concerned with the organization of the family or to alter the division of responsibility between parents’.5 The silent approval of traditional gender roles by the legislation and the express confirmation by the Court naturally provoked criticism. Attention was called to the interdependence of market work and family work in the social

1 C Costello, ‘Article 33’, in S Peers, T Hervey, J Kenner, A Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Oxford, Hart Publishing, 2014) 895; G More, ‘The Principle of Equal Treatment: From Market Unifier to Fundamental Right?’ in P Craig and G de Burca (eds), The Evolution of EU Law 1st edn (Oxford, Oxford University Press, 1999) 517, 523–24. 2 Serving as the basis for Dir 2010/18/EU implementing the revised Framework Agreement on parental leave. For a detailed presentation of the EU legal sources see s I.C. 3 The renewed Lisbon targets, increased labour market participation, competitiveness and the aging population can be mentioned. See recital 5 of the General Considerations. 4 Case C-184/83, Hofmann v Barmer Ersatzkasse, not finding a violation in rejecting the father’s claim for a period of maternity leave after the expiry of the protective period, in spite of the consent of the parents. 5 C-345/89, Criminal Proceedings v Alfred Stoeckel at 17, referring also to the Hofmann case. The Directive referred to is the Equal Treatment Directive, Dir 76/207/EEC.

Article 33  585 construction of gender6 and the fact that the fundamental principle of equality needs essential changes in the division of family obligations and r­ esponsibilities.7 Equal access to and equal sharing of household and care work between men and women is an indispensable precondition for equal access to and equal participation in the labour market. In spite of this manifest lesson from past decades, actions at the EU, as well as at national level remain one step behind what is required. In April 2017, the Commission adopted a Communication on the Initiative to Support Work–Life Balance for Working Parents and Carers8 (hereafter ‘Communication’) as ‘one of the key deliverables of the European Pillar of Social Rights’.9 A Proposal for a Directive on Work–Life Balance for Parents and Carers10 was presented to the European Parliament’s Committee on Employment and Social Affairs in early 2018.11 Although remaining within the context of the economy the new proposal seems to signal an awareness of the importance of a modern work–life balance policy not only for economic targets and priorities12 but also for fairness and gender equality. Recital 3 of the Preamble of the proposed new Directive on work–life balance contains explicit reference to Article 33 CFREU. The new language – work–life balance instead of reconciliation – may shift the whole subject matter into a broader, more gender-neutral area, with a redesign of the interrelationship between private life and the workplace not only in care work, but also more generally.13 Article 33 has rightly been criticised for its substantive shortcomings.14 It indeed simply reproduces existing positions or even less. Addressing these

6 For the first overall theory see Frances Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harv L Rev 1497, esp on 1521; see also M Barbera, ‘The Unsolved Conflict: Reshaping Family Work and Market Work in the EU Legal Order’ in T Hervey and J Kenner (eds), Economic and Social Rights Under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford, Hart Publishing, 2003) 145. 7 H Fenwick and T Hervey, ‘Sex Equality in the Single Market: New Directions for the European Court of Justice’ (1995) 32 Common Market Law Review 443; Barbera (n 7) 145. 8 Communication from the Commission to the EP, the Council, to the ECOSOC and the Committee of the Regions. COM(2017) 252 final. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CO M%3A2017%3A252%3AFIN. 9 Introduction of the Communication, at par 7. 10 COM/2017/0253 final – 2017/085 (COD), 26.4.2017. 11 http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/614708/EPRS_BRI(2018)614708_ EN.pdf. 12 ‘A modern work-life balance policy will contribute to improving employment rates and to reducing poverty and social exclusion, in line with EU priorities reflected in the Europe 2020 targets and with the Commission’s priorities of jobs and growth’, Communication at 6. See also recital 5 of the Preamble of the proposal for a new directive. 13 See C Kollonay-Lehoczky, ‘The Scope of Labour Law: Re-Drawing the Boundaries of Protection in the Post-Socialist New Member States. Based on Hungarian Experience’ in G Davidov and B Languille (eds), Boundaries and Frontiers of Labour Law (Oxford, Hart Publishing, 2006) 241–43. 14 Costello (n 1) 917; Barbera (n 6) 139.

586  Csilla Kollonay Lehoczky and Barbara Kresal ­ eficiencies, the presentation below attempts to point out the implied additional d content of this provision. B.  Relationship to Other Provisions of the Charter Given that Article 33 is rather weak and modest in defining the content and concrete rights in the area of reconciliation of family and professional life, the fundamental rights’ perspective on work–family balance could be enriched and reinforced by combining this provision with other Charter provisions. There is a close relationship with all labour rights and especially with Article 31, which should take into account work–life balance issues. There is even an overlap with Article 7 on the right to respect for private and family life, which corresponds to Article 8 of the ECHR. Furthermore, Article 33 is inextricably linked with the whole Equality Chapter of the Charter and could well form part of it. Given that women still take greater responsibility for caring for children and other dependent family members and that they are disproportionately burdened by unpaid care work within the family compared with men, the reconciliation of work and family life is inevitably one of the prominent equality issues.15 Article 23 of the Charter on equality between women and men is of the utmost importance, as is the general provision on non-discrimination in Article 21. Family responsibilities, although not explicitly mentioned, are one of the possible grounds for discrimination. Examples of possible multiple discrimination in this regard – gender in combination with ethnic origin or disability, sexual orientation and so on – should not be overlooked when analysing work–family balance issues either. Reconciliation of work and family responsibilities is not limited to caring for children; with the ageing of the population more and more working people are also caring for their older family members and here again, an unbalanced gender division of care work is significant. The same is true in the case of family members with disabilities. Consequently, Article 25, which is dedicated to the rights of the elderly and Article 26 on integration of persons with disabilities, together with Articles 23 and 21 on equality and non-discrimination, could therefore serve as an additional source for upgrading the content of the Charter’s requirements in the area of reconciliation of family and professional life. In the case of caring for children, special attention should also be given to the relationship between Article 33 and Article 24 on the rights of the child.

15 See, for example, M Mooney Cotter, Pregnant Pause – An International Legal Analysis of Maternity Discrimination (London, Ashgate, 2010); M Mercat-Bruns, Discrimination at Work: Comparing European, French and American Law (Oakland, University of California Press, 2016) 179–80; A- J Fudge, ‘Global Care Chains: International Migrant Care Work’ (2012) 28 International Journal of Comparative Labour Law and Industrial Relations 63–69 and many others.

Article 33  587 Although not very often explicitly mentioned within the framework of work–life balance policies, the principle of the best interest of the child should be at the heart of every discussion on work–family balance measures. Measures addressed to working parents indirectly influence the situation of their child(ren) and the children’s ability to fully realise their rights in everyday life, in particular to pursue their well-being and their best interests.16 Therefore work–family balance measures have to be evaluated from this perspective as well and designed in a way that takes into account the needs and best interests of the child, the principle stemming from Article 24. In short, adequate, gender-neutral policies and rights for a better work–life balance for all should support working parents, promote gender equality and serve the best interests of the child. Given that all the Charter’s provisions on fundamental rights are interrelated, that means, on one hand, that the interpretation of Article 33 should be influenced by other relevant Charter provisions and, on the other hand, that other provisions in the Charter have to be interpreted in the light of work–life balance requirements and the need of people – women and men – to adequately reconcile family and professional responsibilities. No one should be faced with the dilemma of either caring for their family or pursuing a professional career. C.  Relationship to Other Relevant Instruments i.  EU Instruments The most important EU instruments in this area are: –– Parental Leave Directive 2010/18/EU implementing the revised Framework Agreement on parental leave,17 which replaced the earlier Parental Leave Directive (96/34/EC)18 and –– Maternity Protection Directive 92/85/EEC (also called the Pregnant Workers Directive).19 The CFREU Explanations to Article 33(2) explicitly refer to the Maternity Protection Directive and to the first Parental Leave Directive, but not to the revised one from 2010.20

16 B Kresal and A Zbyszewska, ‘Through Work-Life-Family Reconciliation to Gender Equality? Slovenia and the United Kingdom’s Legal Frameworks Compared’ in S De Groof (ed), Work-Life Balance in the Modern Workplace (Alphen aan den Rijn, Kluwer, 2017) 155–56. 17 OJ L 68, 18 March 2010, pp 13–20. 18 OJ L 145, 19 June 1996, pp 4–9. 19 OJ L 348, 28 November 1992, pp 1–7. 20 The Explanations (from 2007) have not been able to take account of the further development in the secondary legislation (Directive 2010/18) – concerning the Explanations see Klaus Lörcher in ch 7 ‘Interpretation’ in Part I of this volume.

588  Csilla Kollonay Lehoczky and Barbara Kresal The Recast (Gender Equality) Directive 2006/54/EU21 is of particular importance, as is the corresponding CJEU case law, which includes some important judgments dealing with work–life balance and gender discrimination. Many other EU directives are relevant, such as those dealing with non-standard work, especially part-time work (which is particularly linked with family responsibilities and strongly gendered), working time, self-employed women and so on. The Community Charter of Fundamental Social Rights of Workers from 1989 addressed the work–family balance in Point 16(3). Work–life balance is explicitly mentioned in the European Pillar of Social Rights of 2017 (Pillar; Chapter II – Fair Working Conditions; Principle 9). Compared with Article 33, the text of the Pillar seems to be broader. However, it does not contain legally binding provisions.22 ii.  Council of Europe Instruments According to the Explanations, paragraph 1 is based on Article 16 ESC (right of the family to social, legal and economic protection), whereas paragraph 2 – in addition to the fact that it draws on the abovementioned directives on maternity protection and on parental leave – is based on Article 8 ESC and draws on Article 27 RESC. Although not mentioned explicitly, Article 8 ECHR and the respective case law of the ECtHR are relevant as well. Article 27 RESC guarantees the right of workers with family responsibilities to equal opportunities and treatment.23 Its multidimensional approach goes beyond the old 1961 ESC and builds on the principle of equal treatment and equal opportunities.24 States should provide the possibility for either parent to obtain parental leave and at least some part of this leave should be non-transferable.25 The ECSR’s Statement of interpretation on Article 27 from 2015 addresses one of the crucial issues of parental leave, compensation during leave: ‘States shall ensure that an employed parent is adequately compensated for his/her loss of earnings during the period of parental leave. … Regardless of the modalities of payment, the level shall be adequate.’26 According to the ECSR, the remuneration of parental leave plays a vital role in the take up of childcare leave, in particular in the case of fathers or lone parents.27

21 OJ L 204, 26 July 2006, pp 23–36. 22 On the Pillar see Antoine Jacobs in ch 3 ‘CFREU in the future of Europe’ in Part I of this volume. 23 For more see I Schömann, ‘The Right of Workers with Family Responsibilities to Equal Opportunities and Equal Treatment’ in N Bruun, K Lörcher, I Schömann and S Clauwaert (eds), The European Social Charter and the Employment Relation (Oxford and Portland, Hart Publishing, 2017) 456. 24 M Mikkola, Social Human Rights of Europe (Porvoo, Karelactio, 2010) 451. 25 Conclusions 2015, Austria, Art 27(2). 26 Conclusions, 2015, Statement of Interpretation on Art 27(2). 27 Conclusions, 2015 Austria, Art 27(2).

Article 33  589 Article 8 ESC guarantees that employed women, in case of maternity, have the right to special protection, including protection against dismissal, maternity leave, breastfeeding breaks, regulation of night and dangerous work. The texts of the 1961 ESC and of the Revised ESC differ on certain points.28 A shift from the earlier ‘protective’ approach towards the approach based on the equality principle and the protection of equal freedom and autonomy can be observed.29 The ECSR adopted two important statements of interpretation (in 2011 and 2015) on the level of maternity benefits and on the length of (obligatory) maternity leave. Last but not least, Article 8 ECHR has to be mentioned. The case ­Constantin Markin v Russia30 concerned the refusal to grant a male civil servant in the armed forces parental leave (after a divorce he was sole carer of the children) under the same rules that would apply to female civil servants. The ECtHR held that there had been a violation of Article 14 in conjunction with Article 8 of the ECHR. iii.  ILO Instruments As early as in 1919, the first ILO Maternity Protection Convention (No 3) was adopted, later replaced by the revised version in 1952 (No 103) and in 2000, the newly revised Maternity Protection Convention (No 183) was adopted.31 ILO Convention No 156 on Workers with Family Responsibilities of 1981 was the first legally binding international instrument dealing specifically with this issue and introducing many advanced concepts and solutions in the area.32 A number of other ILO conventions are relevant, in particular those dealing with equality and non-discrimination (two fundamental conventions, No 100 on equal pay and No 111 on discrimination), those dealing with atypical forms of employment, especially the Part-Time Work Convention (No 175), as well as the Home-Work Convention (No 177) and Domestic Workers Convention (No 189). iv.  UN Instruments Besides the two UN general human rights instruments,33 the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Convention on the Rights of the Child should be mentioned. 28 For a comprehensive comparison and historical developments see C Kollonay-Lehoczky, ‘The Right of Women to Maternity Protection’ in Bruun, Lörcher, Schömann and Clauwaert (eds) (n 24)308–09. 29 ibid 308, 322–25. 30 ECtHR (Grand Chamber), 22 March 2012, No 30078/06, Constantin Markin v Russia. See also ECtHR, 2 November 2012, No 33411/05, Hulea v Romania, and some others. 31 It requires paid maternity leave of 14 weeks, non-discrimination and employment protection, protection against dismissal and breastfeeding breaks. 32 Together with its supplementary ILO Recommendation No 165, it served as the main source of inspiration for Art 27 RESC. See Explanatory Report to the RESC, para 102. 33 The CESCR’s General Comment No 23 on the right to just and favourable conditions of work, Art 7 ICESCR (27 April 2016, EC.12/GC/23) is relevant, points 34 and 46.

590  Csilla Kollonay Lehoczky and Barbara Kresal The preamble of CEDAW explicitly points out that bringing up children requires a sharing of responsibility between men and women and society as a whole. The Convention on the Rights of the Child includes the principle that both parents have common responsibilities for the upbringing and development of the child and the principle of the best interests of the child. II. CONTENT

A.  General Observations The history of the adoption of Article 33 reveals the controversies evoked by this provision of the Charter. Adopted at a late phase of the preparatory works, it was originally located in two different Articles, covering different areas. The legal, economic and social protection of the family was in Article 13 on ‘Family life’ as paragraph 3. Article 39, as one of workplace rights, was on ‘The right to reconcile family and professional life, in particular the right to maternity leave and parental leave’. This latter was opposed by numerous comments. Questioning its fundamental nature and its compatibility with Community legislative power resulted in proposals treating it as a health and safety norm.34 The merged text – carrying the marks of its controversial past – is now a combination of a broad, general principle, on one hand (paragraph 1) and narrowly phrased enforceable rights on the other, apparently adding nothing to existing Community law (paragraph 2)35 under a general title, dropping the reference to reconciliation. The apparent emptiness tremendously increases the significance of interpretation assigned the task of unpacking the content of the sparse text. Eminently, interpretation may detect the rights and principles behind both paragraphs that, by their text, mistakenly suggest that paragraph 1 is only about principles, while paragraph 2 is purely about rights. The title of the provision names family first, then profession. In this order, paragraph 1 is aimed at the protection of family (without mentioning profession), while paragraph 2 entitles people to protection in their profession with regard to reconciliation with private life in a small segment of human lives. This priority established in favour of family not only ‘could inform Article 33(2) and measures in the field’,36 but also provides inspiration for the creative interpretation of both (almost ‘empty’) paragraphs.

34 See comments on Art 39 in the Draft Charter, Convent 39, including the proposal to merge Arts 36 (health and safety), 37 (young people) and 39. http://register.consilium.europa.eu/doc/ srv?l=EN&f=ST%204372%202000%20INIT. 35 Costello (n 1) 893. 36 ibid.

Article 33  591 The special role of the family and the fundamental principle of equality and non-discrimination permeating all provisions of the CFREU, coupled with the reference to Article 16 RESC with its rich content paves the way for rights protected by Article 33(1).37 B.  Field of Application Protection of the family in the context of profession means that workers with dependent family members are protected by Article 33. Two terms need clarification here. First, what personal ties constitute a ‘family’, and second, who are considered ‘dependent’ family members, whose dependence brings the worker under the scope of Article 33? Most commentaries call attention to the trend towards extending the concept of family beyond married couples with children.38 Article 7 CFREU links its meaning with the concept under Article 8 ECHR, this – according to 52(3) CFREU – requires the application of the ECtHR meaning of ‘family’. The negative approach of the ECHR (merely guaranteeing non-interference) and the positive approach of the RESC (establishing positive State obligations to promote the fulfilment of the function of the family) makes a difference here. The positive obligations under the RESC limit the applicability of Article 8 ECHR. While relying on the ECtHR case law and emphasising that the scope of Article 16 (expressly extended to single parent families by the Appendix) is not restricted to families based on marriage, the ECSR assesses compliance with the social protection obligation of States Parties on the basis of the definition of ‘family’ under national law. EU law does not provide a definition of ‘family’ (no competence). Directive 2004/38/EC on the right of EU citizens and their family members to free ­movement39 gives a definition of ‘family member’40 with regard to the right to move freely, not necessarily congruent with the concept of the family as a unit for social protection purposes. The Parental Leave Directive does not give a

37 See more below in s II.C on ‘Specific rights’. 38 Costello (n 1) 895. 39 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. 40 ‘Family member’ means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).

592  Csilla Kollonay Lehoczky and Barbara Kresal ­ efinition either, although it suggests a narrow conception, restricted to parents d and dependent children. Only a tightly defined exceptional opportunity goes beyond small children: ‘time-off’ (not leave) shall be made available for ‘urgent family reasons’ only ‘in cases of sickness or accident making the immediate presence of the worker indispensable’.41 The inadequacy of this regulation for a genuine work–life balance is acknowledged by the recent Commission Communication on the Initiative to support work–life balance. Article 27 RESC (Appendix), on the other hand, extends the protection and positive obligations of the State to ‘other members of [the worker’s] immediate family who clearly need their care and support’ (defined as such by national legislation). Article 33 does not mention dependent family members; such responsibilities are implied by basing the provision on Article 27 RESC by the Explanations. The uncertainties and differences behind the context and content of the two paragraphs reflected by the history of the CFREU are present today. While Article 16 ESC, the ‘basis’ for 33(1), has broad coverage (including issues such as family housing, the rights of spouses, protection against domestic violence or mediation services in case of family crisis) the location and title of Article 33 limits its content to the rights regarding the workplace context of family life (and family context of working life). This fundamental right is supposed to guarantee that neither of the two areas of human life should decrease the quality of the other; thus there should be no need to choose between them, even if choosing seemingly ‘freely’. C.  Specific Rights Article 33 consists of two provisions. They seem different regarding both their social context and legal nature. Article 33(1) establishes positive obligations of a soft character, laying the ground for national action and regulation.­ Article 32(2) grants rights unequivocally: no one may be removed from the workplace due to maternity or have to withdraw from the workplace due to maternity or paternity. Both paragraphs indicate more than hinted at by a first reading: Article 33(1) is a basis and also an umbrella for rights indispensable for reversing the current imbalance between work and private life and at the same time paragraph 2 confers more on families than the language of the provision might suggest. Evolving the content corresponding to the far-reaching promise of the title depends on the responsible institutions, law-makers and the Court and their considered interpretation.



41 Dir

2010/18/EU, Clause 7.1.

Article 33  593 i.  Protection of the Family with Regard to Professional Obligations The interpretation of Article 33 in this sub-chapter is based on the developed and rich content of Articles 16 and 27 RESC. They are ‘assigned’ by the Explanations to different paragraphs – Article 16 to 33(1) and Article 27 to 33(2) – nonetheless they both have to be relied on for the interpretation of both paragraphs. Their interrelated and intertwined content connects them, bringing up the opportunity to develop the content of both. a.  The Right of Families and Carers to Equal Treatment The fundamental principle of equality under the EU law and the legal framework provided by Articles 20 and 21 CFREU established an enforceable right of families to equal treatment in legal terms. While the right to equal treatment can be considered a self-standing enforceable right, it establishes access to concrete substantive rights. Furthermore, Article 16 RESC declares the right of the family, as a fundamental unit of society, to protection: as a unit of related persons it is a subject of protection generating rights for its members and also a subject of the right to equal treatment. Maintaining the unity of the family is a highly ranked goal under EU law42 and is, together with the principle of equality and freedom,43 an important source of rights. It is a long-held thesis in international jurisprudence on equality that it can function as a ‘vehicle’ for non-regulated or soft law entitlements to protection as an enforceable right.44 Currently the prohibition of discrimination with regard to nationality seems the most powerful ‘vehicle’ for granting access to substantive rights once any of them is established under the national law of a Member State. The equality principle expressed in Article 27 RESC, in the employment context, establishes the right of workers with family responsibilities to equal treatment with workers not having such obligation. The gender-neutral language might foreshadow an age in which the sex of the worker will not be a proxy for being bound by family obligations. b.  Institutional Assistance (Social and Childcare Institutions) Childcare institutions and other social institutions providing daily care are indispensable for the protection of the family, if adult members of the family 42 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, Preamble, recital 6. 43 See Barbera (n 6)142. 44 SWM Brooks v Netherlands, decision by the UN Human Rights Committee (granting pension rights on the ground of equal treatment), Communication No 172/1984, Netherlands, 9 April 1987. CCPR/C/29/D/172/1984 is considered a milestone case, followed by numerous cases at different judicial institutions.

594  Csilla Kollonay Lehoczky and Barbara Kresal are engaged in work in the labour market. Thus, Article 33(1) entails an obligation of Member State governments to provide a system of properly financed child institutions. Both Articles 16 and 27 RESC require Party States to ensure childcare facilities that are available, affordable and of good quality (coverage with respect to the number of children aged zero to six, ratio of staff to children, staff training, suitable premises and cost of childcare to parents). This obligation is very important for labour market equality. The Commission is proposing non-legislative measures to address the lack of adequate care services or to tackle economic disincentives to work for second earners. While there is no such enforceable right under Community law, several Member States have adopted legislation granting individual rights to enjoy the benefits of such institutions and even in the absence of such rights under national law, once established, the right to access shall be open without discrimination: an individual enforceable right will have been established. The CJEU’s Lommers judgment45 approving the reservation of subsidised nursery places for women and rejecting the claim of a male staff member was questionable already under the 1976 Equal Treatment Directive. It treated the case as a justified derogation from equal treatment to promote equal opportunities for women; however, by confirming gender-role stereotypes it rather suppressed than promoted equal opportunities.46 Family–work balance within the meaning of Article 33 CFREU might require a different assessment of such a case. c.  Working Conditions (Working Time, Flexitime, Telework) Under Article 27(1)(b) RESC there is an obligation of State Parties to take into account the needs of workers deriving from their family responsibilities in terms of conditions of employment, first of all the length and organisation of working time. The Working Time Directive sets minimum working time requirements which are subject to change with the progress of time, knowledge and technology. This, read in conjunction with Article 1(1) of the Framework Directive,47 with the goal of introducing measures to encourage improvements, might indicate some realisation of the harms of workplace stress to family life. Any regulatory action regarding working time at EU or national level should take Article 33 and the fundamental rights dimension of work–life balance into consideration.

