-
Enforcing EU Employment Law in the UK The Pending Directives on
Individual Labour Law
and the Consequences of their Forthcoming
Implementation
A Thesis submitted to the
THE UNIVERSITY OF MANCHESTER
INSTITUTE OF SCIENCE AND TECHNOLOGY for the Degree of
Master of Science in International Business
by
Constantinos Parissis
Manchester School of Management
The University of Manchester
Institute of Science and Technology
September 1999
-
DECLARATION
No portion of the work referred to in this thesis has been
submitted in support of an
application for another degree or qualification of this or any
other university or other
institute of learning.
-
ACKNOWLEDGEMENTS
I would like to express my gratitude to Professor Jill Rubery,
who supervised this study,
for her support, guidance and understanding.
Special thanks are given to Brian Bercusson, Professor of
European Law in the
University of Manchester, for his invaluable suggestions,
although he was carrying no
obligation to help.
I would like to thank Dr. Dave Murphy and Dr. Jiens Peter
Reinhardt from the
Manchester School of Management for their precious advice and
encouragement.
I would also like to thank Ioannis Manoledakis, Professor of
Penal Law in the Aristotle
University of Thessaloniki, for his highly influential teaching
that made me think as a
legal scientist, as well as C. Hadjiconstantinou, Professor of
International Law and L.
Kotsiris, Professor of Company Law in the same University, for
recommending me to
UMIST.
Finally, I would like to express my deepest love and
gratefulness to my parents who
once again supported me with any possible means in fulfilling my
dreams.
-
7
ABSTRACT
This study has two objectives: firstly, to interpret the pending
in the UK Directives on
Individual Labour Law; and, secondly, to assess the impact of
their forthcoming
implementation on the employees and business in the UK. The
Directives examined are
those on the Burden of Proof in Cases of Discrimination Based on
Sex, Parental Leave,
Part-time Work, Fixed-term Work and on the Posting of
Workers.
The first two Chapters constitute the literature review. Chapter
1 refers to the legislative
background and briefly covers the evolution of labour law in
Western Europe, the
(E)EC and the UK, the institutional framework of the European
Union, the main sources
of EU Labour Law, the legislative process in the EU and the
hierarchy between Union
and national laws. Chapter 2 includes an overview of the most
important of the existing
analyses reviewed, and a summary of the current legislation in
the UK.
Chapters 3-6 constitute the legal interpretation of the
Directives: Chapter 4 covers both
of the Directives on atypical work (part-time and fixed-term
work), while each one of
the other chapters concern each one of the rest of the
Directives. This part of the study
reveals several issues of legal and practical importance, as the
Directives major
weaknesses and limitations, as well as potential problems
related with their
implementation.
In Chapter 7 we attempt to assess the most important direct and
indirect effects of the
regulations on the employers, the workers and the employment
conditions.
The final part (Conclusions) provides a synopsis of the most
important points of the
analysis, associating the findings of the legal interpretation
(from ch. 3-6) with the
findings on their impact (from ch. 7).
The law is as stated at 1 September 1999.
-
9
Table of Contents
ABSTRACT
.....................................................................................................................
7
TABLE OF CONTENTS
.................................................................................................
9
LIST OF ABBREVIATIONS
........................................................................................
15
INTRODUCTION
........................................................................................................
17
I. AIM OF THE RESEARCH
.........................................................................................17
II. ACADEMIC
RELEVANCE.......................................................................................17
III. SCOPE OF THE
RESEARCH...................................................................................18
III. a. Directives to be
Examined......................................................................................................18
III. b. Directives
Excluded...............................................................................................................19
IV. RESEARCH METHODOLOGY
...............................................................................20
IV. a. Legal
analysis.......................................................................................................................21
IV. b. Socio-economic analysis
........................................................................................................23
V. STRUCTURE
...........................................................................................................23
REFERENCES
..............................................................................................................24
CHAPTER 1
LITERATURE REVIEW, PART I: PRESENTATION OF THE CONTEXT......
25
A. THE LEGISLATIVE BACKGROUND
.....................................................................26
A.1 The Evolution of Labour Law in Western
Europe...................................................26
A.2 The Evolution of European Labour Law within the EEC
........................................27 A.2.a 1957-1973: The
Market Approach of Labour
Issues..................................................................28
A.2.b 1974-1980: The Golden Era of European Labour Law
...........................................................29
A.2.c 1981-1991: The Interaction between UK Politics and EEC
Social Concerns ...............................29
A.2.d The Developments in
Maastricht.............................................................................................30
A.2.e The Treaty of
Amsterdam........................................................................................................30
A.2.f An Overview: European Social
Policy......................................................................................31
A.3 The Evolution of British Labour Law
....................................................................31
A.3.a Collective
Laissez-faire..........................................................................................................32
A.3.b Deregulation and the End of
Trade-unionism.......................................................................32
A.3.c The role of Common Law
.......................................................................................................33
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10
A.3.d The British Labour Law in the Context of the
EEC....................................................................33
A.4 The Interaction Between the UK and the (E)EC Labour Law
..................................34
A.5 Transposition of (E)EC Labour Law into Domestic UK Law
..................................35
B. THE EU INSTITUTIONAL FRAMEWORK
..............................................................35
B.1 The Basic Institutions
...........................................................................................36
B.1.a The European Parliament
(EP)...............................................................................................36
B.1.b The Council
..........................................................................................................................36
B.1.c The Commission
....................................................................................................................38
B.1.d The European Court of
Justice................................................................................................39
B.2 The Social Partners
............................................................................................40
C. THE MAIN SOURCES OF EU LABOUR LAW
.........................................................40
C.1 Primary Sources of EU Labour Law: The
Treaties..................................................41
C.2 The Directives as a Source of EU Labour Law
.......................................................41 C.2.a
Common Principles Across the Employment Related
Directives.................................................43
C.3 Other Secondary
Sources......................................................................................44
C.3.a
Regulations...........................................................................................................................44
C.3.b
Decisions..............................................................................................................................44
D. HIERARCHY BETWEEN EU AND NATIONAL LAW
.............................................45
D.1 The Question of Supremacy of EU Law
................................................................45
D.2 Applicability and Effect of EU Law
......................................................................46
D.2.a Direct Effect
.........................................................................................................................46
D.2.b Indirect
Effect.......................................................................................................................47
E. THE LEGISLATIVE PROCESS ON LABOUR ISSUES IN THE EUROPEAN
UNION48
REFERENCES
..............................................................................................................50
CHAPTER 2
LITERATURE REVIEW, PART II: THE PENDING DIRECTIVES
................... 51
A. PROBLEMS OF THE
REVIEW.................................................................................52
B. EXISTING ANALYSES REVIEWED
........................................................................53
B.1 An Overview
