A new era for labour and social rights in EU law

Perspectives, challenges and growing concerns

Márton Leó Zaccaria, University of Debrecen
Sipka Peter, University of Debrecen

This paper examines some significant and relevant questions of labour law and social law in the law of the European Union (EU). The starting point is that we can observe an intense and serious process regarding the modernisation of social rights in EU law, or at least, some major changes. Although, these new directions can lead the social and employment policy of the EU to new places, it is known that it seems almost impossible to achieve a real turning point in EU law because of the power and different interests of the Member States in such questions. Our research is focused on the possible new directions that EU labour and social law can take, namely a new “era” when social protection and a fairer labour market seems to become more important than ever. The reasons behind this possible paradigm shift are complex and varied because the whole society and especially the economic structure, along with the players of the labour market are changing. Furthermore, it is possible that labour law based on the traditional social protection cannot play its part anymore to the previous extent. Thinking of the new ways of employment relationships, the more and more digital everyday life and work, or the changing measures of the work-life balance, we can easily conclude that something serious has to be done. Sketchily, we can see two ways for the close future of labour and social rights.

First, we can choose to witness their slow decay and watch them fade away in the shadows of the new, non-traditional ways of employment relationships and regulations such as gig economy, crowd work, platform work, etc. With this scenario, we have to admit that labour law and social law are not functional anymore and of course – taking into account the traditional difficulties in the regulations – EU law cannot increase anymore the level of legal protection for workers. Although, the minimum standards are required anyway but the well-known toolkits of worker protection do not seem desirable or effective in the labour market. Second, we can focus on the importance of the social side of employment and find the real guarantees that can protect the workers to the minimum extent at least. The changing economic and labour market circumstances do not mark the end of the line for the development labour and social regulations necessarily, on the contrary: they can highlight the old-new needs for a consequent, stable and effective employment law regulation. We believe that the latter is happening because through the European Pillar of Social Rights (EPSR) it seems clear that the European Commission is trying to make the employment regulations more adaptive to the challenges of the changing times in employment and make the legal status of workers more powerful than ever. Although, this concept also has its flaws, our research is primarily focused on the expected positive outcomes of these social changes in EU law.

Therefore, this is why the first pillar in our analysis in this possible new era is “perspectives”. We think that there is no use thinking about what is not working anymore in the traditional labour and social law protection but rather to think about the new ways of protection is more important in our research. Of course, we take into consideration the classical legal development of the EU social policy such as free movement, equal treatment, regulation of working time, etc. but we also try to work with new ideas based on the EPSR protecting the workers interests and rights. Such regulative perspectives can set the fundamental principles and methods for that desired new era in social policy. “Challenges” are also present in our paper because we know that the regulation of EU social policy has been very difficult and complex in EU law since the Treaty of Rome and these difficulties have their negative effects even nowadays. Inconsistencies in the case law of the Court of Justice of the European Union (CJEU), defeats of fundamental social rights against economic rights (right to work, right to take collective action, stc.), uncertainty in the relevant directives (for example concept of working time) are all challenges that labour and social rights need to overcome with the help of the EPSR. Our research is partly based on the hardships of EU social policy to formulate conclusions for the possible new directions. “Growing concerns” mostly come from the failures of the employment regulations and the aforementioned general negative approach regarding labour and social rights. Creating relevant new laws in this field is not easy and the labour market is not waiting for the legislator to catch up. We can witness more and more new labour market and workplace problems that need to be tackled by the labour and social law regulation somehow. Platform work is a good example because although its regulation may be in the making but the characteristics of this kind of employment are evolving so fast that even a possible new law can easily be outdated very soon.

The context of the above is the following: the recent case-law of the CJEU regarding the fundamental labour and social rights laid down in the Charter of Fundamental Rights of the European Union (CFREU), the European Pillar of Social Rights (EPSR) as the framework for new and modern initiatives in the field of developing fundamental labour and social rights and the already known or planned reforms in EU social and employment policy such as the new regulation of posting of workers and employer’s written statement. Further areas, where new regulations and policies are likely to emerge – such as the Working Time Directive or social coordination – are also emphasised. The paper’s approach is based partly on theoretical jurisprudential methods since the different viewpoints can lead us to possible new ways of thinking.