45 Case C-476/99, Lommers v Minister van Landbouw, Natuurbeheer en Visserij. 46 C Costello, ‘Gender Equalities and the European Union Charter of Fundamental Rights’ in Tamara Hervey and Jeff Kenner (eds), Economic and Social Rights Under the EU Charter of Fundamental Rights (Oxford, Hart Publishing, 2003) 121. 47 Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work.

Article 33  595 Among other things, the possible exclusion of managing executives from the relevant protection48 needs re-consideration, not only because of expectations of an increase in the number of women in such positions, but also with regard to the right of male executives, too, to work–family balance under Article 33. Despite the evident presence of statutory competence, no radical legislative step has been adopted yet, either at Union or national level. This at the same time should not prevent but rather increase the responsibility of trade unions in utilising available opportunities. Article 21(2) Recast Directive assigns to Member States and trade unions the task of promoting gender equality and flexible working arrangements, ‘with the aim of facilitating the reconciliation of work and private life’ within the scope of their collective bargaining capacity. It apparently takes time for responsible bodies to find the right role and place of reconciliation norms within the system of working time regulation. The justified criticism of the two ‘failed attempts’ to rely on Article 27 RESC in collective complaints, and the ‘disappointing rulings’ of the ECSR,49 may call attention to the uncertainty and caution of relevant bodies – which have been basing their decisions on more conventional protective grounds (general protective regulations) – regarding the relatively new reconciliation requirements. As time passes, with growing consciousness of the importance of work–family balance, the requirements under Article 33 CFREU and Article 27 RESC may become more evident and compliance will grow. ii.  Protection with Regard to Pregnancy, Maternity, Paternity and Family Responsibilities Legal protection of women as regards pregnancy and maternity was considered originally as an exception to the principle of equal treatment. In the 1976 Equal Treatment Directive pregnancy and maternity were regulated as one of the three cases of permitted discrimination, together with professional activities in which sex constituted ‘a determining factor’ and with positive action to promote the equality of women. Progress in equality concepts – that is, not looking at everything through male-lenses – has brought about more differentiated views on ‘exceptions’. Similarly positive measures that are not necessarily considered a departure from equal treatment, rather a form of equal treatment: ‘accommodation’ of ­pregnancy,50 the equal (ie equalising) respect of different backgrounds51 – taking 48 WTD, Art 17(1)(a). 49 Costello (n 1) 910 on Collective Complaints nos 9/2000 and 56/2009. See also the dissenting opinion attached to the latter decision. 50 See C Kollonay-Lehoczky, ‘The Right of Women to Maternity Protection’ in Bruun, Lörcher, Schömann and Clauwaert (eds) (n 23) 309. 51 R Dworkin, ‘The Court and the University’ (2004) 72 University of Cincinnati Law Review 889–91.

596  Csilla Kollonay Lehoczky and Barbara Kresal the special state of the worker into consideration – does not contravene, but rather comply with the principle of equal treatment. Article 28 Recast Directive treats pregnancy protection separately from explicit exceptions and the language still earmarks protection as a departure from equal treatment. The reference to the Pregnant Workers Directive in the Explanations brings pregnant women under the protection of this Directive not only in terms of the prohibition of dismissal but also in terms of broad safety and health protection. Article 33(2) grants the right to protection against dismissal connected to maternity. The Explanations limit the concept of ‘maternity’ to the shorter period from becoming pregnant to weaning. The concept of ‘pregnant worker’ has varying interpretations; the most restrictive definition, not permitting any extension, relates to the labour health and safety measures, and gradually broadens with regard to the prohibition of dismissal and the various free-time and leave opportunities. There is a rich CJEU case law on protection against the discriminatory dismissal of pregnant women and in relation to parenthood, going far beyond the narrow prohibition (during and because of pregnancy and breastfeeding) under Article 33(2) CFREU. However, this case law is based much more on the prohibition of sex discrimination under the Recast Directive than on the Pregnant Workers Directive. Article 10 Pregnant Workers Directive requires a general prohibition of dismissal, ‘save in exceptional cases, not connected with their condition which are permitted under national legislation and/or practice’. In the recent case of Jessica Porras Guisado52 the CJEU has given guidance in the context of collective redundancy. It considered national law permitting dismissal of pregnant workers in case of collective redundancies, without requiring additional reasons, and without giving them priority in respect of retention or redeployment as not precluded by EU law.53 This regrettable interpretation – not making any mention of the fundamental right granted in Article 33(2) CFREU – sets the level of protection significantly lower than the ECSR jurisprudence. Under this case law termination of the employment of the pregnant woman is possible only when maintaining employment is impossible for objective reasons, or when the employee is guilty of serious misconduct. The protection under Article 33 CFREU is apparently narrower than in either of the sources referred to. Protection shall be granted to everyone against dismissal but only if ‘connected to maternity’, while under both Article 10 Pregnant Workers Directive and Article 8 RESC there is a general prohibition of dismissal on any ground (except the abovementioned extreme situations). Thus because any unfavourable treatment with regard to maternity is discrimination and prohibited under the Recast Directive, the provision seems to bring nothing.



52 C-103/16, 53 ibid,

Jessica Porras Guisado v Bankia SA & Others [2018]. 71–72.

Article 33  597 iii.  Maternity and Parental Leave a.  The Essential Content of the Rights to Maternity and to Parental Leave By including Article 33 in the CFREU, the right to maternity leave and the right to parental leave have been recognised as fundamental rights within the EU legal order. However, the content of these rights – what concrete entitlements stem from the fundamental right to maternity/parental leave – is not defined by the CFREU. When trying to define the essential content of the right to maternity leave and to parental leave, the nature of that right, its aim and goals, as well as the constitutional values behind it can serve as a reference point and guidance, whereby the relevant international and European human rights instruments (see above under section I.B and C) and interpretation by the respective supervisory bodies have to be taken into account as well. The CJEU has not referred to Article 33(2) in its judgments on maternity or parental leave for quite a long time, and it did so for the first time in Maïstrellis54 (July 2015) and recently in H.55 However, in these two judgments only a short reference to Article 33(2) was made, reproducing the relevant part of the text of this provision, whereas the CJEU has not yet used the opportunity to express its views as to the fundamental rights content of these two rights.56 However, the CJEU case law on maternity and parental leave is nevertheless quite elaborate and important. The most important questions as regards the content of the rights to maternity and to parental leave are, at the very least: –– defining the right to absence from work due to maternity/parental leave (the employer should not be allowed to influence in any way the free choice of parents whether, when and how to exercise their maternity or parental leave, and should be prevented from hindering in any way full enjoyment of the right to maternity or parental leave by working parents); –– defining under what conditions a person is entitled to maternity/parental leave, including the issue of possible qualifying periods as a condition (and whether there are any requirements in this respect stemming directly from the CFREU); –– what payment (compensations) persons are entitled to during the use of maternity or parental leave; 54 CJEU, 16 July 2015, C-222/14, Maïstrellis, para 39. 55 CJEU, 7 September 2017, C-174/16, H v Land Berlin, para 31. 56 A direct reference to Art 33(1) can also be found in Depesme and Kerrou, C-401/15 and in the Opinion of the AG in C-86/12, Alokpa in Moudoulou, but these two cases do not deal with work–life balance. Several national court judgments refer to Art 33 CFREU. See the list of judgments that refer to this Art on the FRA website: http://fra.europa.eu/en/case-law-database/field_info_­ charter_article%253Asource/13472.

598  Csilla Kollonay Lehoczky and Barbara Kresal –– whether the right to return to the same (or similar) position and protection of employment status and rights stemming from employment are inherent parts of the rights to maternity and to parental leave. b.  The Right to Maternity Leave The CJEU has repeatedly emphasised that the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law and that the fundamental changes to the living conditions of the persons concerned during the period of at least 14 weeks preceding and after childbirth constituted a legitimate ground on which they could suspend their employment, without the public authorities or employers being allowed in whatever way to call the legitimacy of that ground into ­question.57 The beneficiary of the right to maternity leave is the child’s mother. However, there are certain possibilities that also other persons could use maternity leave. The CJEU has already had the opportunity to decide, for example: –– that mother can waive that right, however, only partially; see for e­ xample Boyle and Others,58 where the CJEU decided that workers entitled to maternity leave may waive that right, with the exception of the two weeks’ compulsory maternity leave provided for in Article 8(2) of Directive 92/85;59 –– that a part of maternity leave (exceeding the two weeks’ compulsory maternity leave) can be transferred to and used by the child’s father; in Montull, the CJEU emphasised that differences in treatment as regards the possibility to transfer a part of the leave may not be based on the mother’s (self-) employment status;60 –– that in case of surrogate motherhood, the EU law guarantees the right to maternity leave only to biological mothers (see, for example, in CD v ST61

57 For example in CJEU, 20 September 2007, C‑116/06, Kiiski, para 49; CJEU, 19 September 2013, C-5/12, Montull, para 48 and others. See also CJEU, 1984, C-184/83, Hofmann, para 25; also CJEU, 20 September 2007, C-116/06, Kiiski, para 46; CJEU, 19 September 2013, C-5/12, Montull, para 50; CJEU, 16 June 2016, C-351/14, Rodríguez Sánchez, para 44. 58 CJEU, 27 October 1998, C-411/96, Boyle and Others, para 58. 59 Compare with the ECSR’s approach to this issue: according to ECSR case law, national law may permit women to opt for a shorter period of maternity leave, but in all cases there must be a compulsory period of leave of no less than six weeks, which may not be waived by the woman concerned (Conclusions VIII (1984), Statement of Interpretation on Article 8(1)). However, ‘where compulsory leave is less than six weeks, the rights guaranteed under Article 8 may be realised through the existence of adequate legal safeguards that fully protect the right of employed women to choose freely when to return to work after childbirth – in particular, an adequate level of protection for women having recently given birth who wish to take the full maternity leave period’ (Conclusions 2011, Statement of Interpretation on Article 8(1)). 60 CJEU, 19 September 2013, C-5/12, Montull, para 58. 61 CJEU, 18 March 2014, C-167/12, CD v ST.

Article 33  599 and Z),62 according to the CJEU, EU law does not guarantee the right to maternity leave to the intended (commissioning) mother,63 which is quite a restrictive approach;64 however, EU law guarantees a minimum level of protection and national law may offer a higher level of protection in case of surrogate motherhood and guarantee maternity rights, including maternity leave, to both mothers; –– that Article 33(2) confers the right to parental leave also to adoptive parents in the case of the adoption of a child. c.  The Right to Parental Leave In relation to parental leave, the CJEU has repeatedly emphasised that the objective of the Parental Leave Directive and the Framework Agreement is to offer both men and women an opportunity to reconcile their work responsibilities with family obligations.65 The CJEU has also pointed out that in order to ensure that workers can actually exercise their right to parental leave clause 2.4 of the Framework Agreement requires Member States and/or management and labour to take necessary measures to protect workers against dismissal and that while the Agreement enables new parents to take a break from work to devote themselves to their family responsibilities, it is necessary also to entitle those parents to return, as a rule, to the same job at the end of the leave.66 The importance of the right to return to the (same) job after the expiry of parental leave was repeated in the recent judgment in case H.67 d.  Compensation During Leave Article 33(2) is clear on the point that it guarantees the right to paid maternity leave, whereas the wording of this Article suggests at first sight that the situation 62 CJEU, 18 March 2014, C-363/12, Z v A Government department and The Board of management of a community school. 63 According to the CJEU, Directive 92/85 does not require Member States to provide maternity leave to a female worker who as a commissioning mother has had a baby through a surrogacy arrangement, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby; and furthermore, an employer’s refusal to provide maternity leave or refusal to provide paid leave equivalent to maternity leave to a commissioning mother who has had a baby through such a surrogacy arrangement does not constitute discrimination on grounds of sex, nor in a case in which a women herself is unable to bear a child because she had no uterus and could not support a pregnancy does it constitute discrimination on the ground of disability. 64 See also divergent AGs’ opinions in both cases and critical reactions in the literature to the CJEU’s judgments in these cases. 65 For example, CJEU, 22 October 2009, C-116/08, Meerts, para 35; CJEU, 16 September 2010, C-149/10, Chatzi, para 56; CJEU, 20 June 2013, C-7/12, Riežniece, para 31. 66 See CJEU, 20 June 2013, C-7/12, Riežniece, para 32; also CJEU, 27 February 2014, C-588/12, Lyreco Belgium, para 33. 67 CJEU, 7 September 2017, C-174/16, H v Land Berlin.

600  Csilla Kollonay Lehoczky and Barbara Kresal is different when it comes to parental leave. The CFREU speaks of parental leave without adding the word ‘paid’. However, despite this obvious difference in wording in Article 33(2), this should not hinder the CJEU from interpreting the right to parental leave in a way that renders adequate compensation during this leave an inherent part of the right itself. The CJEU has on many occasions emphasised that aims and goals of the provisions concerned should be taken into account. Such a teleological interpretation, used by the CJEU, would mean that the provision on parental leave should be interpreted and understood in light of the purpose and goals and fundamental values that the provision on parental leave aims to achieve. It seems possible that the proclaimed goals and values – equality between women and men, more balanced sharing of parental responsibilities as well as active participation of both parents in family life and in upbringing and caring for children, and consequently, more equal opportunities for women and men in professional life, the best interests of the child and so on – call for reading in the right to adequate compensation during parental leave into Article 33(2) in order to render the right to parental leave meaningful and effective in practice. The case law of the ECSR as regards adequate compensation during parental leave (see Statement of Interpretation on Article 27(2) in Conclusions 2015)68 could be a reference point in this respect. Arguments used by the CJEU when dealing with the issue of compensation during maternity leave should also be relevant because although they are separate and distinct rights69 there are important parallels between maternity and parental leave. In Rosselle,70 for example, the CJEU again emphasised that maintenance of payments and/or entitlement to an adequate allowance must be ensured during maternity leave because the provisions relating to maternity leave would be ineffective if rights connected with the employment contract were not maintained.71 It is true as regards maternity leave that ‘provision concerning maternity leave would serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate­ allowance’.72 It is also true for parental leave – if taken seriously – that this right would serve no purpose unless accompanied by maintenance of rights linked to employment and/or entitlement to adequate compensation during this leave.

68 See above, under s I.C.ii. 69 The CJEU is very strict in emphasising that EU law makes a distinction between the notion of ‘maternity leave’ and that of ‘parental leave’ and that parental leave is distinct from maternity leave. See, for example, recently in CJEU, 16 June 2016, C-351/14, Rodríguez Sánchez, paras 43–46. 70 CJEU, 21 May 2015, C-65/14, Rosselle, para 45. 71 Such argumentation can be found already in CJEU, 27 October 1998, C‑411/96, Boyle and Others, para 30. 72 Preamble to Directive 92/85.

Article 33  601 Take-up of leave depends substantially on the level of payment/compensation a person is entitled to during it. However, it remains to be seen whether and when the CJEU decides to take steps in this direction. iv.  Rights Connected to Labour Market Re-integration While work–life balance solutions, if they function, help to keep parents and carers in the workplace without disadvantages for the family, such responsibilities may necessitate temporarily leaving the labour market.73 Under Article 27 RESC States have the obligation to take positive measures to assist such workers to re-enter the labour market, promoting their reintegration, among other things by access to vocational guidance, training and retraining. Beyond the encouragement in the Parental Leave Directive targeting employers and workers to promote reintegration by maintaining contacts, the new directive expects the parties to make further arrangements for appropriate reintegration measures ‘taking into account national law, collective agreements and practice’.74 D. Limitations Limitations on the exercise of Article 33 rights as regulated by Article 52(1) have little scope, considering the relative narrowness of express rights laid down in paragraph 2. Rights derived from the principles regulating both paragraphs and from the positive obligations implied by the provisions might be limited by adjoining or bordering provisions. There might be justified exceptions from the prohibition of dismissal during pregnancy under Article 10 Pregnant Workers Directive and Article 8 RESC – objective impossibility and serious misconduct75 – but there cannot be any exception from the prohibition as worded in Article 33(2): dismissal only on the ground of pregnancy is prohibited. Limitation of the right to payment during maternity leave might be subject to a preliminary qualifying period. Under Article 11(4) Pregnant Workers Directive, its length cannot exceed 12 months prior to the presumed date of delivery. Whether this length complies with the proportionality requirement under Article 52(1) CFREU might be questioned. One controversial limitation might concern the length of maternity leave when national norms permit women to waive part of their right to maternity leave. A minimum core of the right that may not be waived are two weeks before



73 For

details see: s II.C.iii above on ‘Maternity and parental leave’. for the new Directive, Preamble, recital 16. 75 See: s II.C. above on 596. 74 Proposal

602  Csilla Kollonay Lehoczky and Barbara Kresal and/or after confinement under the Pregnant Workers Directive.76 However, with regard to the possibility of pressure exercised by the employer, or by the unsatisfactory level of the pay during maternity leave additional guarantees might be advisable.77 The rights deriving through legislative or judicial interpretation of the fundamental principle of equality attached to the idea of work–family reconciliation and/or constituted through laying down positive obligations for actors may have limitations. The concept of ‘family’ might also be subject to limitations, dependent primarily on the context of the case and national regulations.78 E. Enforcement The primary way of enforcement of Article 33 rights that match existing rights under EU law is the individual complaint system: the right to litigate before a judicial body has to be guaranteed. The Pregnant Workers Directive grants enforceable rights; at the same time it is not considered a piece of ‘equality legislation’. Its health and safety nature, and derivation from the Framework Directive (Dir 89/391 EEC) on safety and health, as well as its special nature not even mentioning equality, need special interpretation with regard to the application of the reversed burden of proof in equality litigation. In the recent Ramos case79 on the claim by a breast-feeding mother due to the lack of the adequate assessment of her working conditions, the Court has established this connection, applying Article 19(1) Recast Directive.80 When employment rights are violated by unlawful dismissal connected to pregnancy or maternity, enforcement requires the availability of reinstatement and the lack of a regulatory ceiling for compensation. Judges must not be limited by law in awarding compensation that is commensurate with the loss suffered by the victim and dissuasive enough for the employer. This requirement is a firm principle followed by the ECSR.81 The original strict prohibition of any ceiling was slightly relaxed in 2011 with regard to the differences in

76 Art 8 Pregnant Workers Directive. 77 Guarantees against any influence exerted by the employer; these might include a decent level of maternity pay under the case law of the ECSR. 78 Joined cases C-122/99 P and C-125/99, PD and Kingdom of Sweden v Council of the European Union on household allowance in case of registered partnership. 79 CJEU, 4 October 2017, C‑531/15, Elda Otero Ramos v Servicio Galego de Saúde. 80 Pp 53 and 63 of the case. Interestingly, AG Sharpston referred to Art 33 in his opinion, but this reference was not applied in the judgement. 81 See Conclusions under Art 27(3) RESC: Estonia 2005, Ireland 2007. See more in ch 23 in this volume by Mélanie Schmitt on Art 30.

Article 33  603 national legislation. When there is a ceiling for pecuniary damages, the national system is supposed to make it possible for the victim to seek compensation for non-pecuniary damages through other legal avenues and get compensation for both pecuniary and non-pecuniary damage within a reasonable time.82 Article 33 at the same time implies actions that are based on nonmandatory legal action under European policy measures, not matching mandatory EU provisions. The history and tradition of reference to fundamental principles in EU law confirms the binding power of the Charter provisions with special regard to its stipulations concerning equality. Non-mandatory acts or policy measures by the Union may prompt national legislatures to adopt legal instruments. Although such laws are not literally ‘implementing European law’ their coverage by the ‘constitutionalising’ provisions of the CFREU, as well as by the common undertakings under the RESC – the commitments by the Union – have to be observed.83 Considering the limited EU competence in the subject matter,84 techniques of the open method of coordination (OMC) can be utilised in promoting the accomplishment of work–family balance. Similarly, the Communication called attention, besides continued monitoring of the transposition of EU legislation and launching infringement procedures when necessary, to soft methods (financial incentives, expert assessment, sharing best practices) for the better implementation of legislation, also making specific study of the enforcement of protection against dismissal and unfavourable treatment in the Member States.85 III. CONCLUSIONS

The new vocabulary used in the Union documents indicates multiple changes. Balance means equal weight or equality, while reconciliation means assisted or compensated imbalance. That is, finding a solution at the cost of either work or the family, assistance in giving up one’s profession, even if partially or temporarily, although it helps people to avoid total exclusion, disadvantages men as regards the family and women as regards their profession, while in the long run it also disadvantages family and society. The recent Communication and Proposal for a new directive on work–life balance emphasised, at least at the declarative level, the importance of men and women taking an equal share in childcare and other family work, not only with regard to the interests of women,



82 ECSR,

Statement of Interpretation, Conclusions 2011 (XIX-4), p 6. (n 1) 896. 84 Art 153 (1) TFEU. 85 Communication (n 8) 2 (Priority areas for Action, 2.1). 83 Costello

604  Csilla Kollonay Lehoczky and Barbara Kresal but also for the interests of men and children, underlining its significance for their life satisfaction and physical and mental health.86 Reconciliation in the form of diminishing work activities should be made not only more gender-balanced (equalised) but also more widely used in an age of rising speed of new information and knowledge. Further technical, economic and social developments – with special regard to changes in the world of work (numerous ‘new’, non-standard and precarious forms of work, digitalisation and acceleration) – not only necessitate but also facilitate a new framework for work–life balance. As a third element of the growing interconnection between work and private life, learning (lifelong learning) has shifted from a ‘private interest activity’ to one that is at least in part in the employer’s interest and the public interest, requiring the proper sharing of its burdens between private and working life, and reasonable public support for both sides of the employment relationship. Another challenge is to provide for safety under conditions of increased fluctuation between employment and periods of interruption in employment due to studying, family caring, unemployment or independent entrepreneurship. Previous proposals aimed at addressing problems as they emerged might suggest novel ideas today for a new approach to work–family balance.87 The multiple challenges and lack of progress call for more active and innovative approaches at the EU and national levels, from both legislators and social partners.88 The role of the social partners – mentioned already by the Recast Directive (Article 22) with special regard to working conditions – cannot be overestimated. The Parental Leave Directive, an encouraging example of a European level agreement, despite the limitations in its background and bargaining in the ‘shadow of the law’89 may suggest further projection and creativity with regard to supranational collective agreements. Although preliminary consultations on the new Directive are not particularly promising as regards its inclusion in a framework collective agreement,90 the role of the social partners in­

86 ibid, s 2.1, with reference to Maria del Carmen Huerta et al, Fathers’ Leave, Fathers’ Involvement and Child Development: Are They Related? Evidence from Four OECD Countries (OECD, 2016). 87 Such as the 2000 Supiot report, a study project sponsored by the EU Commission, with the participation of a group of labour experts lead by Alain Supiot. The results are presented in A Supiot, Beyond Employment Changes in Work and the Future of Labour Law in Europe (Oxford, Oxford University Press, 2001). 88 For more on the role of the social partners in this area see B Kresal, ‘Work-Life Balance in Collective Agreements’ in S Laulom (ed), Collective Bargaining Developments in Times of Crisis (Alphen aan den Rijn, Kluwer, 2018) 213–30. 89 B Bercusson, ‘Maastricht: a fundamental change in European labour law’ (1992) 23 Industrial Relations Journal 177. 90 Proposal for the Directive: 3. Results of ex-post evaluations, stakeholder consultations, and impact assessments.