.......................................................................................................53
B.1.a Catherine Barnard (1996): EC Employment Law
.....................................................................54
B.1.b Catherine Barnard and Tamara Hervey (1998): European Union
Employment and Social Policy
Survey 1996 and
1997............................................................................................................54
B.1.c Brian Bercusson (1996) European Labour
Law........................................................................54
B.1.d Roger Blanpain and Chris Engels (1998): European Labour
Law - and Roger Blanpain and
Ioannis Koukiadis (1993): Community Law of Employment: before
and after Maastricht.............55
B.1.e Mark Jeffrey (1998): Not Really Going to Work? Of the
Directive on Part-time Work, Atypical
Work and Attempts to Regulate
it...........................................................................................56
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11
B.2. Burden of Proof in Cases of Discrimination Based on Sex
.....................................56
B.3 Parental Leave
.....................................................................................................56
B.4 Atypical Work
.....................................................................................................57
B.5 The Posting of Workers
........................................................................................59
C. THE DIRECTIVES FROM THE SCOPE OF BRITISH LABOUR
LAW......................59
C.1 Burden of Proof in Cases of Discrimination Based on Sex
......................................60
C.2 Parental Leave
.....................................................................................................61
C.3 Atypical Work
.....................................................................................................62
C.3.a Part-time Work
.....................................................................................................................63
C.3.b Fixed-term Work
...................................................................................................................66
C.4 The Posting of Workers
........................................................................................69
C.5 Concluding Remarks
............................................................................................70
REFERENCES
..............................................................................................................72
CHAPTER 3
THE BURDEN OF PROOF IN CASES OF SEX DISCRIMINATION
................. 75
A. GENERAL INFORMATION
.....................................................................................76
B. CONTENT OF THE
DIRECTIVE..............................................................................78
B.1
Definitions...........................................................................................................78
B.1.a Principle of Equal
Treatment..................................................................................................78
B.1.b Indirect
Discrimination..........................................................................................................78
B.2 Purpose and
Manifestation....................................................................................80
B.2.a The Burden of Proof
..............................................................................................................81
B.2.b
Information...........................................................................................................................81
B.3 Scope
..................................................................................................................82
B.4 Other Provisions
..................................................................................................83
C. IMPLEMENTATION IN THE UK
.............................................................................83
REFERENCES
..............................................................................................................87
CHAPTER 4
PARENTAL LEAVE
...................................................................................................
89
A. GENERAL INFORMATION
.....................................................................................90
B. CONTENT OF THE
DIRECTIVE..............................................................................91
B.1 Purpose, Manifestation and
Function.....................................................................91
B.1.a The Right to Parental Leave
...................................................................................................92
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12
B.1.b The Entitlement to Time Off on Grounds of Force
Majeure........................................................94
B.2 Scope
..................................................................................................................95
B.2.a Limitations Regarding Parental
Leave.....................................................................................95
B.2.b Limitations Regarding Time
Off..............................................................................................96
B.3 Other Provisions
..................................................................................................97
C. IMPLEMENTATION IN THE UK
.............................................................................98
C.1 Parental Leave
.....................................................................................................99
C.2 Time Off from Work
..........................................................................................
100
REFERENCES
............................................................................................................
102
CHAPTER 5
ATYPICAL WORK
...................................................................................................
103
A. GENERAL INFORMATION
...................................................................................
104
A.1 Definitions
........................................................................................................
106 A.1.a Atypical Work
.....................................................................................................................
106
A.1.b Part-time
Work....................................................................................................................
107
A.1.c Fixed-term
Work..................................................................................................................
108
A.1.d Temporary Work
.................................................................................................................
108
A.1.e The Comparative
Employee................................................................................................
108
B. THE DIRECTIVE ON PART-TIME
WORK.............................................................109
B.1 Purpose and
Manifestation..................................................................................
109 B.1.a The Removal of
Discrimination.............................................................................................
110
B.1.b The Improvement of the Quality of Part-time Work
.................................................................
111
B.1.c Facilitating the Development of Part-time Work on a
Voluntary Basis...................................... 112
B.1.d Contributing to the Flexible Organisation of Working Time
() .............................................. 114
B.2 Function and Scope
............................................................................................
114 B.2.a The General Principles and Minimum
Requirements...............................................................
114
B.2.b Other Functions
..................................................................................................................
116
B.3 Other Provisions
................................................................................................
116
C. THE DIRECTIVE ON FIXED-TERM WORK
..........................................................117
C.1 Purpose and manifestation
..................................................................................
117 C.1.a The Application of the Principle of non-discrimination
........................................................... 118
C.1.b The Improvement of the Quality of Fixed-term
Work...............................................................
119
C.1.c The Establishment of a Framework to Prevent
Abuse..............................................................
120
C.2 Scope
................................................................................................................
121
C.3 Other Provisions
................................................................................................
122
D. IMPLEMENTATION IN THE
UK...........................................................................122
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13
D.1 Part-time Work
..................................................................................................
122
D.2 Fixed-term Work
...............................................................................................
124
REFERENCES
............................................................................................................
125
CHAPTER 6
POSTED WORKERS
................................................................................................
127
A. GENERAL INFORMATION
...................................................................................
128
B. CONTENT OF THE
DIRECTIVE............................................................................
130
B.1
Definitions.........................................................................................................
