Perspectives of European labour law

Manfred Weiss, Goethe University Frankfurt

» Full paper: ilera-2019-paper-15-Weiss.pdf

The original Treaty of the European Economic Community (EEC) of 1957 did not provide legislative power on labour law to the European legislator. Hoping that social progress will come automatically by the success of the common market, this subject matter was left exclusively to the Member States (MS). In the seventies of last century first Directives on labour law were passed, based on articles which had nothing to do with labour law and which required unanimous voting by all MS. This practice came to an end when Thatcher in 1979 became Prime Minister of the UK. Afterwards comprehensive powers to legislate on labour law were established by several amendments. Only pay, freedom of association, the right to strike and to lock-out remain until today exclusively in the hands of the MS. For many topics qualitative majority vote has been introduced instead of unanimous voting. This development has been strengthened by establishing fundamental social rights in the Charter of Fundamental Rights of the European Union (EU). There are many Directives on  individual labour law. In collective labour law a whole set of Directives on workers’ participation has been passed. Thereby a set of minimum conditions to be respected in each MS has been established. However it is still very fragmentary. Many topics are not covered. This led to very negative consequences particularly for Southern European countries in the course of austerity politics during the management of the financial crisis.

The paper will mainly reflect on the question what future of European labour law can be expected. Due to the heterogeneous structure of the (still) 28 MS it has become very difficult to even get a qualified majority for further “hard law” in labour matters. In order to overcome the stagnation the European Community (EC) and later on the EU relied on “soft law” strategies (Lisbon strategy and Europe 2020). Ambitious goals were combined by ambiguous catchwords (flexicurity, employability etc.) to pave the way for reforms in the MS. The open method of coordination was the instrument to be used in order to learn from each other. These “soft law” strategies were embedded in the mechanisms of macro-economic governance (MEC) focusing primarily on economic efficiency. Labour regulation in this perspective only was a residual category shaped by the primacy of MEC. This explains why these “soft law” strategies mainly became an instrument of deregulation in the MS, with very different effects from MS to MS. This is one of the reasons for the EU’s legitimacy crisis: it lacks a social profile and is widely considered to be rather a project for big business.

The focus of the paper, therefore, has to be on the question whether the European Pillar of Social Rights (EPSR), initiated by President Juncker in 1915 and passed  as a joint declaration of the Commissen, the European Parliament and the Council in November 2017 at the summit in Goeteborg, might bring a change. The EPSR is divided in three chapters, listing up 20 areas to be regulated, for each of them establishing principles and rights.

The EPSR again is a legally non binding “soft law” declaration (Art. 292 TFEU), mainly encouraging the MS to establish the mentioned rights on national scale. If for example the right to minimum wage is mentioned, the EU has no legislative power, consequently only the MS can promote this right. Therefore, by some critics the EPSR is considered merely to be an alibi. Such an approach, however, ignores the new quality of the EPSR which consists in the attempt to understand social policy as a strategy of its own right, disconnected from the dictatorship of mere economic efficiency. Or to put it differently: The EPSR is a concept of a comprehensive social profile putting the working human being in the centre. However, as much as this signal is to be welcomed, as much the question remains whether it has chances to be realized to its full extent. Therefore, the paper will have to reflect on the potential of the EPSR for the future of European labour law.

The analysis, however, cannot remain merely on the EPSR. The possibilities to establish further EU wide “hard law” minimum conditions will have to be discussed: (a) the role of the Court of Justice of the EU (CJEU); (b)  Enhanced Cooperation (Art. 20 TEU, 320 to 334 TFEU);(c) Further extension of legislative powers and (d) Facilitation of the legislative procedure. This comprehensive analysis combined with the EPSR will provide a full picture on what can realistically be expected for the future.