Article 33  605 implementation and improvement can ensure results, with the adequate involvement of the Member States. The inclusion of Article 33 in the CFREU means that family–professional (work–life) balance has been explicitly framed as a fundamental rights issue within the EU legal order. The fundamental rights perspective on work–family balance should therefore be enriched and reinforced by combining this provision with other Charter provisions, as well as by dynamic interpretation and by developing further the substantive content of Article 33, also by reference to sources (and their interpretations by competent bodies) which served as the basis and are explicitly mentioned in the Explanations to Article 33.

606

Title VI – Justice

608

27 Article 47 – Right to an Effective Remedy and to a Fair Trial KLAUS LÖRCHER

Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

EXPLANATIONS The first paragraph is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Union law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined that right in its judgment of 15 May 1986 as a general principle of Union law (Case 222/84 ­ Johnston [1986] ECR 1651; see also judgment of 15 O ­ ctober 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313). According to the Court, that general principle of Union law also applies to the Member States when they are implementing Union law. The inclusion of this precedent in the Charter has not been intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the Court of Justice of the European Union. The European Convention has considered the Union’s system of judicial review including the rules on admissibility, and confirmed them while amending them as to certain aspects, as reflected in ­Articles 251 to 281 of the Treaty on the Functioning of the

610  Klaus Lörcher European Union, and in particular in the fourth paragraph of Article 263. Article 47 applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law. The second paragraph corresponds to Article 6(1) of the ECHR which reads as follows: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. In Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law as stated by the Court in Case 294/83, ‘Les Verts’ v European Parliament (judgment of 23 April 1986, [1986] ECR 1339). Nevertheless, in all respects other than their scope, the guarantees afforded by the ECHR apply in a similar way to the Union. With regard to the third paragraph, it should be noted that in accordance with the case law of the European Court of Human Rights, provision should be made for legal aid where the absence of such aid would make it impossible to ensure an effective remedy (ECHR judgment of 9 October 1979, Airey, Series A, Volume 32, p. 11). There is also a system of legal assistance for cases before the Court of Justice of the European Union.

I. INTRODUCTION

A.  Context and Main Content Procedural rights are often seen as ‘second class’ as against ‘first class’ substantive rights. However, without a procedure for making substantive rights effective, the latter will be merely theoretical or illusionary. It is in this vein that in the long history of procedural rights developments in particular since the Second World War have become increasingly important. The best example might be the ­European Convention on Human Rights (ECHR), with the fundamental procedural rights enshrined in it, but especially with the case law of the European Court of Human Rights (ECtHR).1 Increasingly, the EU is faced with

1 See for the access to justice in relation to Art 47: Fundamental Rights Agency (FRA), Council of Europe and European Court of Human Rights (eds), ‘Handbook on European law relating to access to justice’, Luxemburg, Publication Office of the EU, June 2016.

Article 47  611 procedural rights in particular in its administrative law but also as legislator in nearly all policy areas.2 Procedural rights are even more important for workers. If not properly applied they can easily hinder effective access to court (eg legal aid, legal assistance) and continue the predominance of employers in the procedure (eg burden of proof) or at the end of the procedure (eg enforcement of judgments). Against this background (apart from Article 51, which determines whether the Charter applies in the first place) Article 47 can be considered to be ‘perhaps the most important provision of the Charter’3 by including the substance of the two main procedural rights: the rights to an effective remedy and to a fair trial. B.  Relationship to Other Provisions of the Charter Because of their transversal nature these rights are, most obviously, directly related to all substantive rights enshrined in the Charter. But it should be noted that Article 47 is part of the Title VI ‘Justice’. Because the further rights included therein are related mainly to criminal procedural law they will therefore not be dealt with in this chapter. However, Article 48(1) (Presumption of innocence) may have a specific impact insofar as a judicial ­decision or, indeed, a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proved under the law. It suffices, in the absence of a formal finding, that there be some reasoning suggesting that the court or the official in question regards the accused as guilty, and a premature expression of such an opinion by the tribunal itself will inevitably run foul of the said principle.4 This can have an impact on dismissals based on such grounds.5 This Title VI is preceded by ‘Citizens’ rights’ in Title V of the Charter, containing four provisions that might be of relevance for workers at EU level. The first deals with the right to good administration (Article 41). This provision is particularly relevant for all cases dealing with EU administrative law6 as,

2 See, for example, Open Society Foundations (ed), From Rights to Remedies – Structures and Strategies for Implementing International Human Rights Decisions (New York, Open Society Foundations, 2013). 3 P Aalto, H Hofmann, L Holopainen, E Paunio, L Pech, D Sayers, D Shelton and A Ward, ‘­Article 47 – Right to an Effective Remedy and to a Fair Trial’, in S Peers, T Hervey, J Kenner and A Ward (eds), The EU Charter of Fundamental Rights – A Commentary (Oxford, Hart Publishing, 2014) para 47.42. 4 ECtHR, 8 February 2018, No 33566/11, Ramkovski v ‘The Former Yugoslav Republic of ­Macedonia’, para 81. 5 See S Van Drooghenbroek, ‘Labour Law Litigation and Fair Trial under Article 6 ECHR’ in F Dorssemont, K Lörcher and I Schömann (eds), The European Convention on Human Rights and the Employment Relation (Oxford, Hart Publishing, 2013) 181f. 6 For further impact of Art 41 in relation to Art 47, see Aalto et al (n 3) para 47.04.

612  Klaus Lörcher for example, for EU civil servants,7 for public procurement cases or for acts by the (future) European Labour Authority.8 It is followed by the right of access to documents (Article 42) and the right to appeal to the European Ombudsman (Article 43)9 and, finally, by the right to petition (Article 44). However, thirdcountry nationals are excluded from the enjoyment of these rights, with the exception of Article 41, which is open to ‘every person’. C.  Relationship to Other Relevant Instruments i.  EU Instruments As judicial procedures are easily considered to be national prerogatives it is important to look in more detail at the EU provisions that govern the right to an effective remedy and the right to a fair trial. Although there is no overarching EU legal framework two areas can be separated in this respect. a.  Cross-border Issues In EU primary law access to justice forms an important part of the ‘Area of Freedom, Security and Justice’, in particular in relation to (cooperation in) civil matters. The relevant Articles 67(4)10 and 81 TFEU served as foundation for Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters,11 which specifically also deal with individual contracts of employment (Articles 20–23).12

7 See, for example, GC, 13 December 2017, T‑703/16 RENV (CJ), para 44 for the right to be heard. 8 Proposal for a Regulation establishing a European Labour Authority, 13 March 2018, COM(2018) 131 final. 9 For his relevance in relation to social rights there are different examples. On one hand, he did not, after an ETUC complaint about the Commission’s lack of action after the EP’s report calling for legal action on the restructuring and anticipation of change, open an inquiry because he did not see an infringement of the consultation rights of the ETUC and he denied having competence in the legislative sphere. On the other hand he was of the opinion that the system of unpaid trainees in EU foreign delegations should end (https://www.ombudsman.europa.eu/en/press/release.faces/ en/76116/html.bookmark). See also ch 8 on ‘Procedures’ in this publication. 10 ‘The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.’ 11 OJ L 351, 20 December 2012, pp 1–32. 12 In relation to the (previous) Regulation (EC) No 44/2001 (the ‘Brussels-I Regulation’) ECtHR (GC), 23 May 2016, No 17502/07, Avotiņš v Latvia held that there had been no violation of ­Article 6(1) ECHR, confirming, on one hand, that the Contracting States remained bound by the obligations they had entered into on acceding to the ECHR. Those obligations were, however, to be assessed in light of the presumption of equivalent protection (established by the ECtHR in the Bosphorus judgment and developed in the Michaud judgment), which was not rebutted, as fundamental rights were sufficiently protected.

Article 47  613 b.  Labour Law Besides these cross-border issues an important number of EU Directives on labour law require procedural measures by Member States for the defence of the respective rights, albeit to different degrees. For example, for either ­‘judicial and/or administrative procedures’, ‘Member States shall ensure that ­judicial and/or administrative procedures for the enforcement of obligations under this ­Directive are available to the workers’ representatives and/or ­workers.’13 With regard to ‘adequate procedures’, Member States shall take appropriate measures in the event of failure to comply with this Directive. They shall in particular ensure that adequate procedures are available to workers and/or their representatives for the enforcement of obligations under this Directive.14

With regard to ‘administrative or judicial procedures’, Member States shall provide for appropriate measures in the event of non-compliance with this Directive by the employer or the employees’ representatives. In particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Directive to be enforced.15

While with regard to even more demanding ‘judicial process’: Member States shall introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process after possible recourse to other competent authorities.16

But, according to the CJEU, even if a Directive does not contain a provision on judicial remedies available to the worker, in the case of a dispute with his employer, to enforce his right under a directive it is not disputed that the Member States must, in such a context, ensure compliance with the right to an effective remedy, as enshrined in Article 47.17

13 Art 6 Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies, OJ L 225, 12 August 1998, p 16. 14 Art 5 Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services, OJ L 18, 21 January 1997, pp 1–6. 15 Art 8(1) Directive 2002/14/EC of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23 March 2002, pp 29–34. 16 Art 8(1) Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, OJ L 288, 18 October 1991, pp 32–35. 17 Here for the right to paid annual leave under Art 7 Directive 2003/88/EC, CJEU, 29 November 2017, C‑214/16, King, para 41.

614  Klaus Lörcher Another aspect of enforcement is the requirement of sanctions which is to be found in the anti-discrimination Directives,18 as well as in the Written Statement Directive 93/533/EC: Member States shall provide for adequate sanctions to be applicable in the event of infringement of this Directive by the employer or the employees’ representatives. These sanctions must be effective, proportionate and dissuasive.19

ii.  Council of Europe Instruments The Explanations refer to the main sources coming from the ECHR: Articles 6 and 13. In particular on Article 6 ECHR there is abundant case law of the ECtHR.20 Whereas the European Social Charter (ESC) does not explicitly deal with judicial remedies and procedures the case law of the European Committee of Social Rights (ECSR) includes such requirements. As early as 1998 the ECSR found that ‘the protection against discrimination in employment afforded by the Charter means that there should be effective access to court’.21 But there are also several Recommendations by the Committee of Ministers addressed to Member States that provide guidance for specific issues, such as Recommendation No (84)15 relating to public liability,22 Recommendation CM/Rec(2010)3 on effective remedies for excessive length of proceedings23 and the Recommendation CM/Rec(2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights.24 Specifically, Recommendation CM/Rec(2010)12 on the independence, efficiency and responsibilities of judges addresses also aspects like remuneration in its relation to the independence of judges.25 In a more analytical approach, the efficiency and quality of justice systems, and the independence of the

18 See ‘penalties’ according to Art 25 Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26 July 2006, pp 23–36, or ‘sanctions’ according to Art 15 Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19 July 2000, pp 22–26, and Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2 December 2000, pp 16–22. 19 Art 8(2) Directive 2002/14/EC of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community, OJ L 80, 23 March 2002, pp 29–34. 20 Van Drooghenbroek (n 5) 159–82; see also ECtHR (ed), Guide on Article 6 of the European Convention on Human Rights – Right to a fair trial (civil limb), Updated to 31 December 2017, https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf (hereinafter the ‘Guide’). 21 Conclusions XIV-1 – United Kingdom – Article 1(2). 22 See D Shelton, ‘C. Sources of Article 47 Rights’, in Peers et al (eds) (n 3) para 47.18. 23 https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805cf8e9 24 https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805ae618 25 Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities of 17.11.2010, paras 53–55.

Article 47  615 j­ udiciary is regularly assessed through data from CEPEJ, a Council of Europe expert body.26 iii.  ILO Instruments In its standard-setting activities, the International Labour Organization (ILO) has not yet explicitly dealt with the rights enshrined in Article 47. But the competent bodies entrusted with examining the compatibility with specific (ratified) Conventions addressed these issues in their reports. As an example of this case law one might refer to a document prepared by the ILO in relation to the AntiDiscrimination Convention No 111 and designated to the Committee of the Elimination of Discrimination against Women (CEDAW) summarising the findings mainly of the Committee of Experts on the Application of Conventions and Recommendations (CEACR)27 on issues such as remedies and sanctions, burden of proof, protection against reprisals and standing, as well as resource aspects (financial/material/human resources [composition, competencies, ­stability, independence and training]). As non-judicial enforcement mechanism labour inspection can play an important role. The minimum requirements can be found in ILO Convention No 81 which has been ratified by all EU Member States.28 Grievance Procedures might also contribute to a better enforcement.29 iv.  UN Instruments In a general manner Article 8 Universal Declaration of Human Rights (UDHR) provides that ‘[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’.30 Whereas only the International Covenant on Civil and Political Rights (ICCPR) in its Article 2(3)(a) provides for the necessity of an ‘effective remedy’31 the International Covenant on Economic, Social 26 Council of Europe European Commission for the efficiency of justice (https://www.coe.int/en/ web/cepej). Its findings serve as data basis also for the so-called EU Justice Scoreboard., and forms part of the European Commission’s Annual Growth Survey; the latter informs the deliberations of the EU’s annual policy cycle – the European Semester – which has a significant impact on national finances within the EU, see FRA/ECtHR, Handbook (n 1) 16 f. 27 ILO, Comments for the General Discussion on the Proposed General Recommendation on Access to Justice by the CEDAW, Geneva, February 2013, http://www.ohchr.org/documents/ HRBodies/CEDAW/AccesstoJustice/ILO.pdf. 28 See also the Protocol of 1995 to the Labour Inspection Convention, 1947, extending the scope of application to activities in the non-commercial services sector, and for all relevant ILO instruments in this area: ILO (ed), General Survey, International Labour Conference, 95th Session, 2006 Report III (Part 1B), Geneva 2006. 29 See Examination of Grievances Recommendation, 1967 (No 130) which also refers ultimately to the possibility for ‘recourse to a labour court or other judicial authority’ in para 17(c). 30 For further UN instruments see Shelton (n 22) para 47.21 ff (emphasis added). 31 It appears important to note also the obligation to ‘enforce’ such remedies when granted (Art 2(3)(c) ICCPR).

616  Klaus Lörcher and Cultural Rights (ICESCR) does not contain explicit provisions to this effect. Nevertheless, the two bodies competent to deal with the implementation of these standards have considered procedural elements as being part of substantive provisions.32 In particular, the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No 23 on the right to just and favourable conditions of work (Article 7 ICESCR) required that, ‘[i]n addition to legislation as an indispensable step, States should also ensure the provision of judicial and other effective remedies that include, but are not limited to, administrative, financial, educational and social measures’.33 Specific thematic instruments contain either express provisions on ‘access to justice’ like Article 13 Convention on the Rights of Persons with Disabilities (CRPD) or at least obligations stemming from various articles like in the CEDAW.34 II. CONTENT

A.  General Observations Against the background of the ECHR there was no general objection to including procedural rights guaranteeing effective enforcement of fundamental rights. However, all attempts to include also direct access to the European Courts in case of an alleged violation of fundamental rights were rejected, as the EU judicial system is not supposed to be changed. The importance of this right – which is of direct effect – cannot be underestimated. This is illustrated by the very high number of cases the CJEU has had and still has to deal with directly related to Article 47. In particular in relation to the principle of equivalence in non-discrimination cases the CJEU has used an evaluative comparison of the relevant procedural rules in order to assess whether there was compliance with Article 47. Whereas it found in the Bulicke case35 that limitation period clauses contained in collective agreements were, in principle, acceptable, it saw differences in relation to the exhaustion of domestic

32 As an example, the Human Rights Committee (CCPR) ‘recalls that it is generally up to the courts of a State party to evaluate the facts and evidence in a particular case, unless it can be ascertained that such evaluation was clearly arbitrary or amounted to a denial of justice, or that the court otherwise violated its obligation of independence and impartiality’. Views adopted by the Committee at its 108th session (8–26 July 2013), No 1948/2010, Turchenyak et al v Belarus (CCPR/C/108/D/1948/2010), para 6.4. 33 General comment No 23 (2016) 27 April 2016 E/C.12/GC/23. See also (more generally but at the same time more cautiously) General Comment No 3 (1991) The nature of States Parties’ obligations (Art 2(1), para 5 (‘Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies’). 34 See the General recommendation No 33 on women’s access to justice, 3.8.2015 (CEDAW/C/ GC/33), in particular paras 7 and 11 concerning the relevant provisions in the CEDAW. 35 CJEU, 8 July 2010, C-246/09, Bulicke.

Article 47  617 remedies (in the Transportes Urbanos case)36 and very short time limits (in the Pontin case)37 as problematic in relation to the principle of equivalence.38 This right is not limited to ‘workers’ but covers ‘everyone’ (with the limitation in paragraph 3 to ‘those who lack sufficient resources’). This wide personal scope is all the more important as it opens up judicial procedures for persons who claim to be workers but are denied this qualification by eg their employers. In any event, the right to an effective remedy and to fair trial (judicial protection) is considered by the CJEU not only as a ‘general principle of EU law’ but in its most recent judgment in the Egenberger case it stated that Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such … Consequently, … the national court would be required to ensure within its jurisdiction the judicial protection for individuals flowing from Article … 47 of the Charter, and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.39

thus providing it also with horizontal effect in disputes between individuals, ie workers and employers. B.  Field of Application According to Article 51(1) this right is ‘addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’. Concerning Member States the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter.40 In the words of A Ward, ‘once there is a sufficient link to EU law for the Charter to apply at all, in accordance with the case law on Article 51, an effective remedy and a fair trial (as further defined in Art[icle] 47) has to be ensured’.41 Accordingly, it has to be examined to what extent EU law exists or at least to what extent there is a link to it.42 Accordingly, Article 47 is directly applicable insofar as the implementation of the rights arising under a Directive is at issue.43 36 CJEU, 26 January 2010, C-118/08, Transportes Urbanos y Servicios Generales. 37 CJEU, 29 October 2009, C-63/08, Pontin. 38 See, for more details, E Paunio, ‘IV. Effective Remedies before Member State Courts and the Principle of Non-Discrimination’ in Peers et al (eds) (n 3), in particular paras 47.101–104. 39 CJEU (GC), 17 April 2018, C‑414/16, Egenberger, para 79. 40 CJEU (GC), 26 February 2013, C‑617/10, Åkerberg Fransson, para 21; see, for more details, ch 6 on Limitations in this publication. 41 Aalto et al (n 3) para 47.01; see also paras 47.44–46. 42 F Krenc, ‘ARTICLE 47 – Droit à un recours effectif et à accéder à un tribunal impartial’ in J Picod and S Van Drooghenbroek (eds), La Charte des droits fondamenteaux de l’Union européene (Bruxelles, Bruylant, 2018) para 4. 43 CJEU AG, 6 December 2017, C‑472/16, Jorge Luís Colino Sigüenza, para 101.

618  Klaus Lörcher As described above, there are several elements of EU law that open up the applicability of Article 47. In particular, this provision applies to the labour law directives referring explicitly to access and/or effectiveness of judicial procedures (section I.C.i.b). However, in practice the CJEU has shown a more negative approach in relation to the scope of EU law, at least as far as social policy is concerned. As an example, one might refer to the Torralbo Marcos judgment,44 in which the Court had denied any EU law relevance for the Insolvency Directive 2008/94/EC as long as it is not clear that insolvency proceedings have started.45 Moreover, when asked to answer preliminary questions in relation to Article 47 and social policy cases the CJEU found it unnecessary to answer them46 or answered them without referring (explicitly) to Article 47.47 If Article 47 was referred to in the reasoning it was at best used as a supplementary argument.48 Conversely, the CJEU could and, indeed, should follow the opposite (­positive) approach. First, according to its own case law the Court has the power

44 CJEU, 27 March 2014, C-265/13, Torralbo Marcos. 45 ibid paras 36 ff. 46 See eg CJEU, 26 November 2014, C-22/13, Mascolo, para 121 (‘Accordingly, there is no need to answer the other questions asked by the Tribunale di Napoli in Cases C‑22/13, C‑61/13 and C‑62/13.’). See in the same vein CJEU, 12 December 2013, C-361/12, Carratù, para 49 (in relation to the third and sixth questions having inter alia asked about the relevance of Art 47 the CJEU replied: ‘In view of the answers given to the fourth and fifth questions, it is unnecessary to answer the first, second, third, and sixth questions’) and CJEU, 6 September 2011, C-108/10, Scattolon, para 84 (in relation to the last (fourth) question having ia asked about the relevance of Art 47 the CJEU replied: ‘Having regard to the answer to the second and third questions, there is no longer any need to examine whether the national legislation at issue, such as applied to the applicant in the main proceedings, infringes the principles mentioned by the national court in its fourth question. Therefore, there is no need to answer that last question.’) 47 Whereas Question 6 explicitly asked about Art 47 (‘Does the EU-law principle of effectiveness under the first paragraph of Article 47 of the Charter …’) the Court referred only to the ‘principle of effectiveness’ (‘Having regard to the foregoing, the answer to Question 6 is that the principle of effectiveness must be interpreted as meaning that, in a case such as that at issue in the main proceedings, it does not preclude a national limitation period for claims which are founded in EU law from starting to run before the date of delivery of a judgment of the Court which has clarified the legal position on the matter’, CJEU, 28 January 2015, C-417/13, Starjakob, para 69. 48 See eg CJEU, 22 December 2010, C-444/09, Gavieiro Gavieiro, para 75 (‘As the principle of effective legal protection is a general principle of EU law recognised, moreover, in Article 47 of the Charter of Fundamental Rights of the European Union, it is the responsibility of the national courts, in the absence of a measure correctly transposing Directive 1999/70 into Spanish law during the period concerned, to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective…’) or CJEU, 14 October 2010, C-243/09, Fuß, para 66 (‘In addition, as the Commission correctly pointed out, the fundamental right to effective judicial protection, guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union, which, according to the first subparagraph of Article 6(1) EU, has “the same legal value as the Treaties”, would be substantially affected if an employer, in reaction to a complaint or to legal proceedings brought by an employee with a view to ensuring compliance with the provisions of a directive intended to protect his safety and health, were entitled to adopt a measure such as that at issue in the main proceedings. Fear of such a reprisal measure, where no legal remedy is available against it, might deter workers who considered themselves the victims of a measure taken by their employer from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the directive (see, by analogy, Case C‑185/97, Coote [1998] ECR I‑5199, paragraphs 24 and 27.’).