130 B.1.a Social
Dumping...................................................................................................................
130
B.1.b Home and Host State
...........................................................................................................
130
B.1.c
Worker................................................................................................................................
131
B.1.d Posted
Worker.....................................................................................................................
131
B.1.e Minimum Rates of
Pay.......................................................................................................
132
B.1.f Non-significant Work
.........................................................................................................
132
B.1.g Universally Applicable Collective Agreements or
Arbitration Awards.................................... 132
B.1.h Equality of
Treatment...........................................................................................................
132
B.2 Scope
................................................................................................................
133 B.2.a General
Applicability...........................................................................................................
133
B.2.b Exemptions and Derogations
................................................................................................
134
B.3 The Basic Principle and the Key Provisions
......................................................... 135 B.3.a
The Basic
Principle..............................................................................................................
136
B.3.b The General Level of
Protection............................................................................................
136
B.3.c Sources of Applicable
Regulations.........................................................................................
137
B.4 Function
............................................................................................................
138
B.5 Other Provisions
................................................................................................
140
C. IMPLEMENTATION IN THE UK
...........................................................................142
REFERENCES
............................................................................................................
143
CHAPTER 7
IMPACT
ASSESSMENT...........................................................................................
145
A. THE METHODOLOGICAL
APPROACH................................................................146
B. THE DIRECTIVE ON THE BURDEN OF PROOF
...................................................148
C. THE PARENTAL LEAVE
DIRECTIVE...................................................................
150 Note on the Governmental
Resources.............................................................................................
150
C.1. Parental Leave
..................................................................................................
151
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14
C.1.a Direct Impact on the
Employees............................................................................................
151
C.1.b The Gender
Impact..............................................................................................................
153
C.1.c The Impact on
Business........................................................................................................
156
C.1.d Impact on Employment
Conditions........................................................................................
157
C.2 Time off
............................................................................................................158
D. THE DIRECTIVES ON ATYPICAL
WORK............................................................
159
D.1 The Directive on Part-time Work
........................................................................159
D.1.a Scope
.................................................................................................................................
159
D.1.b Governmental Estimations
...................................................................................................
159
D.1.c The General Level of Protection
...........................................................................................
162
D.1.d The Trojan Effects of Clause
6(2)a........................................................................................
168
D.2 The Directive on Fixed-term
Work......................................................................169
E. THE POSTED WORKERS DIRECTIVE
..................................................................171
REFERENCES
............................................................................................................
173
CONCLUSIONS.........................................................................................................
175
SELECTED BIBLIOGRAPHY
...................................................................................
181
INTERNET
RESOURCES...........................................................................................
187
APPENDIX I SELECTED ARTICLES OF THE EC
TREATY............................................................189
APPENDIX II THE PENDING
DIRECTIVES.....................................................................................
195
APPENDIX III
SELECTED RULINGS OF THE COURT OF JUSTICE
................................................239
Note on the numbering of the Articles of the EC Treaty: unless
explicitly stated, the
numbering is as it appears in the Treaty of Rome and its
following amendments, until
Maastricht. Thus, the numbers of the Articles do not correspond
to the numbers of the
consolidated texts of the EC Treaties.
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15
List of Abbreviations
CEEP European Centre of Enterprises with Public
Participation
EC European Community
ECJ European Court of Justice
ECSC European Coal and Steel Community
EEC European Economic Community
EP European Parliament
ETUC European Trade Unions Confederation
EU European Union
IRS Industrial Relations Services
IRSET Industrial Relations Services Employment Trends
SPA Social Policy Agreement
TEU Treaty on the European Union
UNICE Union of Industrial and Employers Confederations of
Europe
TU(PE) Transfer of Undertakings (Protection of Employees)
(Act)
EqPA Equal Pay Act
LIFO Last In First Out
ERA Employment Relations Act
TULR(C)A Trade Union and Labour Relations Consolidation Act
CAC Central Arbitration Committee
EAT Employment Appeal Tribunal
SDA Sex Discrimination Act
RRA Race Relations Act
RIA Regulatory Impact Assessment
DTI Department of Trade and Industry
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17
INTRODUCTION
I. Aim of the Research
The primary purpose of this research is to interpret the new, to
the UK,
regulations on Individual Labour Law emanating from European
Union Directives.
However, instead of introducing a strictly legal document
expanding the legal
discussion over the new legislation, we will attempt to examine
the regulations in the
context of their foreseen implementation and to assess their
impact, primarily on the
parties concerned (management and labour), as well as on the
employment relations in
general.
II. Academic Relevance
The UKs labour market being the least regulated in Europe and
the present
number of European Union proposals on employment issues being
rather large, keeping
up to date with legislation emanating from Europe is likely to
become increasingly
important for UK employers over the forthcoming years (IRSET
671, p. 6), after the
Labour Governments opt-in to the European Social Chapter
(similarly IRSET 679, p.
16). Moreover, the volume of new regulations on employment
issues is increased by
Britains peculiar position in the EEC and its successor the EU:
for eighteen years
(1979-1997) the Conservative Administration followed a policy
which, before 1989,
blocked the adoption of almost all employment legislation at
European level and,
between 1989 and 1997, suspended the harmonisation of UK law to
most of the
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Introduction
18
European employment legislation, which must now be embodied in
the national law.
This legislation, as a whole, touches virtually all known
aspects of the employment
relationship and establishes individual employment rights, which
to a great extent are
novel for the UK as mandatory regulations. Hence, the scrutiny
of the forthcoming
legislation may be characterised as essential, not only for the
employers but also for the
employees, and the examination of its prospective impact in the
UK seems a high
priority.
III. Scope of the Research
This study is concerned with the employment legislation
emanating from
Directives, since this form of Community action is the main
instrument of implementing
law unification policies1 across the EU (Morris, P.E., 1989, pp.
242-243). More
specifically, it is focused on the Directives the implementation
of which is pending in
the UK, either because they are novel as regulations or their
implementation was
postponed by the previous Governments.
