T2-05: European governance: Legal aspects

Freedom of speech and legality before the European Court of Human Rights

Stefano Maria Corso, University of Urbino

Regardless of potential retaliation on the workplace, on one hand, and of the increasing awareness, on the other, of the fact that the workplace must be (or become) a place where individuals can fully exercise their right to freedom of speech, the protection of workers’ voice, whistleblowing and its recognition as a social right have been only recently discussed by the European Court of Human Rights.

This paper shall be arranged in five chapters, starting with this introduction.

The First and the Second chapters briefly review the steps that led the Court of Strasbourg to investigate the issue through appeals regarding the alleged violation of the right to freedom of expression, protected under Article 10 of the European Convention on Human Rights. Gradually, the fields of application of the regulation were further extended and supplemented and, to date, the regulation represents one of the key pillars – not only at the European level – to turn to, when internal measures are no longer sufficient to protect workers’ freedom of speech (and, in particular, whistleblowers) from retaliation in the workplace.

The Third looks at the role played by the 2008 Guja ruling where the Court drafted a sort of a manual providing the criteria to be used to verify the legitimacy of the restrictions imposed by governments on the matter.

The Fourth surveys the typical proceeding on a case by case basis, describing subsequent judgements with a particular attention to the consequences suffered by the employee (i.e. dismissal).

The Fifth looks at future prospects, supporting the idea that in a balance between individual rights and public interest in whistleblowing, particular attention should be paid to the legal definition of a whistleblower, as it emerged from the Guja ruling. In fact, the analysis of the phenomenon started exactly from there and then continued and became a point of reference for subsequent Court rulings. Therefore, such ruling is particularly relevant for a number of reasons: it may be considered a key to the interpretation of national regulations; it provides valid orientation to public and private entities and facilitates the judge’s task in interpreting whistleblowing cases according to a legal framework that is still in a stage of evolution in many countries, but has instead already been consolidated through the implementation of specific regulations in others.

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.

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.

The European social law as a guarantee of air traffic safety

Krzysztof Stefanski, University of Lodz

You get on the plane. You have struggled to drive to the airport, find a place to park your car, suffered the stress of going through security (are you sure you have put all the liquids in a transparent plastic bag?), and, eventually, queueing to the gate. Now you have taken your seat and have a few hours’ time to relax. Will you have some sleep? Or will you read a paper listening to music? Or will you do some work? It is going to take a few hours before you go ahead with your work or holiday plans. Now you are going to travel in comfort and safety flying several kilometres above the ground. Your comfort and safety are taken good care of by superbly trained, well paid and ready-to-work professionals. They are, aren’t they?

On 12 February 2009 at 22:17, not far from Buffalo, United States, a Continental Airlines’ Bombardier Dash 8-Q400 crashed while it was coming in to land. Fifty persons died - 44 passengers and five crew, and 1 person on the ground. None of the people on board survived. The aircraft was new – hardly a year in service. The reason was pilot error. Even though the airline did scrupulously abide by the laws and regulations concerning aircrew’s working hours, nobody bothered to pay greater attention to what pilots did between the flights. Both pilots of the flight 3407 lived quite far away from the airports from which they took off: the captain frequently stayed overnight in crew lounges at the airport, sleeping in an armchair or on a sofa, while the second pilot lived on the opposite coast of the USA and travelled the distance between work and home on cargo planes. The impact of fatigue and insufficient sleep on concentration was so enormous that physiologists compared it to the effect of having drunk quite a large quantity of alcohol. Was this an isolated case or do we still face danger?

One of the principles of the European Pillar of Social Rights adopted in 2017 is safe and flexible employment. In keeping with this rule, the Member States should support innovative forms of work which guarantee quality work conditions. Simultaneously, they should prevent employment relationships that lead to precarious working conditions. The principles that the European Pillar of Social Rights builds upon are further elaborated in the EU legislation. Employment of aircrew is addressed by the Council Directive 2000/79/EC of 27 November 2000 which sets the minimum standards for, e.g. working time and rest periods. These standards are of great significance for working time in air transport. Such work requires very high qualifications, continuous training, and perfect health condition. It obviously involves specific working patterns, i.e. frequent changes of the time and place of work. Additionally, aircrew work in considerably stressful conditions requiring ceaseless concentration of attention. Hence, their employment conditions should ensure fair compensation for aircrew members and guarantee their reasonable working time and adequate rest.

On the other hand, the economic context of air transport needs to be acknowledged, too. Air transport is the most dynamically developing mode of transport. It is extremely important for the economy for enabling access to markets, which translates into economic growth and direct foreign investment. Concurrently, global air transport generates 3.5% of the world’s GDP and 56.5 million jobs. In the European Union the air transport sector directly employs from 1.4 to 2 million people, and indirectly creates approximately 5 million jobs. The direct contribution of air transport to the EU’s GDP amounts to €110 billion, while the total contribution combined with tourism is worth €510 billion. Air transport is developing very dynamically. According to estimates aviation services will grow at a rate of 4-5% per year. Air transport is an intensely competitive industry. The development of low cost airlines, as well as the dynamic growth of Asian airlines’ potential, compel operators to reduce the operating costs. Many European air carriers have chosen to outsource the operations which are not their core business activities and, gradually, also the key operations with intent to improve efficiency and profitability. New business and employment models have emerged, such as hub-and-spoke, aircrew recruitment via agencies, new untypical forms of employment or special remuneration systems for aircrew. Some of these practices can be perceived as infringing on aircrew’s employee rights. These include, e.g. departing from paid holiday or sick leaves, as well as introducing pay-to-fly remuneration systems which do not pay for the time beyond the duration of the flight. This may lead to aircrew exhaustion and violation of air traffic safety.

Airline workers actively defend their rights. Every now and then the media report industrial actions being taken by the various groups of employees in many European airlines, e.g. Air France, Lufthansa, Lot, or Ryanair.

International and European laws and regulations (in particular the ICAO standards) regulate the norms of working time and flight time limitations, and identify other aircrew employment conditions. These regulations frequently refer to the regulations and practices of individual states, whilst the legislation in some of the countries is not conducive to meeting the required standards. This is abused by some airlines. They have their pilots and other aircrew members work on a self-employment basis, whereby they circumvent some of the regulations applicable to employees. This leads to aircrew’s exhaustion and frustration. Therefore, it is worth asking whether the existing regulations can ensure air traffic safety and whether airlines’ compliance is sufficiently enforced. It needs to be added that one of the objectives of the 2015 EU Aviation Strategy is to ensure fair work conditions in this sector, e.g. by further clarification of applicable law and competent courts vis-à-vis the employment contracts of mobile workers employed in aviation, and through analyses of employment in aviation by the Commission together with the member states, as well as by supporting active and comprehensive social dialogue in this industry. However, it is difficult to be satisfied that the ongoing activities are delivering the desired result.