Article 47  619 to provide national courts with all elements of EU law it believes are relevant and helpful.49 Second, and even more important: as an EU institution the CJEU (Article 13(1), 5th indent TEU) is also bound by the Charter, which obliges it to ‘respect the rights, observe the principles and promote the application thereof’. Therefore, the Court has not only to respect the rights and observe the principle, but also to promote their application. Thus, it is obliged to use all its powers to provide Article 47 with the relevance it deserves, in particular in the employment context. C.  Specific Rights This Article covers practically all procedural questions that arise in relation to judicial proceedings. The following overview of specific rights is aimed specifically at the employment context. Indeed, any disputes arising in this context can be characterised by a significant asymmetry as regards the situation of the parties or by the very specific vulnerability of one of them, particularly in relation to, for example, dismissal, or financial compensation for an accident. Particular attention has to be attributed to the case law of the ECtHR (Recital 5 and Article 52(3) CFREU). It is clearly not insensitive to these vulnerabilities, and the rules and standards of fair trial that it shapes therefore present the practical flexibility that allows them to consider such situations on a case-by-case basis.50 i.  Right to Effective Remedy (Paragraph 1) According to the Explanations, the right to effective remedy is based on­ Article 13 ECHR. In the words of the ECtHR this right guarantees the availability at national level of a remedy by which to complain of a breach of the Convention rights and freedoms … there must be a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief … the remedy must in any event be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State.51

This statement applies mutatis mutandis to EU law in general and the Charter’s provisions in particular. But – according to the Explanations – paragraph 1 also goes beyond the scope of Article 13 ECHR insofar as they state that 49 See eg CJEU, 26 November 2014, C-22/13, Mascolo, para 83 (‘However, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its assessment (see, inter alia, judgment in Fiamingo and Others, EU:C:2014:2044, paragraph 68 and the case-law cited).’) 50 Van Drooghenbroek (n 5) 180. 51 ECtHR (GC), 23 February 2017, No 43395/09, De Tommaso v Italy, para 179; see also ECtHR (GC), 8 July 1999, No 23657/94, Çakici v Turkey, para 112.

620  Klaus Lörcher ‘the protection is more extensive since it guarantees the right to an effective remedy before a court’. The CJEU appears to draw a general conclusion from this paragraph in relation to Article 47 overall: the principle of effectiveness in relation to judicial procedures insofar as the ‘principle of effective legal protection is a general principle of EU law’.52 More recently, the CJEU has expressed the basic foundations in the Associação Sindical dos Juízes Portugueses case: The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter…53

Thus, the right to an effective judicial remedy can even be invoked in (at least extreme) cases against prescription rules.54 It is not limited to disputes between individuals and Member States or EU institutions and bodies. It is also applicable in view of the protection of rights arising from EU law in ‘horizontal’ disputes between individuals, leading to an indirect horizontal effect.55 Moreover, it is submitted that, in its proper construction, Article 47 encapsulates a remedy in damages. In fact, it is inherent in the dual system of public liability in EU law, namely: –– the liability of the EU and its institutions to pay damages for breaches of EU law (EU liability), which was established as far back as the Treaty of Rome and is currently re-stated in Article 340(2) TFEU56 and –– the liability of the Member States to pay damages for breaches of EU law (Member State liability), which has been established in Court of Justice case law since 1991.57 ii.  Right to a Fair Trial (Paragraph 2) According to the Explanations, ‘the right to a fair hearing is not confined to disputes relating to civil law rights and obligations’. It is for this reason that all 52 CJEU, 22 December 2010, C-444/09, Gavieiro Gavieiro, para 75. 53 CJEU, 27 February 2018, C‑64/16, Associação Sindical dos Juízes Portugueses, para 35. 54 An illustrative example is a case in which a worker suffering from asbestos-related diseases was unable to assert his rights owing to the rules on limitation periods, ECtHR, 11 March 2014, No 52067/10, Howald Moor and Others v Switzerland. 55 H Hofmann, ‘D. III. Specific Provisions (Meaning)’ in Aalto et al (n 3) paras 47.72 ff. 56 See, as an important example, the recognition of the Commission concerning its duties under the Charter in relation to the Memorandum of Understanding of 26 April 2013 on Specific Economic Policy Conditionality concluded between the Republic of Cyprus and the European Stability Mechanism (ESM), CJEU (GC), 20 September 2016, C‑8/15 P to C‑10/15 P, Ledra Advertising, paras 55 ff. 57 P Aalto, ‘V. Damages for Breach of the Charter’ in Aalto et al (n 3) paras 47.116 ff. (with reference to the Francovich, Brasserie du Pêcheur and Factortame and Bergaderm judgments).

Article 47  621 (sometimes difficult) developments in the ECtHR’s case law concern the assessment of under what conditions disputes are related to ‘civil rights’.58 Generally, the ECtHR has emphasised the prominent place held in a democratic society by the right to a fair trial59 and stated that this guarantee is one of the fundamental principles of any democratic society, within the meaning of the Convention. There can therefore be no justification for interpreting Article 6(1) ECHR restrictively. The requirement of fairness applies to proceedings in their entirety; it is not confined to hearings inter partes.60 There are several specific rights that are of particular relevance in the employment relation. a.  Right to an Independent and Impartial Judicial Body Most recently, the CJEU strengthened the right of access to an independent court in a labour dispute concerning a person who was the subject of a difference of treatment on grounds of religion in connection with access to employment. Indeed, in the Egenberger case it found that Article 47 lays down the right of individuals to effective judicial protection of their rights under EU law and concluded that any balancing exercise between competing fundamental rights needed review by an independent authority, and ultimately by a national court.61 1.  Principle of Independence It is recognised that the efficiency of judicial remedies very much depends on the effective guarantee of independence of judges. Recently, the CJEU had the opportunity to look in more detail at the elements constituting this principle, including their remuneration: The concept of independence presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions … Like the protection against removal from office of the members of the body concerned … the receipt by those members of a level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence.62

58 For more details concerning its case law see ECtHR, Guide (n 20) paras 21, 29 ff. 59 ECtHR (GC), 9 October 1979, No 6289/73, Airey v Ireland, para 24; the Explanations explicitly refer to this judgment. 60 ECtHR, Guide (n 20) para 220. 61 CJEU (GC) 17.4.2018 – C‑414/16, Egenberger, paras 49 and 53 (paras 47 to 49 have been referred to and thus confirmed in CJEU (GC), 11 September 2018, C‑68/17, IR, para 45. 62 CJEU, 27 February 2018, C‑64/16, Associação Sindical dos Juízes Portugueses, paras 44 and 45.

622  Klaus Lörcher 2.  Right for Lay Judges to Sit in Labour Courts A specific issue when dealing with judicial procedures in labour law can be the involvement of lay judges coming from the employers’ and the workers’ sides. Some Member States of the Council of Europe have a long tradition of such a collaborative court model, with lay adjudicators (coming from the employers’ and workers’ sides) sitting and deliberating alongside professional judges in labour law litigation, as in Belgium, France and Germany. Such an approach is not contrary to the ECtHR’s case law. On the contrary, the idea of collegial impartiality ‘by balance of interests’ has been accepted many times, also in the field of labour.63 In a judgment AB Kurt Kellermann,64 the Court decided that Lay assessors sitting on the Labour Court, who take the judicial oath, have special knowledge and experience of the labour market. They therefore contribute to the court’s understanding of issues relating to the labour market and appear in principle to be highly qualified to participate in the adjudication of labour disputes. It should also be noted that the inclusion of lay assessors as members of various specialised courts is a common feature in many countries.65

b.  Right of Access to Court 1.  Right of Access to Court According to the ECtHR’s case law the right of access to a court must be ‘practical and effective’. For the right of access to be effective, an individual must ‘have a clear, practical opportunity to challenge an act that is an interference with his rights’.66 As an example, one might refer to an applicant who wished to acquire shares in the State company for which she was working at the time, which was to be privatised. Together with other employees of the company, she brought court proceedings contesting the legality of the Government decree concerning the privatisation, which stipulated that the shares were to be sold to a certain third party. The ECtHR found a violation of Article 6(1) ECHR as she had been deprived of the right to challenge the legality of the decree before the competent courts, as they had refused to examine the claim on the merit.67 On the other hand, one might take a case that concerned the compensation claim brought by the applicant, a pastor, following his dismissal by the Hungarian Reformed Church. In view of the overall legal framework in Hungary, the ECtHR found that the applicant thus had no ‘right’ which could be said, at least on arguable

63 See for more details, Van Drooghenbroek (n 5) 180 ff. 64 ECtHR, 26 October 2004, No 41579/98, AB Kurt Kellermann v Sweden, para 60; see for more details Van Drooghenbroek (n 5) 174 ff. 65 See also ECtHR, 21 June 2009, No 34197/02, Luka v Romania, paras 41–42, and already 22 June 1989, No 11179/84, Langborger v Sweden, paras 34–35. 66 ECtHR, Guide (n 20) para 75. 67 ECtHR, 19 February 2013, No 9737/06, Melikyan v Armenia.

Article 47  623 grounds, to be recognised under domestic law. Article 6 (right of access to a court) was therefore not applicable in the present case.68 However, this (in any event, very much criticised)69 judgment cannot any more be considered as of (negative) impact in the EU Member States. Indeed, the CJEU has thus taken a different view as the ECtHR (see above section II.C.ii.a.1). Nevertheless, this contradiction does not create a problem under the CFREU because the second sentence of Article 52(3) provides that ‘[t]his provision shall not prevent Union law providing more extensive protection’. Moreover, it should nevertheless be noted that the ECtHR is aware of the necessity for procedural rights being recognised in order to make the enjoyment of substantive rights effective. Indeed, it found a violation of Article 11 ECHR in a case in which a trade union (of military personnel) was denied the locus standi right.70 2.  Right to Know Reasons for the Alleged Measure For the ECtHR, a legal constellation in which it was impossible to contest a civil servant’s dismissal without explanation in court amounted to depriving the impugned right of action of all substance. Indeed, it was ‘inconceivable for the applicant to have brought a meaningful action, for want of any known position of the respondent employer’. It concluded that such a limited review could not be considered to be an effective judicial review under Article 6(1) ECHR.71 Therefore it found a violation of the applicant’s right of access to a court.72 3.  Right to Legal Costs Not Hindering Access to Court Article 47 also has a financial dimension. Although related to environmental matters the CJEU linked the requirement that the cost should be ‘not prohibitively expensive’ to the observance of the right to an effective remedy enshrined in Article 47, while at the same time connecting it also to ‘the principle of effectiveness, in accordance with which detailed procedural rules governing actions for safeguarding an individual’s rights under European Union law must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law’.73 This approach has to correspond with the requirements developed by the ECtHR in relation to Article 6 ECHR. Whereas it accepts, since the

68 ECtHR (GC), 14/09/2017, No 56665/09, Károly Nagy v Hungary. This judgment was adopted only with a 10:7 majority. 69 Already several dissenting judges (out of the 10:7 minority) criticised this very restrictive approach severely (‘Such an understanding of the case-law not only encourages domestic arbitrariness, but may also deprive many people who enter into ecclesiastical service of the protection of due process.’). 70 ECtHR, 2 October 2014, No 32191/09, ADEFDROMIL v France, paras 56–58. 71 For the relationship to Art 30 see the respective ch 23 in this publication. 72 ECtHR, 10 July 2012, No 19554/11, KMC v Hungary, paras 34 f. 73 CJEU, 11 April 2013, C‑260/11, Edwards, para 33.

624  Klaus Lörcher Kreuz  ­judgment, ‘that the interests of the fair administration of justice may justify imposing a financial restriction on the individual’s access to a court’, and that ‘neither an unqualified right to obtain free legal aid from the State in a civil dispute, nor a right to free proceedings in civil matters can be inferred from that provision’74 the fact remains that, in special circumstances and under the principle of proportionality, a financial barrier to access to court may result in a violation of Article 6 ECHR.75 Assessing this on a case-by-case basis: the amount of the fees assessed in the light of the particular circumstances of a given case, including the applicant’s ability to pay them, and the phase of the proceedings at which that restriction has been imposed are factors which are material in determining whether or not a person enjoyed his right of access.76

In another judgment the ECtHR used the relationship of the court fee required to the general monthly minimum wage in order to show the former’s excessive level.77 The principles were also applied to expert fees.78 c.  Right to a Fair Hearing 1.  Right to Equality of Arms According to the ECtHR’s case law the principle of ‘equality of arms’ is inherent in the broader concept of a fair trial and is closely linked to the adversarial principle. The requirement of ‘equality of arms’, in the sense of a ‘fair balance’ between the parties, applies in principle to civil as well as to criminal cases. The concept means maintaining a ‘fair balance’ between the parties. Equality of arms implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis the other party. The principle, which covers all aspects of procedural law in the Contracting States, is also applicable in the specific sphere of service of judicial documents on the parties, although Article 6(1) ECHR cannot be interpreted as prescribing a specific form of service of documents.79 In its Özgür Keskin v Turkey judgment the ECtHR pointed out that the general concept of a fair trial, encompassing also the fundamental principle that proceedings should be adversarial, requires that all parties to civil proceedings

74 ECtHR, 29 June 2001, No 28249/95, Kreuz v Poland, para 59; see for more details, Van Drooghenbroek (n 5) 180. 75 Another means to overcome financial problems is the right to legal aid (see below s II.C.iii). 76 ECtHR, 9 December 2010, No 35123/05, Urbanek v Austria, para 51. 77 ECtHR, 27 January 2015, No 22443/05, Coşkun v Turkey, para 25 (‘The court fees that the applicant was required to pay amounted to approximately EUR 20,600, while the monthly minimum wage was approximately EUR 260 at the time’). 78 ECtHR, 15 March 2018, No 51472/12, Smolić v Croatia, paras 48 ff. 79 For more details see ECtHR, Guide (n 20) paras 284 f.

Article 47  625 should have the opportunity to have knowledge of and comment on the observations submitted or evidence adduced with a view to influencing the court’s decision. Above all, that presupposes that the person against whom proceedings have been initiated should be informed of that fact. What is at stake is the litigants’ confidence in the workings of justice, which is based on, inter alia, the knowledge that they have had the opportunity to express their views on every document in the file.80

While not calling ‘into question the use of accelerated proceedings in certain disputes such as the one at issue seeking to address the demands of efficiency and economy’, but attaching ‘great importance to that objective’ the ECtHR rejected the idea that it could ‘justify disregarding such a fundamental principle as the right to adversarial proceedings’. Consequently, it falls within the responsibility of the domestic authorities to ensure that the standards set by Article 6(1) ECHR, and, in particular, the protection of the equality of arms, are respected.81 Concerning the use of evidence the ECtHR stated that the Convention does not lay down rules on evidence as such. The admissibility of evidence and the way it should be assessed are primarily matters for regulation by national law and the national courts. The same applies to the probative value of evidence and the burden of proof. It is also for the national courts to assess the relevance of proposed evidence. However, the Court’s task under the Convention is to ascertain whether the proceedings as a whole were fair, including the way in which evidence was taken. It must therefore establish whether the evidence was presented in such a way as to guarantee a fair trial.82 It is in this vein that the ECtHR found a violation of Article 6(1) ECHR in a case, where only one of the two participants in the events in issue was allowed to give evidence.83 Such an equality requirement is particularly important in the employment relation as workers claiming their rights often are the sole witness, eg in relation to the (disputed) content of meetings with an employer’s ­representative. 2.  Right to an Adversarial Hearing The right to an adversarial hearing is an important element of Article 47(2), which does not merely confer on each party to proceedings the right to be apprised of the documents produced and observations made to the court by the other party and to discuss them, but also implies a right for the parties to be apprised of pleas in law raised by the court of its own motion, on which it intends to base its decision, and to discuss them.84 As a recent example in relation to the burden of proof, one might refer to the AG’s Opinion in the



80 ECtHR,

17 October 2017, No 12305/09, Özgür Keskin v Turkey, para 32. para 33. 82 For more details see ECtHR, Guide (n 20) para 291. 83 ECtHR, 27 October 1993, No 14448/88, Dombo Beheer BV v the Netherlands, para 35. 84 CJEU, 21 February 2013, C‑472/11, Banif Plus Bank, para 30. 81 ibid,

626  Klaus Lörcher Altun case, when he clearly required that a fraud in relation to a posted workers’ certificate (E 101) against its binding nature ‘must be established in the context of adversarial proceedings’, but additionally specified that the necessity of ‘legal guarantees for the persons concerned and in compliance with their fundamental rights, in particular the right to an effective remedy enshrined in Article 47’.85 For the necessary evidence of an existing fraud he required, first, that the conditions laid down in the provision of Title II of Regulation No 1408/71 under which the E 101 certificate was issued are not satisfied in the present case (objective criterion) and, second, that the persons concerned intentionally concealed the fact that those conditions were not met (subjective criterion). It is only in those specific circumstances that a court of the host Member State may find that there exists a case of fraud enabling that court to disapply the E 101 certificate.86

3.  Right to Fair Trial Within a Reasonable Time In some areas of litigation of Article 6 ECHR the ECtHR recognises a more ‘structural’ approach, taking into account the specificities of the employment relation.87 Such is the case concerning the guarantee of ‘reasonable time’ for the procedure. According to the traditional case law of the Court, the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute.88

Regarding the last criterion of appreciation, consistent case law from the Court89 states that an employee who considers that he or she has been wrongly suspended or dismissed by his or her employer has an important personal interest in securing a judicial decision on the lawfulness of that measure promptly, since employment disputes by their nature call for expeditious decision, in view of what is at stake for the person concerned, who through dismissal loses his or her means of subsistence.90

This is also accepted in applications concerning a suspension,91 transfer92 or reinstatement,93 or where an amount claimed is of vital significance to the applicant.94 This right to an expeditious decision has been enhanced in cases 85 CJEU AG, Opinion, 9 November 2017, Case C‑359/16, Altun, para 55. 86 ibid. 87 See for more details Van Drooghenbroek (n 5) 181f. 88 ECtHR, 23 October 2007, No 10508/02, Gjonbocari et al v Albania, para 61. 89 ECtHR, 27 June 2000, No 30979/96, Frydlender v France, para 45. 90 ECtHR, 7 December 2010, No 18381/05, Mishgjoni v Albania, para 59; see also ECtHR, 6 May 1981, No 7759/77, Buchholz v Germany, para 52. 91 ECtHR, 28 June 1990, No 11761/85, Obermeier v Austria, para 72. 92 ECtHR, 24 September 2009, No 40589/07, Sartory v France, para 34. 93 ECtHR, 27 February 1992, No 12460/86, Ruotolo v Italy, para 117. 94 ECtHR, 23 April 1998, No 26256/95, Doustaly v France, para 48; see for more details ECtHR, Guide (n 20) para 376.