III. a. Directives to be Examined
During the summer and at the final stage of the research, two of
the Directives
which were from the beginning intended to be part of it, the
Directive on Parental Leave
and the Directive on Part-time Work, came into implementation by
the new
Employment Relations Act (27/7/99). However, the Directives are
at least partially
pending and, since their examination was deemed as compliant
with the general
purposes of this study, their analysis was included in the final
text. Moreover, on June
1 The importance of the Directives is such that Coopers and
Lybrand Consulting, in an informative
brochure of 1988, was suggesting to its clients, in certain
instances, even to rearrange their company or
group structure in anticipation of the requirements of
forthcoming Directives, or to lobby for changes to
draft directives (Coopers and Lybrand, 1980).
-
Introduction
19
28 the Council adopted as a Directive the Framework Agreement on
fixed-term work,
which was concluded by the Social Partners earlier this year
(18/3/99). The text of the
Directive was published in the Official Journal on July 10 and
became publicly
available on July 26. This Directive was also included. Thus,
the Directives which shall
be examined are:
1. Directive 97/80/EC of 15 December 1997 on the burden of proof
in cases of
discrimination based on sex (to be implemented in the UK by
13/7/2001).
2. Directive 96/34/EC of 3 July 1996 concerning the framework
agreement on parental
leave, concluded by ETUC, UNICE and CEEP (to be fully
implemented in the UK
by 15/12/1999).
3. Directive 97/81/EC of 15 December 1997 on part-time work (to
be fully
implemented in the UK by 7/4/2000).
4. Directive 99/70/EC of 28 June 1999 concerning the framework
agreement on fixed
term work, concluded by ETUC, UNICE and CEEP (to be implemented
in the UK
by 10/7/2001).
5. Directive 96/71/EC of 16 December 1996 on issues related to
posting of workers
(to be implemented in the UK by 24/9/1999).
III. b. Directives Excluded
The Directives which, although at least partly pending, have not
been
deemed as compliant with the aims of this study, are:
1. Directive 98/59/EC of 20 July 1998 on collective
redundancies. The reason for
excluding this Directive is that it does no more than
consolidate the texts of
Directive 75/129/EEC of 17 February 1975 and its following
amendment, Directive
92/56/EEC of 24 June 1992, both implemented in the UK.
2. Directive 94/33/EC of 22 June 1994 on the protection of young
people at work. The
Directive has been excluded because all of its important parts
have already been
implemented (i.e. the Health and safety - Young Persons -
Regulations of 1997
-
Introduction
20
implemented articles 6 and 7 of the Directive, and the Children
- Protection at Work
- Regulations of 1998 implemented article 4, as well as all
other provisions related
to the employment of children).
3. Directive 98/50/EC of 29 June 1998, amending the Directive
77/187/EEC of
14/2/1977 on the protection of employees in cases of transfer of
undertakings,
implemented in the UK with the Transfer of Undertakings
(Protection of
Employees) (TU(PE)) Act of 1977. The new Directive incorporates
in the text of
the regulation the most important rulings of the European Court
of Justice on the
issues it concerns, brings the amended provisions into line with
the (above-
mentioned) Directive on collective redundancies and, in general,
resolves several
problematic points of the amended text. Hence, although very
important, it can be
considered more as an improvement of the existing regulations
than as a novel piece
of legislation.
IV. Research Methodology
The study in its entirety follows the Aristotelian principles,
employing the four
basic tools of reasoning: analysis, meaning the dividing of the
complex until the
reaching of the simplest possible elements, the ones that cannot
be divided further
(Aristotelis, Politica 1252a 18-20), in chapters 3-6, induction
and production, mainly
in chapter 7, and synthesis of the findings, in the
conclusions.
Also, due to its atypical nature as a multidisciplinary academic
paper, the study
employs various methods of methodology in order to reach the
stated goals, which in
total represent three different phases of collecting and
analysing empirical evidence
(Yin, 1994, p. 3): the exploratory phase (to identify which the
new regulations are),
the descriptive phase (what the regulations prescribe) and the
explanatory phase
(legal interpretation and estimation of their further
impact).
For the exploratory phase, the data being legal and thus
restricted in certain
formal sources, logically the method to be used is a
non-critical review (equivalent to
-
Introduction
21
Yin s archival analysis) of the official documents setting out
the regulations. For the
descriptive phase2, the method to be employed is a critical
review of informal
resources of legal reading, that is legal books and legal or
managerial periodicals with
reference to the issues concerned. The explanatory phase
consists of two parts: the
legal analysis, which refers to the interpretation of the
regulations, and the socio-
economic analysis, which aims to assess the impact of the
legislation to the parties
concerned and the employment relations.
IV. a. Legal analysis
The legal analysis concentrates primarily on the interpretation
of the Directives
already presented (paragraph III.a supra), but also refers to UK
legislation existing
before the implementation of these Directives. During this
analysis, three major
methodological problems were encountered.
Firstly, the fact that I was taught the Law in Greece, the legal
system of which is
based on Civil Law, influenced me to consider case law as a tool
for reference and not
as a set of rulings with universally binding features. However,
it would be
methodologically inappropriate to overlook the fact that, under
Common Law, the case
law in the UK plays a significantly more enhanced role, being a
source of legislation
equivalent to the statutes (Stamatis, 1991, p. 83). The solution
which was found
appropriate was to generally rely on the opinions expressed by
British legal scientists,
regarding the UKs legal environment, and to accredit to British
case law the specific
gravity given by them at every instance.
The second methodological problem encountered was in regard to
the case law
of the European Court of Justice and the manner in which it
should be treated. The
Court, according to Steiner and Woods (1998, p. 31), in
developing the substantive law
2 The term descriptive refers only to the chronic phase of
selecting data, not to the way of presenting it
in the text of this study, which effort has been made to be
highly critical.
-
Introduction
22
draws on principles and traditions from all the Member States.
Since the EC Treaty is a
framework Treaty the Court has been extremely influential in
filling the gaps, and in
doing so has created law (), something which is apparent in
several rulings on cases
of Sex Discrimination (ibid)3. The problem is that, in doing so,
the Court is following its
own way, which is similarly surprising for the scientists or
judges of both legal systems:
a court to create law is in principle unthinkable from the scope
of view of Civil Law; at
the same time, as Lord Diplock stated4, the ECJ applies
teleological rather than
historical methods (), it seeks to give effect to what it
conceives to be the spirit rather
than the letter of the Treaties () [which] sometimes indeed, to
an English judge, ()
may seem to the exclusion of the letter. To overcome this
problem, whenever
appropriate, we will distinguish the interpreting Clauses from
the law-making ones and
we will read them with respect to their legal substance.
The third methodological problem was the small quantity of
available European
case law on the basis of the new legislation, because of its
novelty. Hence, the
utilisation of European case law as a tool for validating the
opinions expressed in
published legal studies concerning the herein examined
Directives will be limited.
Nonetheless, whenever there exist rulings relevant to the
subject of this study, they will
be cited5.
All kinds of resources, formal, informal and juridical - the
latter when available -
will be examined from the point of view of analytical
jurisprudence, as the doctrine was
(re)defined by H.L.A. Hart in 1961: The legal scientist
perceives the Law as granted,
enacted by the qualified State Authorities. [] The legal
scientist keeps to a logical
reconstruction of the meaning of the rules of definite law, as
they apply, [the scientist
being] distant of axiological thinking. This thinking is related
to ideological positions of
3 That is even more obvious if we consider that, in most of the
Directives examined in this study, it is
mentioned as one of their purposes to come to terms with rulings
of ECJ, when one would normally
expect the reverse.
4 In R v Henn [1981] (cited in Steiner and Woods, ibid)
5 See also Appendix III
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Introduction
23
subjective nature, however the exercise of the legal science has
to be ideologically
unprejudiced, in aim to be conditioned by scientific objectivity
(Stamatis, ibid, p. 92).
IV. b. Socio-economic analysis
For this part of the analysis (chapter 7, Impact Assessment) we
will employ
three different methods, each one where appropriate, which may
provide credible data
for each of the aspects investigated:
- National and European Secondary Data: Use of secondary data
resources providing
figures about the employment in the UK and the EU, which will be
used as tools for
measuring the prospective impact of the new regulations, as well
as previous
research particularly surveys referring to the implementation of
these
regulations.
- Literature review: Critical review of opinions expressed by
specialists and
researchers, forecasting the impact of the new regulations to
the UK.
- Scenario analysis.
V. Structure
In the main part of the study, we will firstly expound the
Directives, analysing
their content in terms of the legal meaning, effect and
function, with particular interest
to potential weaknesses, as well as to implications which may
derive from their foreseen
implementation (chapters 3-6). Secondly, we will point out ways
by which these
Directives may affect the employers and the employees, as well
as the employment
relations in the UK in general (chapter 7). Chapters 1 and 2 are
a literature review over
the legal context and the pending Directives, respectively.
After the last chapter of the
main part (7) we will draw the conclusions.
-
Introduction
24
REFERENCES
Coopers and Lybrand Consulting, (1988) informative brochure:
Europe: The EEC
Directives
Hart, H.L.A. (1961) The Concept of Law. Oxford: Oxford
University Press
Industrial Relations Services - Employment Trends issue 671:
Employment law
update: whats next from Brussels?, January 1999
Industrial Relations Services - Employment Trends issue 679:
Towards a one-speed
Europe?, May 1999
Morris, P. E. (1989) The Direct Effect of the Directives - Some
Recent Developments
in the European Court - part I, Journal of Business Law, May
1989, pp. 233 - 245
Stamatis, C. (1995). The Foundation of Legal Reasoning:
Introduction to Legal
Methodology. Thessaloniki: Sakkoulas
Steiner, J. and Woods, L. (1998). Textbook on EC Law. London:
Blackstone Press Ltd
Yin, R. (1994). Case Study Research. London: Sage
publications
-
25
CHAPTER 1
Literature Review
Part I
Presentation of The Context
-
Chapter 1
26
A. THE LEGISLATIVE BACKGROUND
A.1 The Evolution of Labour Law in Western Europe
From an article of Mark Jeffrey (1997, pp. 205-228) we can
summarise the
historic development of labour law in Western Europe as
follows:
In the geographical area of the European Union, historically,
the accumulation of
regulations in the areas of labour law and social security law
was the result of a series of
responses to perceived threats to the established social order.
Any benefits for the
workers concerned were largely the means to the end being aimed
at (that is, social
stability), and not to the ends in themselves (p. 206). Some
workers in a relatively
weak industrial position especially women and children were the
subject of some of
these laws, but the main focus remained on those workers who
were perceived as the
principal threat to the social order: mostly the unionised,
skilled, male, manual workers
in heavy industry the typical workers. Since the end was social
stability, eventually
the workers who were not perceived as a threat the atypical
workers were ignored
or deliberately excluded by legislature, the exclusion being
occasionally reinforced by
the courts and, sometimes, by collective agreements.
Throughout the countries which now constitute the European
Union, the
conception of social rights6 is relatively recent, as it was
developed in the last few
decades during which perceptions of law and rights, of work and
of workers have all
6 Koukiadis (1985, p. 1-5) attributes the labour legislation to
the need of protection of the weak part of
the employment contract, the worker, against the potential
peremptoriness of the strong part, the
employer.
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Literature Review: The Context
27
been changing. Factors which influenced this evolution were the
vast increase in the
volume of the legal and collective regulation of work, and
parallel with this, the
expectation that all workers should enjoy the same social
rights. The sharp decline in
heavy industry and the growth in services, which have greatly
emphasised the
importance of forms of work which do not correspond to the
typical stereotype, made
the exclusions of workers from social legislation to seem
unfair. Finally, the way in
which womens work is perceived has changed and is now widely
accepted as it should
not be undervalued, although this principle is still far from
having been translated into
practice (ibid, p. 206).