Article 47  627 in which a national legislation already required a speedy procedure. The Court recalled ‘that special diligence is necessary in employment disputes and that this requirement is reinforced additionally in respect of States where the domestic law provides that such cases must be resolved with particular urgency’.95 If there are periods of conciliation they form part of the assessment of the overall period. The ECtHR has made it clear that a period of one year and five months as ‘duration of the conciliatory stage … seems manifestly excessive since it aimed at a possible agreement between the parties’.96 4.  Right to a Request for a Preliminary Ruling by the CJEU? In the case of Dhahbi v Italy the ECtHR for the first time found a violation of Article 6 ECHR on account of the lack of reasons given by a domestic court for refusing to refer a question to the CJEU for a preliminary ruling. The Court of Cassation had made no reference to the applicant’s request for a preliminary ruling or to the reasons why it had considered that the question raised did not warrant referral to the CJEU, or reference to the CJEU’s case law. It was therefore unclear from the reasoning of the impugned judgment whether that question had been considered not to be relevant or to be related to a provision that was clear or had already been interpreted by the CJEU, or whether it had simply been ignored.97 Proceedings also include the execution duration at national level (see below). d.  Right to Prompt Implementation of a Final and Binding Judicial Decision Article 6(1) ECHR protects the implementation of final, binding judicial decisions (as distinct from the implementation of decisions that may be subject to review by a higher court). The right to execution of such decisions, given by any court, is an integral part of the ‘right to a court’. Otherwise, the provisions of Article 6(1) ECHR would be deprived of all useful effect.98 Obviously, a judgment not being executed within one year and eight months violated ­Article 6(1) ECHR.99 If a State transfers such an execution obligation to a new owner of the shares the State must ensure that the new owner complies with the ­requirements.100 Moreover, in the context of socially/state-owned companies a period of non-execution should not be limited to the enforcement stage only, but should also include the subsequent insolvency proceedings.101 Article 6(1) ECHR also requires that execution of judgments is effectively ensured by bailiffs. In a case in which the applicant was employed by a company

95 ECtHR,

10 December 2013, No 26042/06, Vilotijević v Serbia, para 53; emphasis added. 30 October 2014, No 49185/13, Mendes v Portugal, para 23. 97 ECtHR, 8 April 2014, No 17120/09, Dhahbi v Italy, paras 32–34. 98 ECtHR, Guide (n 20) paras 135 f. 99 ECtHR, 19 June 2014, No 10122/04, Gurgach v Russia. 100 ECtHR, 22 October 2013, No 5353/11, Marinković v Serbia, para 39. 101 ECtHR, 1 October 2013, No 64931/10, Stošić v Serbia, para 55. 96 ECtHR,

628  Klaus Lörcher registered in Portugal but whose shareholders were of Spanish nationality and not domiciled in Portugal and had court orders for several thousand euros in arrears of salary and for unfair dismissal the company failed to comply with the judgment. Upon information that the company had been dissolved the applicant obtained a document from the Portuguese courts certifying that the judgment was enforceable in accordance with Regulation (EC) 44/2001 (‘­Brussels I’)102 and sent it to the bailiff concerned. However, the latter had just sent the enforcement order to the Spanish courts and was awaiting their reply. After some years the proceedings were still pending. The ECtHR was not satisfied with the inactivity and held that Article 6 (right to a fair hearing) had been violated.103 Concerning sanctions for effective enforcement, one not only finds specific provisions in EU law (section I.C.i) but even ECtHR case law holding, for example, that, by refraining from taking sanctions in respect of the failure of a (private) third party to cooperate with the authorities empowered to enforce final enforceable decisions, the national authorities deprived the provisions of Article 6(1) ECHR of all useful effect.104 Moreover, the rights for effective enforcement of ECtHR judgments are included in the specific rights, eg in­ Article 10 on freedom of expression.105 e.  Right to Prohibition Against Victimisation In several (mainly anti-discrimination) Directives victimisation of complainants is explicitly prohibited. Nevertheless, the CJEU recognised such a right as the [f]ear of such a reprisal measure, where no legal remedy is available against it, might deter workers who considered themselves the victims of a measure taken by their employer from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the directive.106

In a very recent document, the Commission provided for a detailed (still nonexhaustive) list of retaliation measures which should be considered as prohibited. Although it is focused on the protection of whistleblowers there is no reason why this list should not also be applicable for other areas of prohibited retaliation: a) suspension, lay-off, dismissal or equivalent measures; b) demotion or withholding of promotion; c) transfer of duties, change of location of place of work, reduction in wages, change in working hours;

102 See, to this effect, n 12. 103 ECtHR, 15 April 2014, No 5238/10, Terebus v Portugal. 104 ECtHR, Guide (n 20) para 155, referring to ECtHR, 22 June 2004, No 78028/01 et al, Pini and Others v Romania, paras 186–88). 105 ECtHR 27.2.2018, No 1085/10, Guja v The Republic of Moldova (No 2). 106 CJEU, 14 October 2010, C-243/09, Fuß, para 66.

Article 47  629 d) withholding of training; e) negative performance assessment or employment reference; f) imposition or administering of any discipline, reprimand or other penalty, i­ ncluding a financial penalty; g) coercion, intimidation, harassment or ostracism at the workplace; h) discrimination, disadvantage or unfair treatment; i) failure to convert a temporary employment contract into a permanent one; j) failure to renew or early termination of the temporary employment contract; k) damage, including to the person’s reputation, or financial loss, including loss of business and loss of income; l) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which entails that the person will not, in the future, find employment in the sector or industry; m) early termination or cancellation of contract for goods or services; n) cancellation of a licence or permit.107

iii.  Right to Legal Aid (Paragraph 3) According to the Explanations the right to legal aid is based on the ECtHR’s case law on Article 6(1) ECHR in relation to the right of access to court.108 However, any limitations that might derive from the wording of Article 6 ECHR109 are not applicable to Article 47(3) as there are only two main conditions: (1) the ‘lack of sufficient resources’ and (2) the legal aid ‘is necessary to ensure effective access to justice’. Legal aid can be provided by assigning a lawyer to represent a party. But this does not in itself guarantee effective assistance. The lawyer appointed for legal aid purposes may be prevented for a protracted period from acting or may shirk his duties. If they are notified of the situation, the competent national authorities must replace him; should they fail to do so, the litigant would be deprived of effective assistance in practice despite the provision of free legal aid.110 In any event, it should be noted that the CJEU admitted that financial problems, even in relation to the charging of VAT on the services supplied by lawyers, might create, by themselves, an insurmountable obstacle to access to justice or make it in practice impossible or excessively difficult to exercise the rights conferred by the EU legal order and account would have to be taken of this by

107 Proposal for a Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law (COM/2018/218 final), 23.4.2018, Art 14 – Prohibition of retaliation against reporting persons. 108 ECtHR, Guide (n 20) paras 100 ff. 109 See for the (other) factors to be taken into account whether Art 6 implies a requirement to provide legal aid ibid (n 20) para 103. 110 ibid (n 20) para 108.

630  Klaus Lörcher framing the right to legal aid appropriately, in accordance with the third paragraph of Article 47 of the Charter.111 In relation to employment issues trade unions might offer legal aid coupled with legal assistance for their members. But non-members will very much depend on a legal aid system. D. Limitations According to the ECtHR’s case law the rights included in Article 47 are not absolute rights. However, each limitation must fulfil the requirements defined in Article 52(1). Moreover, as foreseen in Article 52(3) they must respect also the limits the ECtHR has drawn in relation to Articles 6 and 13 ECHR. Concerning Article 6 ECHR the ECtHR has stated that this right is not absolute but may be subject to limitations. These are permitted by implication, because the right of access by its very nature calls for regulation by the State. However, these limitations must not restrict or reduce the access that remains to an individual in such a way or to such an extent that the very essence of the right is impaired. It therefore needs to be ascertained whether the nature of the limitation in question and/or the manner in which it was applied are compatible with the Convention. This means, in particular, that the Court must satisfy itself that the application of such a limitation could be regarded as foreseeable for the applicants, having regard to the relevant legislation and case law and the particular circumstances of the case.112 In the specific case on a specific time-limit (10 days) to file a complaint it stated that the Labour Court’s finding contradicted the established case law of the Supreme Court, developed in the application of that provision. That was not foreseeable.113 An important example related to the doctrine of foreign State immunity is generally accepted by the community of nations and has been circumscribed by developments in customary international law. Thus, the ECtHR has noted a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of embassy staff, concerning dismissal and concerning the serving of a summons in proceedings against a foreign State relating to salary arrears.114 Concerning national legislation that makes the exercise of a judicial remedy by a person stating that a complainant’s right to protection of personal data guaranteed by Directive 95/46 has been infringed subject to prior exhaustion

111 CJEU, 28 July 2016, C‑543/14, Ordre des barreaux francophones et germanophones, para 37. 112 ECtHR, 15 March 2018, No 45611/13, Gregurić v Croatia, para 33 f (with references to previous case law). 113 ibid, paras 39 ff. 114 ECtHR, Guide (n 20) para 89.

Article 47  631 of the available administrative remedies, the CJEU has interpreted Article 47 as meaning that it does not preclude such legislation, provided that the practical arrangements for the exercise of such remedies do not disproportionately affect the right to an effective remedy before a court referred to in that article. It is important, in particular, that the prior exhaustion of the available administrative remedies does not lead to a substantial delay in bringing a legal action, that it involves the suspension of the limitation period of the rights concerned and that it does not involve excessive costs.115 E. Enforcement In principle, Article 47 serves as one of the (if not the) most important means for ensuring effective enforcement of the fundamental (social) rights enshrined in the Charter. Non-judicial enforcement mechanisms at EU level116 and national level (in particular via labour inspection)117 can be important for better and quicker enforcement, but can never replace access to justice.118 III. CONCLUSIONS

In examining the CJEU’s case law it was found that Article 47 is still a ‘sleeping beauty’ in employment matters. Whereas the ECtHR has developed an abundant case law, in particular on Article 6(1) ECHR, it can also be said that sensitivity to the situation of workers in court proceedings is not yet sufficiently taken into account. Nevertheless, it would already be a ‘first step’ if the CJEU directly followed the ECtHR’s jurisprudence.

115 CJEU, 27 September 2017, C‑73/16, Puškár, para 71. 116 Besides the European Ombudsman (Art 43) and the right to petition (Art 44), see, for example, FRA (ed), Improving access to remedy in the area of business and human rights at the EU level, Opinion 1/2017 (10.4.2017), http://fra.europa.eu/en/opinion/2017/business-human-rights, 55 ff. 117 See in particular the ILO instruments mentioned in s I.C.iii. 118 See FRA/ECtHR, Handbook (n 1) 48 ff.

632

28 Conclusions FILIP DORSSEMONT, KLAUS LÖRCHER, STEFAN CLAUWAERT AND MÉLANIE SCHMITT

[A]ll human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; (b) the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy; (c) all national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective.1

I.  THE LAST PART OF A TRILOGY

This volume concludes a trilogy focusing on the added value of core European human rights instruments for the employment relation. Whereas the previous volumes focused on two instruments adopted within the Council of Europe (CoE) – namely, the European Convention of Human Rights (ECHR) and the European Social Charter (ESC) – this volume focuses on the Charter of Fundamental Rights of the European Union (CFREU, hereafter ‘the Charter’), which was adopted in 2000, amended in 2007 and has had the same primary EU law value as the Treaties ever since the entry into force of the Lisbon Treaty (2009). These three instruments constitute the foundation of the fundamental social rights, in particular in the employment relation, throughout the EU and its Member States. Whereas the CoE presents itself as the ‘continent’s leading human rights organization’,2 the European Union presents itself as ‘a unique economic and political union between 28 European countries that together cover much of the



1 Declaration

of Philadelphia, 1944.

2 https://www.coe.int/en/web/about-us/who-we-are

(emphasis added).

634  Dorssemont, Lörcher, Clauwaert and Schmitt continent’.3 Whereas the adoption of the ECHR (1950) was nearly contemporary with the foundation of the CoE (1949) and its main first standard-setting activity, more than 50 years passed between the institution of the European Economic Community (1957) and the adoption of the Lisbon Treaty, giving binding force to a Bill of Rights sui generis supposed ‘to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments’. Whereas the conclusion of the ECHR, as well of the Additional Protocol to the ESC of 1995 providing for a system of collective complaints, gave rise to a conventional judicial and quasi-judicial supervisory machinery instituted for the sole purposes of the monitoring of these obligations, neither the adoption of the CFREU neither its entry into force ever did.4 The CFREU essentially has two generic judicial guardians: the Court of Justice of the European Union (CJEU) and the judiciaries of the Member States. Both judiciaries are called on in the Preamble to ‘interpret’ the Charter. This situation is not entirely different from the double role played by national courts, as well as the bodies specific to the Council of Europe – that is, the European Court of Human Rights (ECtHR) and the European Committee of Social Rights (ECSR) – in interpreting the ECHR and the ESC, but there is an essential difference. Whereas the human rights instruments of the Council of Europe are solely addressed to the Contracting Parties,5 the CFREU is addressed primarily to the institutions of the European Union and to the Member States solely when they are implementing Union law. The rights in the CFREU are qualified as fundamental rights in a generic way, although it also makes a subsequent distinction between ‘rights’ and ‘freedoms’, as well as between ‘rights’ and ‘principles’. Neither of these two distinctions has been the object of further definition. The distinction between rights and freedoms seems immaterial because the CFREU does not indicate why this distinction should be relevant from a legal point of view. The consequences of the distinction between rights and principles have been developed in Article 52(5) CFREU. It is stated that principles are ‘judicially cognisable only in the interpretation of such acts’, that is, ‘legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law and in the ruling on their legality’. In Association de médiation sociale6 the CJEU missed an excellent opportunity to clarify this distinction between rights and principles by adding a supplementary layer of confusion. It made a distinction between provisions of the CFREU having

3 https://europa.eu/european-union/about-eu/eu-in-brief_en. 4 https://europa.eu/european-union/about-eu/eu-in-brief_en#from_economic_to_political_ union. 5 ‘This does not exclude that national judiciaries might attribute a direct effect to certain ESC provisions, just as they tend to do with regard to ECHR provisions.’ 6 CJEU, 15 January 2014, C-176/12, Association de médiation sociale.

Conclusions  635 a direct effect and those deprived of such an effect. The disqualification of the right to information and consultation as a mere principle deprived the provision concerned (Article 27 CFREU) of the judicial cognisability highlighted in ­Article  52(5) and thus of its useful effect (effet utile). In the case concerned, the trade unions had claimed that the French law implementing the Framework Directive on Information and Consultation 2002/14/EC was at odds with that directive, as well as with the fundamental right concerned and argued that such an assessment of the legality of the French act should have empowered the French judges to disapply that provision of French labour law. The CJEU denied that the CFREU generated such an obligation. Although, the Court thus gave the impression that such an empowerment of national judges to disapply in a horizontal way domestic provisions implementing a directive in a way which was at odds with a directive implementing a provision of the Charter was limited to non-discrimination issues, two recent judgments pave the way for empowering judges in similar circumstances in cases dealing with social workers’ rights unrelated to non-discrimination, such as inter alia the right to paid annual leave.7 The Treaty on European Union (TEU) refers in a seemingly inconsistent way to human rights, as well as to fundamental rights. The distinction between the two concepts is not crystal clear, but it might be used as an argument to say that some fundamental rights speak louder than others, such as the so-called fundamental economic freedoms and the freedom to conduct a business, which have never been raised to the status of human rights in any international or CoE instrument. In its case law prior and posterior to the adoption of the CFREU, the CJEU has also paid tribute to so-called general principles of EU law. The legal qualification of some rights as general principles has amounted in a number of labour law cases to an empowerment of the national judges to disapply national provisions that were not in conformity with EU directives in litigation between private individuals. The latter general principles of EU labour law need to be distinguished from the general principles of labour law that have been an inspiration for the CJEU in the so-called staff cases. As opposed to the instruments developed within the CoE, the CFREU has succeeded in overcoming the dissociation of civil and political rights and economic, social and cultural rights. The integration of fundamental rights within one instrument strengthens the case for the indivisibility of human rights. Whether the mere juxtaposition of these rights within one text is sufficient to conclude to the emancipation of economic, social and cultural rights, which still tend to be classified as second-generation rights, and whether the adoption of the CFREU did alter the economic constitution, the social constitution and more importantly the articulation between the two constitutions is another story. Furthermore, the distinction between social and economic rights ­continues to

7 CJEU, 6 November 2018, C-569/16 and C-570/16, Bauer ea and, 6 November 2018, C-684/16, Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V.

636  Dorssemont, Lörcher, Clauwaert and Schmitt prevail in an implicit way and the record of the CJEU gives the impression that economic freedoms have much more weight than social rights. II.  GREAT EXPECTATIONS

The adoption of the Charter and its promotion as an instrument of primary Union law clearly generated ‘great expectations’ among the ‘epistemic community’ of labour lawyers and within the European trade union movement. Thus the European Trade Union Confederation (ETUC) has advocated the ­adoption of the Lisbon Treaty as significant progress. This adoption, despite the lost battles in particular during the drafting of the non-ratified Constitutional Treaty, gave rise to considerable hope. Nearly a decade later, one might ask whether these expectations have been met and whether some expectations were legitimate at all. Such a question needs to be analysed with great care. First, a distinction needs to be made between the different roles that various EU institutions, bodies, offices and agencies, as well as the Member States play in what the Charter frames as the obligation pending upon the former to ‘respect the rights, observe the principles and promote the application thereof’ (Article 51(1), emphasis added). Despite the fact that the Charter is binding upon all EU institutions, only the Commission, the Council and the Parliament have formally proclaimed the Charter. Neither the CJEU nor the Member States have ever joined in a formal proclamation. Furthermore, a decade is perhaps too short a time in which to draw a final assessment of the impact of the Charter. The Charter is a living instrument as well and it has only reached adolescence. The Ideengeschichte continues and we are not at its end. The adoption of the Charter, contrary to the adoption of the Community Charter of fundamental social rights of workers, not to mention its status as an instrument of primary union law, has never stimulated the Commission to schedule in any systematic way a range of legislative projects based on the use of conferred competences to be ‘delivered’. Although the Commission is the guardian of the Treaty, it has failed to see that it is supposed to promote the Charter. To the contrary the Commission has abandoned its previous habit of publishing social policy agendas since 2008. The last communication of that nature hardly refers to the Charter.8 The Commission is rather obsessed with ‘better and smart regulation’ than with regulation that actually implements and promotes the Charter. In his contribution to this volume, Deakin goes prospecting.9 Like a modern Diogenes, he is in search of the social constitution of the European Union. It is a dangerous path. In looking for a genuine representative of mankind, Diogenes



8 COM/2008/0412 9 See

final. Deakin, ch 4 in this book.

Conclusions  637 became known as the founder of the Cynic school. But whereas Diogenes failed to find a genuine representative of mankind, Deakin has been able to find some components of such a social constitution. His dissatisfaction with the state of the art is more related to the fact that these components can hardly be described as cornerstones or foundations of the ‘European construction’ at large. The issue here is not whether one can find elements of a social pillar but whether the social constitution has been established and construed as a ‘socle’ (foundation), as the French version of the European Pillar Social Rights10 (EPSR) suggests. Such a question inevitably entails an issue of articulation between the various constitutions. If the relationship between the constitutions is unsatisfactory a recalibration is necessary. In order to contribute to this, the author tries to overcome the caricature that the economic constitution has become. Some national constitutions could serve as good models of what a genuine social constitution should look like. Thus, the Weimar Constitution contained a provision putting social objectives at the very heart of the economic constitution rather than seeing social justice as a self-fulfilling prophecy or a horizon of such a constitution (See Article 151 Weimarer Reichsverfassung).11 The Italian Constitution, in a similar vein, stresses that the Italian Republic is based upon labour and declares some principles as fundamental before the enunciation of a bill of rights and duties. Among the former, no economic freedoms are mentioned, but tribute is paid to the idea of the equality of citizens in light of human dignity and the obligation of a state to remove economic and social obstacles to the integral human development and to the effective participation of the workers (lavoratori) to the political economic and social organisation of the nation (paese). In doing so, it could be argued that the Italian Republic is not just based upon labour, but on workers as well. Neither the Treaties nor the Charter contain conclusive evidence of such an approach putting social justice at the heart of the constitution, let alone of the economic constitution. The difference from the approach of the Declaration of Philadelphia quoted above is striking. The only but still very important tool that generates such an approach is the intuition implied in the drafting of Articles 2 and 3 TEU that values should speak louder than objectives. Rather than focusing on the vague idea that the Union among the peoples will become ‘ever closer’ it might have been more interesting to clarify the nature of such a union. The idea of the ‘Sozialstaat’ could serve as an inspiration.12

10 Interinstitutional Proclamation on the European Pillar on Social Rights, OJ C 428/10 of 13.12.2017. 11 ‘Die Ordnung des Wirtschaftslebens muß den Grundsätzen der Gerechtigkeit mit dem Ziele der Gewährleistung eines menschenwürdigen Daseins für alle entsprechen. In diesen Grenzen ist die wirtschaftliche Freiheit des Einzelnen zu sichern’ [The economy has to be organized based on the principles of justice, with the goal of achieving a life in dignity for everyone. Within these limits the economic liberty of the individual is to be secured.] (Art 151, Verfassung des Deutschen Reichs, Weimarer Reichsverfassung, 1919). 12 See Arts 20(1) and 28(1) Basic Law of Germany (Grundgesetz).

638  Dorssemont, Lörcher, Clauwaert and Schmitt The question arises of what workers can reasonably expect from a ‘bill of rights’ that restricts its field of application to two distinct hypotheses and actors. Prior to such a question, the notion of ‘workers’ should be given an extensive interpretation. The contribution by Unterschütz indicates two hurdles. In a number of EU Directives intimately related to the fundamental rights enshrined in the Charter, the notion of ‘worker’ is defined by way of a reference to national law. The contribution by Veneziani even points out that seafarers have originally been excluded from the application of the most significant EU directives in the field of information and consultation, although they are workers under the law of the Member States.13 The autonomous approach to the concept of worker elaborated by the CJEU in a number of cases is still indebted to the enigmatic concept of ‘subordination’ and is not helpful for extending the application of EU directives to genuine self-employed workers.14 Insofar as the Charter is a human rights instrument, even the autonomous approach is too restrictive and undermines the dignity of the self-employed workers at work. The ILO supervisory bodies have adopted a much broader approach, even in sensitive issues like the right to strike and the right to collective bargaining. From a formal point of view, a lot could be expected from EU institutions that are bound in a direct and immediate way as opposed to Member States, which are bound only provided that they implement EU law.15 There is one category of workers that could invoke in a direct way the fundamental rights enshrined in the Charter against their employers, even in the absence of labour law adopted by the institutions. At the risk of sounding cynical, the search for such a worker has revealed the existence of EU civil servants sensu lato, id est, staff members who have entered into an employment relation with the EU institutions, offices, bodies and agencies. They are by far the most protected workers under the Charter. To date, the applicability of the Charter has not provoked a major landslide, however. Prior to the Charter, the staff regulations were mute on the existence of the right to strike, an ‘s’ word to be avoided in a Union composed of at least one powerful Member State that continues to deprive its civil servants of the right to strike.16 Prior to the Charter wages and working conditions were set unilaterally, after a due process of information and consultation. Wages and working conditions are outside the purview of collective bargaining. The adoption and entry into force of the Charter did not change anything whatsoever in this respect, despite some failed attempts to challenge the absence of collective bargaining at the European Central Bank (ECB). It appears that fundamental rights are still terra incognita for the civil servants of the EU. Thus, no case

13 See Veneziani, ch 21 in this book. 14 See Unterschütz, ch 5 in this book. 15 See Koukiadaki, ch 6 in this book. 16 See independently of the question of compatibility with Article 11 ECHR, the Judgment of the German Constitutional Court (Bundesverfassungsgericht, 12 June 2018, 2 BvR 1738/12 ea) confirming the ban on the right to strike for civil servants.