A.2 The Evolution of European Labour Law within the EEC
According to Bercusson (1996, p. 8) the national laws in the
original six
Member States were not conceived of in terms of the European
Communities. However,
the evolution of labour law and social law of the Community was
inevitably influenced
by the mature and maturing conceptualisations of the national
labour laws of the
original Member States and of later adherents (ibid, pp. 9-10,
also Barnard and Deakin,
1998, p. 135). Conversely, as (E)EC labour law and social law
norms developed, they
began to influence the formulation and conceptualisation of
national labour laws (ibid).
Hence, the two processes are now linked in a specific symbiosis
(ibid). In formulating
(E)EC labour law, the law- and policy-making institutions of the
EC had to come to
terms with these systems and were influenced by them7.
7 Bercusson provides a number of examples from different periods
that, according to him, illustrate the
historical continuity if this influence: The insertion of
Article 119 of the Treaty of Rome was due to
the insistence of France , concerned to extend its own
legislation on equal treatment on men and
women. The Commissions proposals beginning 1970s on workers
participation in company structures
owe their inspiration to the German law co-determination. The
Thatcher governments declared policy
of labour law deregulation in Britain during the 1980s led to
blockage of new EC social regulations
during that decade. The Danish tradition of basing law primarily
on collective agreements between the
social partners (trade unions and employers associations) rather
than legislation, and Italian emphasis
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Chapter 1
28
A.2.a 1957-1973: The Market Approach of Labour Issues
The Treaty of Paris in 1951 on the ECSC provided its authorities
with powers to
enable them to restructure the coal and steel industries. This
included measures to deal
with the social consequences for workers in this process,
including retraining, relocation
and housing (ibid).
The Treaty of Rome on the European Economic Community, much
closer in
spirit to the labour market policies of the Member States during
the 1950s, did not
follow the precedent of the ECSC (ibid, pp. 12). The EEC was
founded to create a
common market in services, goods, capital and labour, having as
cornerstone in the
social field the free movement of workers (ibid). But, freedom
of movement for labour
in a common market as a founding objective is quite different
from the objectives
associated with national labour laws and also those of
international labour standards.
However, this primary association of EEC labour law with free
movement provides the
initial context of labour and social law of the Community in its
earlier stages (ibid).
Hence, the first fifteen years of the EEC (1957-1972) are
usually identified as its
neo-liberal phase, with emphasising solely on free movement of
workers and labour
mobility within the Common Market to the exclusion of other
social policy initiatives
(ibid). The return to concerns on workers rights and industrial
democracy initiatives
influenced EEC labour law only after the Paris Summit of 1972
and the Action
Programme of 1974 (ibid, pp. 10).
on the autonomy of the Social Partners, led to pressures
allowing for EC labour law Directives to be
implemented through collective agreements. Finally, the
experience of constitutionalisation of social
and economic rights in the new or revised constitutions of
Greece, Spain, Portugal and the Netherlands
contributed to the formulation of the Community Charter of
fundamental Social Rights of Workers of
December 1989 (1996, pp. 9-10).
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Literature Review: The Context
29
A.2.b 1974-1980: The Golden Era of European Labour Law
This period has been characterised as the golden era of Labour
Law in the
EEC (Blanpain and Koukiadis, 1993, p. 60). The Action Programme,
which was
adopted by the Council of Ministers on 21 January 1974, had as
priorities the
achievement of total employment under better conditions, the
improvement of living
and working conditions, the harmonisation of national labour
laws of the Member
States, and the upgrading of the roles of labour and management
in the planning and
adoption of social policies, together with the upgrade of the
role of the employees in the
enterprise (ibid, pp. 61-62). During that period the Council of
Ministers adopted the
landmark Directives on equality between the sexes (equal pay,
equal treatment, social
security) and the Directives on collective dismissals, acquired
rights upon transfer of
undertakings and protection of workers in insolvency.
A.2.c 1981 - 1991: The Interaction between UK Politics and EEC
Social Concerns
During the 1980s, the legislative process in the EEC in terms of
Labour Law was
held back as a result of the British governments counteraction8.
As a result, the
Community legislation was reduced only to health and safety
issues. Thus, in the
following years the activity of the Community in the social
field was characterised by
the conflict between the UK government, which was determined in
blocking every
policy at the social field which was not in terms with its
deregulation plans, and the
attempts of the rest of the Member States and the EEC
authorities to overcome the
British opposition. For reasons of conciseness, we will not
continue with the
presentation of the issue, since it is discussed more
extensively under section A.4.
8 According to all the sources reviewed
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Chapter 1
30
A.2.d The Developments in Maastricht
The Treaty on the European Union, signed by the Member States of
the
European Community on 7 February 1992, included a Social Chapter
in the form of
the Protocol on Social Policy (No 14) and an Agreement (Social
Policy Agreement)
annexed to the Protocol between all other Member States except
the UK, also on Social
Policy (Bercusson, ibid, p. 35). The Protocol noted that the
Member States wish to
continue along the path laid down in the 1989 Social Charter
[and] have adopted among
themselves an Agreement to this end, and formed an integral part
of the EC Treaty.
The Agreement was stated in the Protocol to be annexed to the
Protocol and became,
therefore, part of Community law (ibid). Similarly, any measures
adopted using the
institutions, procedures and mechanisms of the Treaty have had
effects in Community
law, as far as all Member States except the UK were concerned.
The UK opted out of
the Social Chapter, the Agreement and the Treaty on the European
Union (ibid, p.38),
but the British social partners remained within the
organisations of labour and
management at EC level (ibid, p. 28). However, the exclusion was
not considered to be
permanent and alternatives for the UK to opt in were provided
(ibid).
A.2.e The Treaty of Amsterdam
According to Barnard and Deakin (1998, p. 133), the most
significant part of
the Treaty of Amsterdam () regarding social policy was the
introduction of a new
Chapter on Employment. According to Article 1 of the new Title
in the Treaty,
Member States and the Community shall work towards developing a
co-ordinated
strategy for employment and particularly for promoting a
skilled, trained and adaptable
workforce and labour markets responsive to economic change.
However, the
protagonists remain the Member States: according to Article 3
the Community is to
support and, if necessary, complement their action. On the other
hand, Article 4 permits
the Council to adopt certain labour market policies, albeit in
the form of soft law,
drawing up guidelines on employment (ibid). The Luxembourg
European Council of 21
November 1997 decided to put the new Title on Employment into
effect immediately in
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Literature Review: The Context
31
order to implement the provisions on co-ordination of Member
States employment
policies from 1998. The co-ordination was based upon employment
guidelines drawn
up by the Commission, this time structured around the four
pillars of employability,
entrepreneurship, adaptability and equal opportunities
(ibid).
A.2.f An Overview: European Social Policy
According to Barnard and Deakin (ibid), the traditional model of
social policy
at national level encompasses social insurance, public
assistance, health and welfare
services and housing policy. Although both the EC Treaty and the
Commissions White
Paper of 1994 talk of a Community social policy, most of these
concerns are absent
from the Commissions concept of the term: in the place of the
traditional model there
exist rules relating to sex equality in the workplace (but not
yet racial equality), health
and safety, and protection in the case of corporate
restructuring. Therefore, the
terminology of social policy masks what is in essence employment
related social
policy and an eclectic body of employment law at that
(ibid).
A.3 The Evolution of British Labour Law
At the dawn of the one-speed European Union, there are three
main
characteristics of British Labour Law, which distinguish it from
the legal systems on
employment that exist elsewhere in Europe: a singular
relationship between collective
bargaining and social legislation, a degraded role of collective
bargaining, and, in
general, minimal regulation of the employment relationship. The
vicious circle, which
resulted in the current situation, can be briefly described as
follows:
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Chapter 1
32
A.3.a Collective Laissez-faire
From the beginning of the Industrial Revolution, legislation in
the UK played a
relatively limited role in directly regulating employment
relations, and the greater
importance traditionally was accorded to voluntary sources, of
which collective
bargaining has been the most important (Deakin and Morris, 1998,
p. 15). In 1954,
Kahn-Freund wrote that there is, perhaps, no major country in
the world in which the
law has played a less significant role in the shaping of
[labour-management relations]
than in Great Britain (ibid, p. 47). By this, according to the
same authors, he meant that
not only was collective bargaining, and not legislation, the
principal source of norms
governing wages, working time and other terms and conditions of
employment for most
workers; but also that legislation played little or no role in
determining the form which
collective bargaining between labour and management should take.
Kahn-Freund
described the result as collective laissez-faire. And, although
in this system the state
was not absent, or neutral, still it retained for legislation
the role of subsidiary to that of
voluntary bargaining (ibid, p. 16).
A.3.b Deregulation and the End of Trade-unionism
As a result, in the beginning of the 1980 s, formal labour law
regulation was
comparatively weak in Britain, but extra-legal sources of
regulation were
correspondingly strong, as part of the legacy of collective
laissez-faire (ibid, p. 45). The
Conservative Administration of the years between 1979 and 1997
chose to adopt instead
a programme of economic deregulation and further liberalisation,
designed to
promote product-market competition and reduce the size of the
public sector (ibid).
Reform of industrial relations and restructuring of the labour
market were central parts
of this wider economic programme. Legislation limited and
finally virtually abolished
the collective laissez-faire, at the same time as statutory
employment rights were
qualified and in some instances removed completely, in favour of
a return to the
common law institution of the individual contract of employment
(ibid). What was
perhaps most remarkable about this programme of reform was the
use of labour law not
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Literature Review: The Context
33
as a means of achieving distributive goals or embodying a notion
of industrial - or social
- justice, but as part of an economic policy designed to foster
competitiveness (ibid,
p.39).
Furthermore, on the grounds that it would promote labour market
flexibility,
within individual labour law a policy of partial or selective
deregulation was adopted,
removing legal protections even for the young workers and the
low paid (ibid, p. 43).
A.3.c The Role of Common Law
On the other hand, Common Law, which was favoured as a source of
labour law
by the deregulation process, had been traditionally sceptical of
collectivism and
simultaneously consistent in aiming to retain conditions of
economic liberalism, thus
reducing even more the employee protection in the workplace
(similarly Deakin and
Morris, ibid, p. 14).
A.3.d The British Labour Law in the Context of the EEC
A comparative study of the labour law in the ten EEC members of
1982 and
Switzerland (Ellis and Storm, 19829) shows that, even at the
time when the labour
market in the UK was much more regulated than today, the
employment conditions
were still far below the standards in the other European
countries - members of the
EEC. Ever since, and while the labour market in Britain was
following its individual
route to deregulation, the other Member States were
strengthening even more their
social legislation. Hence, even if the EEC legislation
represented the lowest common
denominator among the other Member States, the UK regulations
stood below it.
9 See pp. 117-140, 152-160, 186-206, 247-257, 293-302, 337-340,
383-389, 430-441, 491-511, 550-553
and 598-604.
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Chapter 1
34
A.4 The Interaction Between the UK and the (E)EC Labour Law
As already stated, the accession to the EC of the UK in 1973
coincided with the
beginning of a period of legislative activity in the field of EC
labour law, which
according to Bercusson has been so far unique (ibid, p. 27). The
impact of the five
Directives on equality issues and acquired rights, all adopted
during that period, on
domestic labour and social law has been profound (ibid). The
change of UK
government in 1979 led to the adoption of an official attitude
of fundamental hostility to
the social dimension of the integration process (ibid) while, on
the other hand, the trade
union and labour movement reversed their previous hostility
(ibid, p. 31). It is
commonly accepted that, since 1979, EC legislative activity in
the labour field has
largely halted in the face of the UK governments rejection of
almost all proposals from
the Commission, and their consequent failure to achieve the
necessary unanimous
approval in the Council of Ministers10.