Conclusions  639 concerning religious apparel has been detected in the staff cases. Neither has the Charter ever been quoted in staff cases dealing with the freedom of expression of civil servants. The question of the extent to which EU institutions, offices, agencies, bodies and agencies can be considered potential perpetrators of the Charter rights in respect of other workers than its staff is hard to tackle. The only case law is related to the role of the European Commission in austerity policies. The CJEU has been very reluctant to scrutinise the role of EU institutions acting within the framework of the new economic governance. The Ledra Advertising and Florescu cases17 might constitute a turning point. The bulk of the case law studied in this volume deals with cases in which the Charter has been invoked concerning actions by Member States implementing Union law. This requirement inevitably weakens the impact of the Charter within subject areas intertwined with fundamental rights that fall outside the scope of EU policies or have not yet given rise to EU legislation. Hence the exclusion of the freedom of association, the right to strike and lock out and the issue of wages from EU competences (cf Article 153(5) TFEU) has been an obstacle to the added value of a number of Charter provisions (cf Article 12, Article 28 with regard to collective action). The Charter has no clear cut added value for the issue of a right to fair and just remuneration because it does not even refer explicitly to this right. In this respect, the EPSR constitutes some progress, if one ignores the fact that it is not part of primary law. A number of other chapters in this book have constituted a challenge for the authors in view of the lack of immediately relevant EU Directives adopted on the basis of the competences enshrined in the TFEU Social Policy Title (eg Article 153). These authors have successfully filled these gaps by pointing out relevant legal materials adopted outside the Social Policy Title that are relevant for the employment relation (Article 5,18 Article 8,19 Article 17(2))20 or by giving

17 CJEU, 13 June 2017, C-258/14, Florescu and Others, and 20 September 2016, C-8/15 P to C‑10/15 P, Ledra Advertising and Others. 18 See Bruun and Unterschutz, ch 10, highlighting the Directive on preventing and combating ­trafficking in human beings and protecting its victims. 19 See Hendrickx, ch 12, referring to the Data Protection Directive 95/46/EC as well as to the recent General Data Protection Regulation (EU) 2016/679 (GDPR). 20 See Bruun, ch 18, referring to an impressive list of directives: Computer programs (91/250/EEC, later readopted codified version 2009/24/EU), Rental and lending rights (92/100/EEC), Satellite and cable (93/83/EEC), Copyright duration (93/98/EEC), Databases (96/9/EC), Conditional access (98/84/ EC), Copyright/Information Society (2001/29/EC), Resale rights (2001/84/EC), Civil enforcement (2004/48/EC), Copyright term (2006/116/EC), Certain permitted uses of orphan works (2012/28/ EU), The protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (EU) 2016/943, Certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print- disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (EU) 2017/1564.

640  Dorssemont, Lörcher, Clauwaert and Schmitt substance to a provision that prima facie seemed extremely abstract (Article 1).21 The identification of these instruments may prove to be beneficial for the added value of a number of Charter provisions. However, the mere fact that Member States are acting outside the field of EU competences, or are acting in an ambit in which the EU has not yet used its competences or are implementing an EU ‘minimum’ Directive in a more progressive way, does not mean that they will be shielded completely from the impact of the Charter. The nature of the impact might in these cases be different. As the Charter will not apply, it will not serve as a catalyst for progressive development and interpretation (Rechtsfortbilding) of labour law. Conversely in relation to the economic freedoms and Article 16 of the Charter, the danger is that it will be an obstacle to such an evolution. In sum, the Charter has been used to prevent Member States from doing what they are supposed to do, id est promoting the fundamental (workers) rights of the Charter within the meaning of Article 51(1). Hence, two scenarios need to be distinguished. In a first scenario, an EU directive could be seen as a piece of legislation promoting or elaborating a fundamental right enshrined by the CFREU that is relevant for workers. In such a scenario, the provisions of the Charter could be beneficial in two ways. First, the Charter could serve as a catalyst for a more progressive interpretation of an EU directive that elaborates and fleshes out such a right. In such a hypothesis, the Court would not just impose national judges to interpret national law in conformity with EU directives; it would also interpret EU directives in conformity with the CFREU. However, the Court in its practice does not at all use these conceptual resources in any systematic way. To give one example: despite the abundance of EU directives fleshing out the right to information and consultation, the CJEU hardly seems to refer to the Charter while interpreting these directives. Thus, in Mono Car Styling22 the Court, although dealing with the quintessential question of the individual or collective nature of the right to information and consultation, did not seek any guidance in the CFREU. Hence, the best way to ensure that the Court is forced to take the Charter into account might be the construction of questions in a preliminary procedure based upon references to the Charter provisions. That brings us to the second beneficial way in which the Charter might have an impact; it is based upon preliminary questions asking whether rights enshrined in the Charter might be construed as general principles of EU law empowering national judges to disapply national provisions implementing EU directives not in conformity with the former.23

21 See Kresal, ch 9 in this book. 22 CJEU, 16 July 2009, C-12/08, Mono Car Styling (2009) ECR-I 6653. 23 For a recent example, see CJEU (GC), 17 April 2018, C-414/16, Egenberger, para 76: ‘That prohibition, which is laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law’.

Conclusions  641 One might argue that the Charter thus generates a horizontal effect sui generis. Three caveats could be added. Technically speaking, the status of a general principle is not linked to the fact that a right has been enshrined in the Charter, nor, second, has the Court accepted that the mere fact that a right has been enshrined in the Charter will empower a national judge to disapply national law that is not in conformity with a directive related to a right enshrined in the CFREU. Third, the case law of the Court seems to generate an argument for the horizontal effect of the directive rather than of the Charter. Indeed, it is inconceivable that citizens could invoke the Charter against other citizens outside the realm of an implemented directive. Because the provisions of the Charter are deprived of such immediate effect, the horizontal effect of isolated provisions does not even come into play. In practice, the Charter has been used to block a more progressive interpretation of EU directives and, worse, to block a more progressive implementation of minimum directives in the field of labour law. This second scenario might explain not only that expectations have not been met, but that the Charter has proved to be counterproductive. This evolution is hardly surprising. It stems from the fact that the Charter has given an unprecedented fundamental rights status to purely economic principles, thus corroborating or perhaps fossilising the predominance of its economic constitution. In one case employers have even been successful in invoking core labour rights lying at the heart of industrial relations in order to interpret the EU directive as not generating an obligation to give binding force to a dynamic incorporation clause in respect of collective agreements applicable to the transferor after the transfer. In Werhof  24 the transferee successfully invoked the negative freedom of association. Ironically, this nearly historic recognition of the right to association as a fundamental right relevant for the EU legal order focused on its negative dimension and was mobilised by employers against the interest of employees. In Alemo Herron25 the Court invented another legal basis to interpret the Transfer of Undertakings Directive 2001/23/EC as not entailing an obligation for a transferee to apply collective agreements binding the transferee in a dynamic way. On this occasion the CJEU mobilised Article 16 CFREU as a legal basis to refute such a binding effect. In both cases, fundamental rights enshrined in the Charter have been mobilised to oppose a more progressive implementation securing stability or improving working conditions of transferred workers. In Achbita the Court used the reference to the freedom to conduct a business as a lever to justify a kind of discrimination that it erroneously qualified as indirect.26 In Aget Iraklis27 the CJEU took into account the freedom of establishment to consider a more progressive and protecting transposition of the Collective Redundancy

24 See

CJEU, 9 March 2006, C-499/04, Werhof. CJEU, 18 July 2013, C-426/11, Alemo-Herron. 26 CJEU, 14 March 2017, C-157/15, Achbita. 27 See CJEU (GC), 21 December 2016, C-201/15, AGET Iraklis. 25 See

642  Dorssemont, Lörcher, Clauwaert and Schmitt Directive not to be in conformity with EU law, this time giving much less weight to Article 16 CFREU. In sum, the Court of Justice has used the Charter in ambiguous ways. In a number of cases, the Court has refused to use the Charter in order to enforce the existing social acquis of EU directives (Association de mediation sociale). In a number of cases, it has even used the Charter to block a more progressive interpretation of the social acquis or a more generous and progressive implementation of it. Furthermore, as highlighted in the contribution by Rasnača,28 the likelihood of convincing the Court to make use of the Charter, which is incremental to the social acquis, is furthermore complicated by the limited access trade unions might have to that Court (or the General Court). Whereas the Court will block more progressive interpretations and implementations of the social acquis, trade unions will have major difficulties attacking EU instruments that are detrimental to the social standards enshrined in the Charter through the annulment procedure. They cannot trigger an infringement procedure and the chances they could make their point in a preliminary procedure are entirely dependent upon the willingness of national judges to submit preliminary questions. Inevitably, the question arises of the extent to which this state of the art is compatible with the constitutional obligation of all the EU institutions to recognise and promote the role of social partners at its level (Article 152 TFEU). Furthermore, a refusal to recognise their locus standi seems to be at odds with the scope of Article 12 CFREU interpreted in light of the ECtHR’s Adefdromil v France judgement. III.  A TALE OF TWO CITIES

Despite this grim overview, the Charter contains a (broken) promise that the rights enshrined in the Charter that correspond to those protected by the ECHR should (at least) have the same meaning and scope as the latter (Article 52(3)). Such a statement makes sense only if the CJEU interpreted these rights in light of the case law of the ECtHR, which the Charter according to the Preamble is said to reaffirm. In his contribution on interpretation, Lörcher29 pushes this demand of intertextual interpretation a step further, arguing that Article 53 CFREU puts forward that international standards ratified by all the Member States constitute a minimum level of protection that has to be taken into account. On the basis of a quantitative analysis of the references in the case law related to labour law directives to which the explanations refer, Lörcher30 has proven



28 See

Rasnača, ch 8 in this book. Lörcher, ch 7 in this book. 30 ibid. 29 See

Conclusions  643 that the CJEU has refused to take the Charter into account in any systematic or consistent way. Even more worrying is the fact that the Court, in our modest opinion, has interpreted some of the rights enshrined in the Charter in a way that is at least at variance and even in complete contradiction with the case law of the ECtHR. In these cases, it has even given an interpretation of the ECHR by referring to case law that, if read closely, can warrant only opposite interpretations. In Werhof the Court invented an existing nexus between a duty to apply a collective agreement signed by an employers’ organisation to which an employer was not affiliated and the violation of the negative freedom of association. The Court invoked the ECtHR’s Gustafsson v Sweden31 judgment in which the existence of such a nexus was explicitly denied. In the same vein, the Court invoked in Achbita32 the idea that the corporate image of the enterprise was a justification for indirect discrimination, invoking the importance the ECtHR had paid in Eweida33 to the corporate image as an interest that had to be taken into account while assessing restrictions on the freedom of religion. In fact, the ECtHR has stated in Eweida that the domestic judges had accorded it too much weight. Furthermore, the approach of the CJEU in Achbita is at odds with the approach of the ECtHR. In Eweida, British Airways had indeed offered Eweida a job in the back office, but this did not alter the judgment of the Court, whereas in Achbita the CJEU ruled that such a gesture would need to be taken into account in assessing proportionality. However, in cases of freedom of religion, miracles can happen as well. In Egenberger, the CJEU clarified the scope of Article 4(2) Directive 2000/78/EC which allows Member States to invoke religion or belief as a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos as justification of direct discrimination. The Court has mitigated this prerogative by imposing an unwritten condition of proportionality, thus reducing the gap with the occupational requirements indicated in Article 4(1) Directive 2000/78/EC.34 Furthermore, the Court invoked Article 47 of the Charter to refute the thesis that Tendenzschutz was deprived of judicial control.35 Hence, the CJEU deviated (in accordance with Article 52(3) allowing ‘more extensive protection’) from the approach adopted by the ECtHR, which in Karoly Nagy36 considered that a broad view on the autonomy of religious institutions based upon the ­freedom of religion could justify such a restriction of Article 6 ECHR.



31 See

ECtHR, 25 April 1996, No 15573/89, Gustafsson. 14 March 2017, C-157/15, Achbita. 33 ECtHR, 15 January 2013, No 48420/10, Eweida. 34 CJEU, 17 April 2018, C-414/16, Egenberger. 35 CJEU, 11 September 2018, C-68/17, IR. 36 ECtHR, 14 September 2017, No 56665/09, Károly Nagy v Hungary. 32 CJEU,

644  Dorssemont, Lörcher, Clauwaert and Schmitt IV.  HARD TIMES

The adoption of the Lisbon Treaty was preceded and followed by two infamous judgments. Viking was ruled on 11 December 2007, id est two days prior to the adoption of the Lisbon Treaty, and the Laval case was ruled five days later. In both cases the Court referred to Article 28 CFREU, which was not yet binding. The Court recognised the right to take collective action as a fundamental right that is part of the general principles of EU law, capable of restricting fundamental economic freedoms. However, the conditions of this balancing exercise prescribed for the use of domestic judges in Viking struck at the essence of the right to take collective action, whereas the Court in Laval imposed a completely impractical predictability test on the outcome of the bargaining process, combined with the idea that bargaining could not amount to a protection that surpassed the social protection de lege lata. In sum, the references to the CFREU were not used to save the collective action at hand. Hence, recognition of fundamental workers’ rights as a preliminary step to balancing the fundamental economic freedoms with the workers’ rights was seen to be a prelude to the justification of restrictions, if not prohibitions. In 2008, the financial and economic crisis generated a radical shift in economic governance, forcing Member States to introduce measures significantly regressing the social acquis. All attempts to mobilise the Charter against these austerity measures, whether adopted by the European institutions or by the Member States, failed. The only positive development is that the Court gradually accepted its jurisdiction to deal with measures adopted by the European institutions that formally fell beyond the scope of EU law (Florescu). Hence the economic crisis was accepted as a rationale to restrict social rights. Ever since Aget Iraklis, it has also been rejected as a rationale for improving social rights. V.  ALWAYS LOOK ON THE BRIGHT SIDE OF LIFE: TOWARDS A CHRISTMAS CAROL AFTER ALL?

The overall picture is that the Charter did not trigger a European spring. No glorious revolution took place, not even a glorious evolution. In her conclusion, Koukiadaki37 even states that there is no relationship between the constitutionalisation of labour standards and the development of a social acquis at EU level. One of the major potential catalysts offering a guarantee of a progressive interpretation of the Charter in light of the ECHR is the implementation of the ‘constitutional’ duty to accede to the ECHR (Article 6(2) TEU). The CJEU has vetoed this accession in a well-known ‘opinion’.38 As important as accession to

37 See

Koukiadaki, ch 6 in this book. 18 December 2014, Opinion 2/13.

38 CJEU,

Conclusions  645 the ECHR is, there is the issue of accession to the European Social Charter. Such an act might trigger more dialogue and hence more intertextuality, whereas, at present, no ‘constitutional’ obligation to accede has been enshrined in primary law. Although the so-called dialogue between the courts sensu lato would be enhanced by accession to these two CoE instruments, it is not essential for dialogue or for intertextual interpretation. A number of authors39 have highlighted the potential of the so-called European Pillar of Social Rights (EPSR) proclaimed by the Commission, the European Parliament and the Council within the framework of the Social Summit at Göteborg in November 2017, hence in a way similar to the CFREU in 2000. Contrary to the Charter since 2009, the EPSR is not part of primary EU law. The EPSR might be a political lever for pushing EU legislation. Contrary to what happened when the Community Charter of Fundamental Rights of Workers (Community Charter) was proclaimed in 1989, no systematic Social Action Programme was adopted. However, the Commission has referred to the EPSR as a lever for proposing a Directive on work–life balance for parents and carers. The adoption of such a directive would in fact enhance the relevance of ­Article 33 CFREU.40 The Commission also proposed a revision of Directive 91/533.41 This proposal of a Directive that has been submitted is related to more transparent and predictable working conditions. Adoption would improve the protection afforded by Article 31 CFREU. The EPSR complements the Charter, insofar as it refers to a number of rights that have not been enshrined – at least not explicitly in the CFREU. In this respect the right to fair wages could be mentioned. However, there is no likelihood that any directive would be passed in the field of wages because this issue has been excluded from EU competences (Article 153(5) TFEU).42 Whereas ­Article 29 only refers to the right to free access to employment services, the EPSR also refers to assistance in becoming self-employed. More interesting might be the much more elaborated approach in the EPSR to employment protection, insisting on a right to receive information on the reasons justifying dismissal (in comparison with the wording of Article 30 CFREU).43 One might hope that this will be a lever for a generic initiative of the Commission to push legislation in the field of employment protection. In my view, the prospects that the Court will refer to the EPSR and to these complementary social rights are weak. Whereas primary law referred and still refers to the Community Charter (Recital 5 of the Preamble of the TEU and Article 151(1) TFEU), no reference

39 See inter alia Deakin, ch 4 and Jacobs, ch 3 in this book. 40 See Kollonay-Lehoczky and Kresal, ch 26 in this book. 41 See COM (2017) 797: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on transparent and predictable working conditions in the European Union. 42 See Lörcher, ch 7 in this book. 43 See Schmitt, ch 23 in this book.

646  Dorssemont, Lörcher, Clauwaert and Schmitt has yet been enshrined in primary law to the existence of the EPSR. It would be appropriate to amend the Treaty accordingly. In the long run it will be up to the CJEU as an EU institution to ensure respect for and promotion of the rights enshrined in the CFREU. Deakin is sceptical about the potential effect of a symmetrical application of the proportionality test in cases of conflicts between so-called fundamental economic freedoms and Charter rights. The only ‘case’ in which such a double test was proposed by AG Trstenjak was Commission v Luxembourg. However, the Court did not apply her method, and the application of the test elaborated by the AG did not alter the detrimental nature of her opinion with regard to the preliminary questions. As is well known, such a symmetrical approach was also suggested in the so-called Monti II proposal, which now rests in peace, although still being deplored by some anonymous adoptive parents.44 This publication will hopefully contribute to convincing the CJEU to rethink its more negative approach to fundamental social rights and persuade it and all users of the Charter to take into account the arguments developed therein: the Charter is legally binding and fundamental social rights are an integral and indivisible part of general human rights protection in the EU. Let the most recent judgments of the Court of Justice related to the right to paid annual leave be the auspices of a new European Social Spring.45

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666

Index access to EU courts, 170, 178–79 collective access: arguments in favour of increased access, 177–78 direct actions, 175–77 European social partners, 178 limited nature, 175 organisations acting on behalf of identified individuals, 174 organisations acting on behalf of unidentified individuals, 174–75 preliminary ruling procedure, 175 individual access: annulment, action for, 171 damages, action for, 171 discretion of national courts, 173–74 European social partners, 172–73 limitations, 171–72 preliminary reference procedure, 173–74 sufficiently serious breach, 171 see also Court of Justice of the European Union access to goods and services: equality between men and women, 417–18 age discrimination, 185, 386, 390, 579 agency work, 81–82 Monti clauses, 488 self-employment, 90, 94 trade union associations, 320 see also temporary work annulment action, 165–66 access of individuals to EU courts, 171 human dignity, 206 anti-discrimination law, 85, 178–79, 345–46, 554 freedom of religion, 287–88 human dignity, 196, 200, 539 ILO instruments, 388 protection of whistle-blowers, 310, 628–29 right to effective remedy, 614

unjustified dismissal, 512–13 compensation, 514, 528–29 victimisation of complainants, 628–29 application of CFREU (Art. 51), 133–34 CFREU and EU institutions, relationship between, 106–8 CJEU, 108–9 CFREU and EU member states, relationship between, 109 CJEU reluctance in austerity cases, 113–16 financial assistance programmes, 113–14 implementing EU law, 110–13 legal compatibility issues, 114–16 varied application, 111–12 Explanation, 101–2 general remarks, 105–6 horizontal application, 116–20 text, 101 background and origins of CFREU, 12–15 balanced representation, 454–55 Better Regulation, 2, 3, 20 binding nature of CFREU, 1–2, 39, 109, 120, 144, 151–52, 158, 274, 328, 546, 559, 566, 603, 636, 644, 646 breaches, see litigation procedures Brexit: balancing future trade arrangements with rights, 47–48 ECHR, 45–46, 52 ECHR and CFREU compared, 46–47 House of Lords debate, 47 impact on CFREU, 45–48, 52 business structure: establishment, 97–98 undertaking, 94–97 child labour, see prohibition of child labour and protection of young people at work citizenship and workers’ rights, 84–85

668  Index collective action: Art. 153(5) TFEU, 487–89 EU institutions and member states as institutional actors, 487–90 EU institutions as employers, 486–87 limitations, 491–96 ‘political strike’, 490 right to strike and CJEU, 489–90 see also right of collective bargaining and action collective autonomy, 364–65, 366, 429–30, 431–32, 441 collective bargaining, 459, 467–68, 469–70, 472 discriminatory clauses, 472, 497–98, 503 participatory democracy, 443, 446 collective bargaining: collective autonomy, 459, 467–68, 469–70, 472 Community Charter, 471 Council of Europe, 472–74, 513–16 ECHR, 473–74, 515–16 enforcement, 498–501 ESC, 472–73, 513–15 EU institutions and member states as institutional actors, 484–86 EU institutions as employers, 481–84 EU law, 471–72 Posted Workers Directive, 472 TFEU, 471–72, 501–2 ICCPR, 476–77 ICESCR, 477 ILO, 474–76 limitations, 496–98 TFEU, 471–72, 501–2 United Nations, 476–77 UDHR, 476 see also right of collective bargaining and action collective labour rights (generally): freedom of thought, conscience and religion, 286 human dignity, 195 see also collective action; collective bargaining Community Charter of Fundamental Social Rights for Workers (Community Charter), 13, 43, 93, 141, 196, 645–46 child labour, 569 combatting discrimination, 298 equality between men and women, 406 fair and just working conditions, 539–40, 555

family and professional life, 588 freedom of assembly and association, 318, 320, 325, 327 health and safety in the workplace, 539 parental leave, 583–84 prohibition of child labour and protection of young people at work, 569 religion, 274 rest and paid leave, 540 right of collective bargaining and action, 471 right to information and consultation within the undertaking, 434, 442 right to work and to choose an occupation, 338 work/life balance, 588 young people at work, 569, 572, 573, 578 derogations, 574 compatibility of EU legislation, 18–19, 41 competition law, 55 freedom to conduct a business, 357–58 undertaking defined, 95 conscientious objection, 147, 221 freedom of thought, conscience and religion, 275, 283–84 Convention on Migrant Workers and their Families (ICRMW): non-discrimination principle, 389 Convention on the Elimination of Discrimination against Women (CEDAW), 157 equality between men and women, 408–9 family and professional life, 589, 590 non-discrimination principle, 389, 395–96, 399 prohibition of slavery and forced labour, 215 right to an effective remedy and to a fair trial, 615, 616 Convention on the Elimination of Racial Discrimination (CERD), 157 freedom of expression and information, 301 non-discrimination principle, 389, 396 Convention on the Rights of Persons with Disabilities (CRPD), 157 access to justice, 616 non-discrimination, 389, 391, 396 Convention on the Rights of the Child (CRC): family and professional life, 589, 590 prohibition of child labour and protection of young people at work, 569, 571, 577 Council of Europe, 633–34 data protection initiatives, 255

Index  669 equality between men and women, 409 fair and just working conditions: ECHR, 541–42 ESC, 541–42 family and professional life, 588–89 ECHR, 588–89 ESC, 588–89 relationship to other instruments: ECHR, 407 ESC, 407 European Pillar of Social Rights, 407 freedom of expression and information, 299 freedom of thought, conscience and religion, 277–80 freedom to choose an occupation and right to engage in work, 337–39 human dignity: European Committee of Social Rights, 197–98 ESC, 197–98 impact of the CFREU, 22–23 non-discrimination principle, 387–88 ECHR, 387 ESC, 387 European Convention on Human Rights and Biomedicine, 388 European Convention on Nationality, 388 prohibition of child labour and protection of young people at work, 570 protection in the event of unjustified dismissal, 513–16 ECHR, 515–16 ESC, 513–15 right of collective bargaining and action, 472–74 ECHR, 473–74 ESC, 472–73 right to an effective remedy and to a fair trial, 614–15 ECHR, 614–15 ESC, 614–15 right to information and consultation within the undertaking: ESC, 429–30, 434–35 see also European Convention on Human Rights; European Social Charter Council of Ministers, 13, 43 Court of Justice of the EU (CJEU), 1, 39–40 locus standi rules, 179–81 proportionality principle, 40–41 relationship with ECtHR, 48 disharmony, 50–51 freedom of association, 48–49

positive interaction, 49–50 religious symbols, 50 right to strike, 48–49 rights v principles, 22–28 role, 1–2, 40 subsidiarity principle, 39–40 use of CFREU: independent source of law, as, 184–87 interpretation of EU and national law, 181–84 see also individual rights damages, action for, 168 access of individuals to EU courts, 171 data processing of personal information: access to personal data processing, 267 consent, 265 legitimacy, 263–65 monitoring and surveillance, 263 proportionality, 265 purpose limitation, 266 right of erasure, 268 scope of application, 260 social media and personal data, 261 transparency requirements, 267 data protection: Data Protection Directive, 253, 254–55 General Data Protection Regulation, 253, 254–55, 271 access to personal data processing, 267 consent, 265 defining personal data, 259 enforcement, 270 legitimacy, 263–65 monitoring and surveillance, 263 personal data processing, 259–67 personal scope, 257–58 proportionality, 265 purpose limitation, 266 right of erasure, 268 scope of application, 260 social media and personal data, 261 transparency requirements, 267 Decent Work agenda, 198, 339–40, 346–47, 542–43 defining the social rights, 15–17 derogations, 303–5 child and young people as workers, 569, 574, 578 cultural activities, 574–75 light work, 575–76 ECHR and CFREU compared, 51 gender equality, 410, 420, 594

670  Index religious practices, 276–77 shipping sector, 438 working time, 555–56, 578 digital economy, 82–83 Dignity Title, see human dignity; prohibition of slavery and forced labour disability discrimination, 30–31, 186, 279–80, 385–86, 391, 404, 524, 586 discrimination, see non-discrimination divergence within the EU, 15–16, 34–36, 126 downgrading of social rights, 9–10, 104–5, 503–4 economic governance, 2, 53–54, 59, 635–36, 467, 480, 639, 644 effet utile, 119, 140, 457, 466, 492, 519, 635 categorisation of workers, 89 Framework Directive, 456 right to bargain collectively, 476–77 employers’ role in employment relation, 94 enforcement, 634 fair and just working conditions (Art. 31), 564–65 access to court, 565 compensation, right to, 565–66 right to complain, 565 family and professional life (Art. 33), 602–3 freedom of assembly and of association (Art. 12), 327–28 freedom of expression and information (Art. 11), 312–13 freedom of thought, conscience and religion (Art. 10), 292 freedom to choose an occupation and right to engage in work (Art. 15), 348–49 human dignity (Art. 1), 206 non-discrimination (Art. 21), 398 prohibition of child labour and protection of young people at work (Art. 32), 580–81 prohibition of slavery and forced labour (Art. 5), 224 protection in the event of unjustified dismissal (Art. 30), 533 protection of personal data (Art. 8), 270 respect for private and family life (Art. 7), 246–47 right of collective bargaining and action (Art. 22), 498–501 right to an effective remedy and to a fair trial (Art. 47), 631

right to information and consultation within the undertaking (Art. 23), 457–58 right to intellectual property (Art. 17(2)), 380 collective autonomy, 459 double level of protection, 459 Labour Inspectorate, 458–49 labour law remedies, 459–60 see also litigation procedures equal treatment, 30, 85, 124–25, 174 see also equality between men and women equality before the law (Art. 20), 384–85 Explanation, 383 text, 383 see also non-discrimination equality between men and women (Art. 23), 409 access to goods and services, 417–18 access to job or occupation, 415 area of security, freedom and justice, 402 asymmetry of gender positions, 409–10 economic origins, 402 enforcement, 423–24 Explanation, 401 field of application, 413–14 flexibility in the workplace, 415–16 human rights-orientated approach, 424–25 limitations, 422 mainstreaming, 412 parental obligations, 418–19 personal scope, 412–13 positive action requirement, 410–12 relationship to other instruments: CEDAW, 408–9 Council of Europe Instruments, 407 ECHR, 407 ESC, 407 EU instruments, 405–7 European Pillar of Social Rights, 407 ICCPR, 408 ICESCR, 408 ILO instruments, 407–8 TEC, 406 TEU, 405 TFEU, 405–6 UDHR, 408 UN instruments, 408–9 relationship to other provisions: dignity provisions, 405 freedom provisions, 405 other equality provisions, 404

Index  671 protection of children, disabled and elderly, 405 protection of family and professional life, 404–5 solidarity provisions, 405 scope, 402–3 self-employment, 417 ‘specific advantages in favour of the underrepresented sex’, 420–22 supply of goods and services, 417–18 text, 401 Equality Title, see equality; equality between men and women; non-discrimination EU law, 646 compatibility with CFREU, 18–19, 41 equality between men and women, 405–7 family and professional life: Maternity Protection Directive, 587 Parental Leave Directive, 587 Recast (Gender Equality) Directive, 588 freedom of expression and information, 298 freedom of thought, conscience and religion: regulation of religious practices, 276–77 freedom to choose an occupation and right to engage in work: TEU, 337 TFEU, 336–37 human dignity: anti-discrimination directives, 196 TEU, 196 non-discrimination: TEU, 386 TFEU, 386–87 prohibition of child labour and protection of young people at work, 569–70 Community Charter, 569 protection in the event of unjustified dismissal, 509–13 anti-discrimination directives, 512–13 Collective Redundancies Directive, 510–11 European Pillar of Social Rights, 509 information and consultation directives, 511–12 Insolvency Directive, 510 Pregnant Workers Directive, 513 TFEU, 509 Transfer of Undertakings Directive, 510

protection of personal data, 253–55 Data Protection Convention, 255 Data Protection Directive, 253, 254–55 General Data Protection Regulation, 254–55 right of collective bargaining and action, 471–72 Posted Workers Directive, 472 TFEU, 471–72, 501–2 right to an effective remedy and to a fair trial, 612–14 labour law, 613–14 recognition and enforcement of judgments, 612 TFEU, 612 right to information and consultation within the undertaking, 432–34 Community Charter, 434 TFEU, 432–33 right to intellectual property, 371–72 TFEU, 371 euro crisis, 41, 44–45, 53–55, 80, 103–5, 106–9, 112–13, 194, 347, 364, 447, 467, 479, 521, 644 European Commission, 13 impact of the CRFEU, 18–21 European Convention on Human Rights (ECHR), 2, 634 CFREU compared, 46–47, 642–43, 644–45 EU accession, 51–52 equality between men and women, 409 fair and just working conditions, 541–42 family and professional life, 588–89 freedom of assembly and of association, 318, 319–209 freedom of expression and information, 299 freedom of thought, conscience and religion, 277–78 litigation and justiciability, 279 non-interference, 279 freedom to choose an occupation and right to engage in work, 337 non-discrimination principle, 387 protection in the event of unjustified dismissal, 515–16 right to intellectual property, 372 right of collective bargaining and action, 473–74 right to an effective remedy and to a fair trial, 614–15

672  Index European Court of Human Rights (ECtHR): relationship with CJEU, 48 disharmony, 50–51 freedom of association, 48–49 positive interaction, 49–50 religious symbols, 50 right to strike, 48–49 European Labour Authority, 44, 165, 169, 611–12 economic and monetary union (EMU), 60–61, 75–78, 80 European Network of Independent Experts on Fundamental Rights, 33–34 monitoring mechanism, 36–37 European Ombudsman, 165, 168, 169, 612 European Parliament, 12–14, 35, 42, 44, 106 coordination of procedures, 485 non-discrimination, 386–87 right to petition, 168 European Pillar of Social Rights (EPSR), 37–38, 41–42, 645 Community Charter, 43 impact, 43–44 equality between men and women, 407 Monitoring the Implementation of the EPSR: Directive on Carcinogens, 44 Directive on Work-Life Balance, 44 Posted Workers Directive, 44 Regulation on European Labour Authority, 44 Whistle blowers Directive, 44 Written Statement Directive, 43–44 protection in the event of unjustified dismissal, 509 relationship with CFREU, 44–45 vagueness of rights, 45 European Social Charter (ESC), 2 equality between men and women, 407 fair and just working conditions, 541–42 family and professional life, 588–89 freedom of assembly and of association, 319–20 freedom of expression and information, 299 freedom of thought, conscience and religion, 279–80 freedom to choose an occupation and right to engage in work, 337–39 human dignity, 197–98 non-discrimination principle, 387 protection in the event of unjustified dismissal, 513–15

right of collective bargaining and action, 472–73 right to an effective remedy and to a fair trial, 614–15 European Social Fund, 42 European social partners: collective access to EU courts, 178 framework on harassment and violence at work, 196 individual access to EU courts, 171–73 preliminary reference procedure, 167 European Union: competence creep, 10–11 economic freedoms v social rights, 11 see also EU law expectations of the CFREU, 636–42 Explanations application of CFREU (Art. 51), 101–2 equality before the law (Art. 20), 383 equality between men and women (Art. 23), 401 fair and just working conditions (Art. 31), 535 family and professional life (Art. 33), 583 freedom of assembly and of association (Art. 12), 315–16 freedom of expression and information (Art. 11), 295–96 freedom of thought, conscience and religion (Art. 10), 237 freedom to conduct a business (Art. 16), 351 human dignity (Art. 1), 191 interpretation (Art. 52(7)), 143–44 level of protection (Art. 53), 139 limitations of CFREU (Art. 52(1)), 102–3 prohibition of child labour and protection of young people at work (Art. 32), 567 prohibition of slavery and forced labour (Art. 5), 209–210 protection in the event of unjustified dismissal (Art. 30), 505 protection of personal data (Art. 8), 249 respect for private and family life (Art. 7), 229 right of collective bargaining and action (Art. 22), 564 right to an effective remedy and to a fair trial (Art. 47), 609–10 right to information and consultation within the undertaking (Art. 27), 429

Index  673 right to intellectual property (Art. 17(2)), 369 scope of guaranteed rights (Art. 52), 136–38, 150–53 value of explanations, (Art. 52(7)), 150–53 failure to act, action for, 166–67 fair and just working conditions (Art. 31), 195, 566 compensation: enforcement, 565–66 night work, 560 dignified working conditions, 553–54 decent remuneration, 554–55 enforcement, 564–65 access to court, 565 compensation, right to, 565–66 right to complain, 565 Explanation, 535 field of application, 549–50 horizontal right, 547–49 limitations, 563 origins and context, 535–37, 546 personal scope, 549 relationship to other instruments: anti-discrimination, 539–40 Community Charter, 540 Council of Europe instruments, 541–42 Decent Work agenda, 542–43 ECHR, 541–42 ESC, 541–42 Framework Directive, 538–39 health and safety, 538–39 ICESCR, 544 ILO instruments, 542–44 social dialogue, 541 TFEU, 539 UDHR instruments, 544 Working Time Directive, 540, 543–44 World Health Organization, 544–45 relationship to other provisions: child labour and young people, 538 dignity provisions, 537 freedom provisions, 537–38 right not to be victimised, 563 right not to bear financial costs, 563 right to consultation and participation of workers, 561–62 right to information, 561 right to training, 562 safe and healthy working conditions, 550–52 general rights, 552 right to occupational health care, 553

right to refuse to perform work, 553 risk assessment, 552–53 text, 535 working time, 555–56 annual leave, 559–60 compensation for night work, 560 limiting maximum hours, 556–57 rest periods, 558 sick leave, 560 Working Time Directive, 540, 543–44 family and professional life (Art. 33), 603–5 background, 590–91 enforcement, 602–3 equal treatment, 593 Explanation, 583 field of application, 591–92 gender roles, 584–85 institutional assistance, 593–94 legal basis, 583–84 limitations, 601–2 maternity leave, 597–99 labour market reintegration, 601 right to be paid, 599–601 parental leave, 597–98, 599 labour market reintegration, 601 right to compensation, 599–601 positive obligations, 592 pregnancy and maternity, 595–96 relationship to other instruments: CEDAW, 589, 590 Community Charter, 588 Council of Europe instruments, 588–89 CRC, 589, 590 ECHR, 588–89 ESC, 588–89 ILO instruments, 589 Maternity Protection Directive, 587 Parental Leave Directive, 587 Recast (Gender Equality) Directive, 588 relationship to other provisions: children’s rights, 586–87 disabled people, 586 elderly people, 586 equality between women and children, 586 fair and just working conditions, 586 non-discrimination, 586 respect for private and family life, 586 shortcomings, 585–86 text, 583 unequivocal nature of rights, 592 working conditions, 594–95

674  Index flexibility in the workplace, 81–83, 97, 415–16, 519, 557, 595 forced labour, see prohibition of slavery and forced labour free movement of workers, 86–87, 318, 565–66 freedom of assembly and of association (Art. 12), 316–17, 328–29 enforcement, 327–28 Explanation, 315–16 field of application, 321 limitations, 326–27 material scope, 321 freedom not to join a trade union, 325–26 freedom to form a trade union, 321–22 freedom to join a trade union, 322–23 protection of activities and members, 324–25 trade union activities, 323–24 personal scope, 320 relationship with other instruments: ECHR, 318, 319–209 ESC, 319–20 ILO instruments, 318–19 UDHR, 319 relationship with other provisions, 317–18 text, 315 freedom of contract, 55, 65–68, 91, 358–59, 361–62, 364–65, 484 freedom of expression and information (Art. 11), 296, 313 enforcement, 312–13 Explanation, 295–96 field of application, 301–2 limitations: derogations test, 303–4 freedom of expression in the employment relation, 304–8 restriction must be prescribed by law (CFREU), 304 restriction must be prescribed by law (ECHR), 304 Trade Secrets Directive, 308–10 Whistle blowers Directive, 310–11 relationship with ECHR, 301 relationship with other instruments: CERD, 301 Council of Europe instruments, 299 ECHR, 299 ESC, 299 EU instruments, 298

ICCPR, 300 ILO instruments, 299–300 UDHR, 300 relationship with other provisions: freedom of arts and sciences, 297–98 freedom of assembly and association, 296–97 freedom of thought, conscience and religion, 297 right to freedom of expression, 302–3 right to information, 303 right to freedom of media, 303 text, 295 freedom of thought, conscience and religion (Art. 10), 281–82, 292–93 access to employment, 284–85 collective rights, 286 conscientious objection, 283–84 enforcement, 292 Explanation, 273 field of application, 282–83 limitations, 286–87 non-discrimination, 276, 288–92 proportionality, 287–88 non-discrimination, 276 direct discrimination, 288–90 indirect discrimination, 290–92 relationship to other provisions, 275–76 relationship to other instruments: Council of Europe instruments, 277–80 ECHR, 277–79 ESC, 279–80 EU instruments, 276–77 Human Rights Council, 280–81 ILO Convention No.111, 280 non-discrimination, 276 regulation of religious practices, 276–77 UN instruments, 280–81 termination of employment, 284–85 text, 273 wearing religious symbols, 284, 285–86 freedom to choose an occupation and right to engage in work (Art. 15), 195, 349–50 access to decent work, 346–47 access to vocational training, 346 enforcement, 348–49 Explanation, 331–32 field of application: material scope, 342–43 personal scope, 341–42

Index  675 freedom from coercion, 346 freedom to enter and pursue a chosen trade or occupation, 343–44 freedom to seek, accept and perform employment, 344–45 limitations, 348 protection against discrimination, 345–46 relationship with other instruments: Council of Europe instruments, 337–39 ECHR, 337 ESC, 337–39 EU instruments, 336–37 ICESCR, 332–34, 340–41 ILO Decent Work agenda, 339–40 TEU, 337 TFEU, 336–37 UN instruments, 340 relationship with other provisions, 334–35 freedom to conduct business, 335–36 text, 331 freedom to conduct a business (Art. 16), 365–67 application, 357 applicability to public enterprises/stateowned companies, 357–58 enforcement, 364–65 Explanation, 351 field of application, 359 freedom of contract, 358, 361–62 interpretation, 351–52, 356–57 judicial discretion, 355 limitations, 363 origins, 355 relationship with other instruments: domestic law, 354–55 TFEU, 353–54 relationship with other provisions, 352–53 freedom to choose an occupation and right to engage in work, 335–36 right to own property, 359–61 scope, 355–56 text, 351 Freedoms Title, see freedom of assembly and association; freedom of thought, conscience and religion; freedom to choose an occupation and right to engage in work; freedom to conduct a business; protection of personal data; protection of private and family life; right to intellectual property

gender equality, see equality between men and women General Data Protection Regulation, 253, 254–55, 271 defining personal data, 259 enforcement, 270 personal data processing, 259–60 access to personal data processing, 267 consent, 265 legitimacy, 263–65 monitoring and surveillance, 263 proportionality, 265 purpose limitation, 266 right of erasure, 268 scope of application, 260 social media and personal data, 261 transparency requirements, 267 personal scope, 257–58 see also data processing; data protection genuine economic activity, 87–88 harmonisation, 32–33, 36–37, 63–64 collective bargaining, 442–43, 472, 484 data protection measures, 253–54 intellectual property protection, 371–72, 379, 380 minimum-standards harmonisation, 78, 111–12 private law, 478–79 rest and leave, 540 unjustified dismissals, 509–10 health and safety of workers, 12–13, 85–86, 176–77, 196, 200, 454, 537 balanced participation, 440–42 balanced representation, 454–55 fair and just working conditions, 538–39 harassment and violence at work, 554, 563 human dignity and decent work, 536–37, 546 protection of personal data, 250, 264, 266, 450 seagoing vessels, 437 training, 460 unjustified dismissals, 513, 596 see also fair and just working conditions horizontal application of CFREU, 116–20, 122–23, 143–44, 149, 182, 361, 640–41 age discrimination, 390 fair and just working conditions, 547–49, 559 limitations to CFREU, 125–26, 422, 462 right to effective remedy, 617, 620 unjustified dismissal, 519

676  Index human dignity (Art. 1), 206–7 CJEU not invoking, 201–2 enforcement, 206 Explanations, 191 general remarks, 191–92 context (generally), 192 context (labour relations), 193 context (labour rights), 193–94 defining human dignity, 192–93 labour relations, 199 dynamic nature, 199 field of application, 200 rights protecting workers’ interests, 201 scope, 199–200, 202–3 workers as human beings, 203–4 limitations, 204–5 non-violability, 205 restriction on economic freedoms, 205 relationship with other provisions: collective labour rights, 195 equality principle, 195 fair and just working conditions, 195 freedom to choose an occupation, 195 prohibition of slavery and forced labour, 194, 212 prohibition of torture and inhuman or degrading treatment, 194 protection of personal data, 195 respect for private and family life, 195 relationship with other relevant instruments: anti-discrimination directives, 196 Council of Europe instruments, 197–98 EU instruments, 196 European Commission of Social Rights, 197–98 European Social Charter, 197–98 ILO instruments, 198 TEU, 196 UDHR, 198–99 UN instruments, 198–99 text, 191 impact assessments, 18–20, 37 infringement procedure, 167–68 integration of social rights, 9–11, 13–14 creation of CFREU, 15–17, 103–5 intellectual property, right to, see right to intellectual property internal market law, 61–64, 79–80 absolute restrictions of internal market, 64–65 freedom to conduct business, 65–68

pre-emptive effect, 65 proportionality test, 65 comparative restrictions, 68–69 proportionality principle, 70–75 restrictions, 64–65 absolute restrictions, 65–68 comparative restrictions, 68–69 social policy, relationship with, 60 International Covenant on Civil and Political Rights (ICCPR): equality between men and women, 408 freedom of expression and information, 300 non-discrimination principle, 389 prohibition on slavery and forced labour, 214 respect for private and family life, 233 right of collective bargaining and action, 476–77 right to an effective remedy and to a fair trial, 615 International Covenant on Economic, Social and Cultural Rights (ICESCR), 9–10 equality between men and women, 408 fair and just working conditions, 544 freedom to choose an occupation and right to engage in work, 332–34, 340–41 non-discrimination principle, 389 prohibition of child labour and protection of young people at work, 571 protection in the event of unjustified dismissal, 517 right of collective bargaining and action, 477 right to an effective remedy and to a fair trial, 615–16 right to intellectual property, 372–74 international human rights instruments, importance of, 141–42, 160–61 International Labour Organization (ILO): data protection Code of Practice, 255–56 fair and just working conditions, 542–44 family and professional life, 589 freedom of assembly and of association, 318–19 freedom of expression and information, 299–300 freedom of thought, conscience and religion, 280 freedom to choose an occupation and right to engage in work, 339–40 ILO Decent Work agenda, 339–40 human dignity, 198 non-discrimination principle, 388

Index  677 prohibition of child labour and protection of young people at work, 570 prohibition on slavery and forced labour, 214 protection in the event of unjustified dismissal, 516–17 right of collective bargaining and action, 474–76 right to an effective remedy and to a fair trial, 615 right to information and consultation within the undertaking, 435 interpretation principles, 139–40, 159 CJEU application of, 157–59 general principles, 140–41 EU law elements, 141 international human rights instruments, importance of, 141–42 specific principles, 142 corresponding rights to ECHR rights (Art. 52(3)), 145–47 Explanations (Art. 52(7)), 143–44, 150–53 level of protection (Art. 53), 154–57 Preamble, 142–43 principles (Art. 52(5)), 148–50 references to national laws and practices (Art. 52(6)), 150 rights based on constitutional traditions (Art. 52(4)), 147 rights corresponding with primary EU law (Art. 52(2)), 144–45 scope and interpretation (Art. 52), 143–54 interpreting EU and national law: CFREU as a tool, 181 application of social rights, 183–84 general principles of EU law, 182–83 scope of EU secondary law, 181–82 judicial discretion, 50, 72–73, 115, 126, 129–30, 184–87 national courts, 173–74, 367 judicial enforcement, see litigation procedures judicial review, 165, 179–80, 188 actions for damages, 168 actions for failure to act, 166–67 annulment actions, 165–66 infringement procedure, 167–68 other procedures, 168–70 preliminary reference procedure, 167 Justice Title, see right to an effective remedy and to a fair trial

labour inspection, 67, 458–59, 550–51, 564, 580–81, 615, 631 labour law: workers right to information and consultation, 459–60 Laval case, see Viking and Laval cases legal aid, 177, 611, 629–30 legal effects of fundamental social rights, 61 legal opportunity structure: judicial access, 163 material law, 163–64 procedural law, 163 Legal Service of the Commission, 20–21 legality principle, 40, 122–24 legislative and policy agenda, 32–37 level of protection (Art. 53): general principles, 153 Explanation, 139 impact on other CFREU provisions, 157 relationship with other human rights instruments, 154–56, 157 European Social Charter’s role, 156 non-interference guarantee, 153–54 text, 136 limitations of CFREU (Art. 52(1)), 133–34 essence test, 131–33 Explanation, 102–3 general remarks, 120–21 legitimate objectives objectives of general interest, 124–25 protection of rights and freedoms, 124, 125–26 proportionality principle, 126–29 margin of appreciation, 129–30 ‘provided for by law’, 122–23 breaches of CFREU, 23–24 text, 101 litigation procedures: access to EU courts, see access to EU courts annulment action, 165–66 complaints to European Ombudsman, 169 damages, action for, 168 European Labour Authority, 169 failure to act, action for, 166–67 infringement procedure, 167–68 legal opportunity structure, 163–64 mediation, 169 preliminary reference procedure, 167 right of petition, 168 locus standi rules, 172–73, 179–81, 187, 498–99

678  Index margin of appreciation, 29, 50, 129–30, 446–47 conscientious objection, 283–84 freedom of religion, 279 maternity leave, 597–99 labour market reintegration, 601 right to be paid, 599–601 see also paternity leave maternity protection: international instruments, 587–89 Maternity Protection Directive, 587 Parental Leave Directive, 587 Pregnant Workers Directive, 513 mediation, 169 medical examinations and screening, 235–36 member states’ relationship with CFREU, 109 CJEU reluctance in austerity cases, 113–16 financial assistance programmes, 113–14 implementing EU law, 110–13 legal compatibility issues, 114–16 varied application, 111–12 migrant workers, 299, 349–50 equal treatment, 407 minimum level of protection, see level of protection minimum standards harmonisation, 78 monitoring of communications in the workplace, 240 adequate safeguards, 242 camera surveillance, 242–45 consequences, 242 degree of intrusion, 242 electronic communications, 241 legitimate reasons, 242 prior notification, 242 telephone surveillance, 240–41 monitoring of fundamental rights, 33–37 mutual recognition, 62, 484–85 negotiation, 441, 453 night work, 542, 543–44, 556, 560 children and young people, 569, 577–78 non-discrimination (Art. 21), 86–87, 389, 393–95, 398–99 age discrimination, 390 direct effect, 390–91 direct v indirect discrimination, 288–90, 396 freedom of thought, conscience and religion, 288–92 disability discrimination, 385–86, 391 discrimination based on nationality, 385, 397

enforcement, 398 equal pay, 389 field of application, 391–93 formal v substantive discrimination, 396 freedom of thought, conscience and religion (Art. 10), 276 direct discrimination, 288–90 indirect discrimination, 290–92 grounds of discrimination, 385 limitations, 397 positive obligations, 395–96 relationship with other instruments: CEDAW, 389, 395–96 CERD, 389, 396 Council of Europe instruments, 387–88 ECHR, 387 ESC, 387 EU instruments, 386–87 European Convention on Human Rights and Biomedicine, 388 European Convention on Nationality, 388 ICCPR, 389 ICESCR, 389 ICRMW, 389 ILO instruments, 388 TEU, 386 TFEU, 386–87 UDHR, 389 relationship with other provisions: equality, 385 freedom of movement and residence, 386 freedom of thought, conscience and religion, 276, 288–92 freedom to choose an occupation and right to engage in work, 345–46 persons with disabilities, 385–86, 391 protection in the event of unjustified dismissal, 512–13 right to asylum, 386 religious discrimination, 390 text, 383–84 normative justiciability of social rights, 16–17 open method of coordination, 423, 603 opt-outs: Protocol 30, 24–25 Organisation for Economic Cooperation and Development (OECD): data protection initiatives, 256–57 origins of CFREU social rights, 12–15, 39 overtime, 219, 578

Index  679 parental leave, 418–19, 597–98, 599 labour market reintegration, 601 right to compensation, 599–601 parental obligations, 418–19 participatory democracy, 430, 443–44 Polish opt-out, 24–26 positive duties and obligations, 9–11, 116, 120–21, 470, 548 discrimination, 385, 395–96, 404, 408–9 equality between men and women, 404, 408–9, 410–12, 595–96 freedom of religion, 284, 404 imposition by the CJEU, 29–32 negative duties compared, 28 promotion of rights and principles, 28–29 protection of family and professional life, 591–92, 601–2 slavery and forced labour, 216–17 unjustified dismissal, 533 posted workers, 44, 79, 625–26 EU law, 44, 180, 288, 472 Preamble: interpretation principles, 142–43 text, 135 pre-emption, 78–80 pregnancy and maternity, 595–96 see also maternity leave; paternity leave preliminary reference procedure, 167 access of individuals to EU courts, 173–74 collective access to EU courts, 175 prohibition of child labour and protection of young people at work (Art. 32): background, 567–68, 571–72 ban on child labour: cultural activities, 574–75 derogations, 574–76 light work, 575–76 minimum age, 572–73 ‘more favourable’ exception, 573–74 outside EU, 581 definition of child labour, 568 enforcement, 580–81 Explanation, 567 field of application, 572 limitations, 579–80 relationship to other instruments, 569 Community Charter, 569 Council of Europe instruments, 570 CRC, 571 directives, 569–70 EU instruments, 569–70 ICESCR, 571

ILO instruments, 570 UN instruments, 571 relationship to other provisions: freedom to conduct a business, 569 non-discrimination, 569 right to work, 569 rights of the child, 568–69 text, 567 young workers’ rights: protection against economic exploitation, 578 protection against harmful work, 579 regulation, 577 working conditions, 576–77, 577–78 prohibition of slavery and forced labour (Art. 5), 224–25 context, 210–11 scope of problem, 211 modern slavery, 210–11 debt bondage, 211 forced labour, 211 trafficking, 211 coercion, 211 criminalisation of trafficking, 215 defining forced and compulsory labour, 215 enforcement, 224 Explanation, 209–10 field of application, 216 limitations: compulsory military service, 221 civic obligations, 221–22 work in detention, 222–23 service during emergency or calamity, 223–24 material scope: forced and compulsory labour, 218–20 human trafficking, 220–21 servitude, 218 slavery, 217 positive obligations, 216–17 relationship with other instruments CEDAW, 215 Council of Europe instruments, 213 CRC, 215 ECHR, 213 EU Strategy for the Eradication of Trafficking in Human Beings, 213 ICCPR, 214 ILO instruments, 214 TFEU, 212–13 UDHR, 214 UN instruments, 214–15

680  Index relationship with other provisions: human dignity, 194, 212 inhuman and degrading treatment, 212 non-refoulement, 212 right to asylum, 212 right to choose an occupation, 212 sexual discrimination, 212 solidarity rights, 212 text, 209 prohibition of torture and inhuman or degrading treatment: human dignity, 194 prohibition of slavery and forced labour, 212 proportionality principle, 40–41, 65, 126–29 application of internal market law, 70–75 data protection, 265 double proportionality test, 73–74 freedom of thought, conscience and religion, 287–88 internal market law, 65, 70–75 margin of appreciation, 129–30 protection in the event of unjustified dismissal (Art. 30), 534 challenging dismissals, 526–27, 527–28 defence and right to be heard, 529–30 enforcement, 533 EU initiatives, impact of, 507–8 Explanation, 505 field of application, 521–23 general framework, 517–19 justification, 524 economic grounds, 525 personal grounds, 525 valid grounds, 524–25 limitations, 530–33 material scope, 523–24 narrow application, 506 national legislations, 506–7 notice of dismissal, 529 origins, 505–6 personal scope, 519–21 relationship to other instruments: anti-discrimination directives, 512–13 Collective Redundancies Directive, 510–11 Council of Europe instruments, 513–16 ECHR, 515–16 Employment Directives, 510 ESC, 513–15 EU instruments, 509–13 European Pillar of Social Rights, 509

ICESCR, 517 ILO instruments, 516–17 information and consultation directives, 511–12 Insolvency Directive, 510 Pregnant Workers Directive, 513 TFEU, 509 Transfer of Undertakings Directive, 510 UN instruments, 517 relationship to other provisions: family and professional life, 509 right to effective remedy, 509 right to engage in work, 508 reasons for dismissal: right to be informed, 525–26 right to appropriate remedy, 526–27 compensation, 528–29 reinstatement, 528 text, 505 protection of personal data (Art. 8), 271 consent, 265 employment context, 250, 254–55 enforcement, 270 Explanation, 249 general remarks, 257 limitations, 269–70 personal data processing, 259–60 access and rectification, 267–69 fairness, 266–67 legitimacy of, 263–65 purpose limitations, 266 relationship to other provisions, 251 freedom of expression and information, 252 freedom to conduct a business, 252–53 human dignity, 195 non-discrimination, 253 respect for private and family life, 231, 251–52 relationship to other instruments, 253 Council of Europe instruments, 255 Data Protection Convention, 255 Data Protection Directive, 253, 254–55 EU instruments, 253–55 General Data Protection Regulation, 254–55 ILO Code of practice, 255–56 OECD, 256–57 UN instruments, 256 scope: individual/personal scope, 257–59

Index  681 monitoring and surveillance, 262–63 personal data defined, 259 personal data processing, 259–60 social media and personal data, 261–62 text, 249 protection of personal integrity, 235–36 protection of reputation, 237 protection of the home, 235 Protocol No. 30, 24–26 see also Poland; United Kingdom REFIT, 2, 43–44 religion and religious freedom, 274–75 see also freedom of thought, conscience and religion (Art. 10) remote working, see teleworking remuneration, 12, 88 see also fair work and conditions respect for private and family life (Art. 7), 247–48 employment context, 230 monitoring of communications, 240–45 off-duty conduct, 237–39 right to private life, 237–39 right to professional life, 239–40 enforcement, 246–47 Explanation, 229 field of application, 234–35 general remarks, 233–34 limitations, 245–46 meaning of right to private life, 230 protection of personal integrity, 235–36 protection of reputation, 237 protection of the home, 235 reasonable privacy expectations, 233 relationship to other instruments: Council of Europe instruments, 232–33 UN instruments, 233 relationship to other provisions: freedom of expression and information, 231–32 human dignity, 195 protection of personal data, 231 text, 229 right of collective bargaining and action (Art. 22), 477–79, 501–4 autonomy of social partners, 499 third-party interventions, 500–1 background, 466–67 collective action: Art. 153(5) TFEU, 487–89

EU institutions and member states as institutional actors, 487–90 EU institutions as employers, 486–87 limitations, 491–96 ‘political strike’, 490 right to strike and CJEU, 489–90 collective bargaining: EU institutions and member states as institutional actors, 484–86 EU institutions as employers, 481–84 limitations, 496–98 enforcement, 498–501 Explanation, 465 field of application, 479–80 limitations, 490–91 collective action, 491–96 collective bargaining, 496–98 relationship to other instruments: Community Charter, 471 Council of Europe instruments, 472–74 ECHR, 473–74 ESC, 472–73 EU instruments, 471–72 ICCPR, 476–77 ICESCR, 477 ILO instruments, 474–76 Posted Workers Directive, 472 TFEU, 471–72, 501–2 UDHR, 476 UN instruments, 476–77 relationship to other provisions: solidarity provisions, 469 remuneration, 470 right to bargain collectively: EU institutions and member states as institutional actors, 484–86 EU institutions as employers, 481–84 right to collective action: Art. 153(5) TFEU, 487–89 EU institutions and member states as institutional actors, 487–90 EU institutions as employers, 486–87 ‘political strike’, 490 right to strike and CJEU, 489–90 solidarity, 468 Staff Working Document, 467 text, 465 right of petition, 168, 612 right to an effective remedy and to a fair trial (Art. 47), 631 enforcement, 631

682  Index Explanation, 609–10 field of application, 617–19 limitations, 630–31 non-discrimination cases, 616–17 procedural nature, 610–11 relationship to other instruments: CEDAW, 615 Council of Europe instruments, 614–15 CRPD, 616 ECHR, 614–15 ESC, 614–15 EU law, 612–14 ICCPR, 615 ICESCR, 615–16 ILO instruments, 615 labour law, 613–14 recognition and enforcement of judgments, 612 TFEU, 612 UDHR, 615 relationship to other provisions, 611–12 right to a fair trial, 620–21 right to access to court, 622–23 right to an adversarial hearing, 625–26 right to an independent and impartial judicial body, 621–22 right to equality of arms, 624–25 right to know reasons for alleged measure, 623 right to legal costs, 623–24 right to preliminary ruling, 627 right to prohibition against victimisation, 628–29 right to prompt implementation of decisions, 627–28 right to timely fair trial, 626–27 right to an independent and impartial judicial body: principle of independence, 621 right for lay judges to sit, 622 right to effective remedy, 619–20 right to legal aid, 629–30 text, 609 right to be heard, 441, 446, 448 protection in the event of unjustified dismissal, 529–30 right to information and consultation within the undertaking (Art. 27), 439–40, 460–63 ambiguity, 431 collective autonomy, 429–30, 459 confidentiality, 439

consultation model, 451–52 balanced representation, 454–55 effet utile, 456 ‘exceptional circumstances or decisions’, 454 fundamental requirements, 452–53 health and safety of workers, 454 negotiation, 453 procedure, importance of, 453–54 enforcement, 457–58 collective autonomy, 459 double level of protection, 459 Labour Inspectorate, 458–49 labour law remedies, 459–60 evolution, 433 Explanation, 429 field of application, 439 health and safety, 442 ideological roots, 430 information, form of: completeness, 448–49 timeliness, 449–50 information and consultation, 440 balanced participation, 440–41 involvement, 440 right to negotiate, 441 transparency, 441 limitations, 456–57 material scope: public sector, 436 seagoing vessels, 437–38 fishing vessels, 437 exclusion, 437–38 national thresholds, 444 undertaking and establishment, 444–46 personal scope, 446–48 origins, 431 participatory democracy, 430, 443–44 relationship with other instruments: Community Charter, 434 Council of Europe instruments, 434–35 ESC, 429–30, 434–35 EU instruments, 432–34 ILO instruments, 435 TFEU, 432–33 relationship with other provisions: solidarity provisions, 431–32 right holders, 442–43 Tendenzschutz, 438–39 text, 429 workers and their representatives, 435–36

Index  683 right to intellectual property (Art. 17(2)), 380 authors’ rights, 373, 374–75 moral interests of authors, 373 authorship of computer programmes and databases, 376–77 enforcement, 380 Explanation, 369 field of application, 375–76 limitations, 380 origins, 369–70 protection of material interests: authors’ remuneration, 377–79 worker intellectual property, 379 protection of moral interests, 373, 377 relationship to other instruments: Council of Europe instruments, 372 ECHR, 372 EU instruments, 371–72 Hague Convention, 374 ICESCR, 372–74 Paris Convention, 374 TFEU, 371 UDHR, 372, 373 UN instruments, 372–74 relationship to other provisions, 370–71 text, 369 right to strike, 16, 41, 48–49, 76–77, 127 see also collective action; collective bargaining; freedom of assembly and of association; Viking and Laval cases rights and principles compared, 26–28, 634–35 CJEU, 22–24 imposition of positive duties, 29–32 ‘Solidarity Rights’, 24–28 Poland and UK opt-out, 24–26 rule of law, 33, 124, 192, 196, 384 scope of guaranteed rights (Art. 52): constitutional traditions, rights based on, 147 ECHR rights, rights corresponding to, 145–47 EU primary law, rights corresponding to, 144–45 Explanation, 136–38 Explanations, value of, 150–53 general principles, 140–41 EU law elements, 141 international human rights instruments, importance of, 141–42 general remarks, 143–44

interpretation, 153 general principles, 140–42 specific principles, 142–57 limitations, see limitations of CFREU national laws and practices, references to, 150 principles and rights distinguished, 148 general principles of EU law, 148 ‘rights’, 149–50 specific principles, 142 level of protection, 154–57 Preamble, 142–43 scope and interpretation (Art. 52), 143–54 self-employment: equality between men and women, 417 interpretation by CJEU, 92–94 subordination distinguished, 89–91 sexual discrimination, 385–86, 404–5, 416, 596 equal pay, 389 forced marriage, 212 see also equality between men and women; non-discrimination slavery, see prohibition of slavery and forced labour social constitution of the EU, 53–55, 80 economic constitution compared, 55–57 European Monetary Union, 75–78 freedom to conduct business, 65–68 internal market law, 61–64 absolute restrictions of internal market, 64–68 comparative restrictions, 68–69 proportionality principle, 70–75 restrictions, 64–69 social policy, relationship with, 60 lack of, 57 legal effects of fundamental social rights, 61 minimum-standards harmonisation, 78 pre-emptive effect, 65, 78–80 proportionality test, 65 significance, 57–59 social policy: EMU processes, relationship with, 60 law of the internal market, relationship with, 60 rule-making powers of EU and member states, 60 social market economy, 55–56, 65, 333, 365, 367 Social Policy Title, 57–59

684  Index social security: family and professional life, 593–94 Solidarity Rights Title, see fair and just working conditions; family and professional life; prohibition of child labour and protection of young people at work; protection in the event of unjustified dismissal; right of collective bargaining and action; right to information and consultation; sources of law CFREU as, 184–87 subordination of the worker, 88–89 subsidiarity principle, 39–40, 76, 106, 150, 326, 437, 447, 579, 617

right of collective bargaining and action, 471–72, 501–2 right to an effective remedy and to a fair trial, 612 right to information and consultation within the undertaking, 432–33 right to intellectual property, 371 Treaty of Amsterdam, 14 Treaty on European Union (TEU), 34–35, 635 equality, 384 equality between men and women, 405 non-discrimination principle, 384, 386 human dignity, 196 freedom to choose an occupation and right to engage in work, 337

teleworking, 81–83, 594–95 temporary work, 82, 416, 512, 524–25 see also agency work termination of employment, see protection in the event of unjustified dismissal third country nationals: non-discrimination, 392–93 right to work, 337, 342–45, 348 slavery and forced labour, 212, 216 trafficking: European Strategy for the Eradication of Trafficking in Human Beings, 213 prohibition of slavery and forced labour (Art. 5), 211 criminalisation of trafficking, 215 material scope, 220–21 see also prohibition of slavery and forced labour trade secrets, protection of, 302, 376 EU law, 298, 308–11, 313 enforcement, 312–13 trade unions, 1–2 see also freedom of assembly and association Treaty on the Functioning of the EU (TFEU), relationship to: equality between men and women, 405–6 fair and just working conditions, 539 freedom to conduct a business, 353–54 freedom to choose an occupation and right to engage in work, 336–37 non-discrimination, 385, 386–87 prohibition on slavery and forced labour, 212–13 protection in the event of unjustified dismissal, 509

undertakings: CJEU interpretation, 96 competition law interpretation, 95 information and consultation with undertakings, 97 legal concept, 94–95 status, 96 types, 95 United Kingdom opt-out, 24–26 United Nations: CEDAW, see Convention on the Elimination of all Forms of Discrimination against Women CERD, see Convention on the Elimination of all Forms of Racial Discrimination CRC, see Convention on the Rights of the Child data protection initiatives, 256 equality between men and women, 408–9 freedom to choose an occupation and right to engage in work, 340 Human Rights Council: freedom of thought, conscience and religion, 280–81 protection in the event of unjustified dismissal, 517 right of collective bargaining and action, 476–77 right to intellectual property, 372–74 UDHR, see Universal Declaration of Human Rights United Nations conventions, see individual conventions

Index  685 Universal Declaration of Human Rights (UDHR), 9 equality between men and women, 408 fair and just working conditions, 544 freedom of assembly and of association, 319 freedom of expression and information, 300 human dignity, 198–99 non-discrimination principle, 389 prohibition on slavery and forced labour, 214 respect for private and family life, 233 right of collective bargaining and action, 476 right to an effective remedy and to a fair trial, 615 right to intellectual property, 372, 373 Viking and Laval cases, 48–51, 61, 63–64, 127–30, 183, 185, 288, 348, 366–67, 466–67, 489–90, 493–95, 644 proportionality test, 74–75, 286 vocational training, right to, 346 whistle blowers, 44, 308–11, 563, 628–29 anti-discrimination law, 310, 628–29 Whistle blowers Directive, 44, 310–11 workers: citizenship and workers’ rights, 84–85

CJEU definition, 86–87 equal treatment, 85 free movement, 86 general concept, 83–84 human beings, workers as, 203–4 legal concept, 84 lack of consistent definition in EU law, 84–87 non-discrimination, 86–87 rights protecting workers’ interests, 201 secondary law, 85–86 working time (Art. 31(2)), 555–56 compensation for night work, 560 fair and just working conditions, 540, 543–44 limiting maximum hours, 556–57 rest and paid leave, 540 annual leave, 559–60 rest periods, 558 sick leave, 560 Working Time Directive, 540, 543–44 World Health Organization (WHO): fair and just working conditions, 544–45 young workers, see prohibition of child labour and protection of young people at work

686