According to Bercusson, this UK veto was one of the reasons
which led to the
initiation of the policy of stimulating the European Social
dialogue as an alternative
path to a social dimension for the EC (ibid, p. 28). During the
1980s, two more
strategies were developed to maintain and continue Community
Social policy and
labour law (ibid, p. 65): The first was the use of indirect
financial instruments to
promote social policy initiatives and to further labour law
objectives, with the principal
instrument the European Social Fund. The second involved
amending the Treaty of
Rome to allow for qualified majority voting on social policy
issues. This culminated in
the Social European Act 1986, under which articles 100A and 118A
were added to the
Treaty of Rome, although in the text of the Act there was no
direct reference to Labour
Law (Blanpain and Koukiadis, ibid, p. 62). According to
Bercusson, the end result of
the tension was manifest in the Community Charter of Fundamental
Social Rights of
Workers of 1989, which was signed by all the Member States with
the exception of the
UK (ibid, p. 28). However, the Charter was no more than
expression (declaration or
10 From all sources, also referred in Bercusson (ibid).
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Literature Review: The Context
35
reclamation) of the political will of the signing parties,
therefore it did not have any
legal effects (Blanpain and Koukiadis, ibid, p. 63, also
Barnard, 1996, pp. 61-3).
As stated before, the UK opted-out of the Treaty on the EU, the
SPA and the
Social Chapter. However, a change of government in the UK On May
1997 led to a
change of approach towards the Amsterdam Treaty negotiations
(Barnard and Deakin,
ibid, p. 133) and the UK agreed to opt-in to the Social Chapter.
As a result, the SPA was
merged with the Chapter on Social Policy (Articles 117-121) on
the EC Treaty to form
part of mainstream Community law. The force of the Directives
already adopted under
the SPA has been extended to the UK by the means of extension
Directives under
Article 100 EC.
A.5 Transposition of (E)EC Labour Law into Domestic UK Law
According to Bercusson, EC social and labour law can be
incorporated in the
UK by various ways and methods (ibid, p. 28). By the passing of
primary legislation,
through the House of Parliament, or by secondly legislation,
through acts of the
Administration: Section 2(2) of the European Communities Act
1972 gives power to the
Ministers to make regulations. Thirdly, the UK courts have
accepted the EC law
doctrines of vertical direct effect (please see section B.2,
infra) and that UK legislation
must be interpreted in accordance with the requirements of
Community Law. If such
means do not secure the full and appropriate implementation of
EC labour legislation,
the Commission is able to pursue infringement proceedings under
Article 169 of the
Treaty of Rome.
B. THE EU INSTITUTIONAL FRAMEWORK
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Chapter 1
36
B.1 The Basic Institutions
B.1.a The European Parliament (EP)
According to Blanpain and Engels (1998, p. 42), the EP consists
of 626
representatives of the peoples of the States brought together in
the Community (Art.
137 of the EC Treaty). Its members are elected by direct
pan-European elections and
their mandate lasts 5 years. The EP is a very special
parliament, in that there is not a
Government which has to rely on its confidence (ibid, p. 43).
Also, for the EP to
exercise a certain control over the Commission and to censure
the Commissions
activities, a certain procedure has to be followed, which,
according to Blanpain and
Engels, constitutes such a huge task that it has no real
significance in practice. The EP
has a consultative and supervisory role, the latter being most
important in regard to the
budget, and its legislative role is slowly expanding. Its
important powers in relation with
employment law are in the cooperation and the conciliation
procedure, which are
discussed under section E (infra). Except where otherwise
provided in the Treaty, the
EP acts by an absolute majority of votes (ibid, p. 44).
B.1.b The Council
The Council of the European Communities, established by Article
1 of the
Merger Treaty of 1965, is undoubtedly the most important
European institution, since it
is the principal European legislator (ibid, p. 44). According to
Article 2 of that Treaty,
the Council consists of representatives of Member States. Each
Government shall
delegate to it one of its members. Which member assists at a
given meeting depends on
the agenda (ibid). If the Social Council meets, the Ministers
competent for these affairs,
e.g. the Ministers of Employment will attend. The social council
is one of the sectorial
or specialised councils. If general points are on the agenda,
the Ministers of Foreign
Affairs will meet in the General Council. The European Council
is the Council of Heads
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Literature Review: The Context
37
of Governments and Prime Ministers, which meets three times a
year together with the
Ministers of Foreign Affairs. The Council is an institution of
the Community. This
means that, although national interests are defended in the
Council and the Ministers
defend the point of view of their respective Governments, Member
States are bound to
take all necessary measures to realise the objectives of the
Communities (Article 5 of
the EC Treaty).
The most important tasks of the Council relating to Labour Law
are (ibid, p.
45):
- the organisation of free movement of workers (Art. 48-51 EC
Treaty);
- the approximation of (labour) laws (Art. 100-102 EC
Treaty);
- the elaboration of a social policy (Art. 117-122 EC
Treaty);
- the implementation of decisions regarding the Social Fund
(Art. 125 EC Treaty);
- the development of quality education and vocational training
(Art. 126-127 EC
Treaty);
- the promotion of stronger economic and social cohesion (Art.
130A-E);
- the implementation of the Social Charter and the Agreement on
Social Policy.
The Council acts by absolute majority, qualified majority or
unanimity. Absolute
majority is the general rule (Article 148(1) of the EC Treaty).
In practice, however, the
general rule is the exception and qualified majority is the rule
(ibid).
In regard to labour law, a qualified majority is needed for the
following issues:
- free movement of workers (Art. 49 EC Treaty);
- the establishment of the internal market (Art. 100A EC
Treaty);
- the improvement of the working environment, health and safety
of workers (Art.
118A EEC Treaty);
- economic and social cohesion under the Art. 130E (EC
Treaty);
- the European Social Fund (Art. 125 EC Treaty);
- the implementation of the Maastricht Agreement on Social
Policy (partly).
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Chapter 1
38
Unanimity is required for decisions regarding the rights and
interests of
employed persons (Art. 100A(2) EC Treaty) and for economic and
social cohesion
purposes under the Art. 130D (EC Treaty);
B.1.c The Commission
The Commission consists of 20 members chosen on the grounds of
their
general competence and whose independence is beyond doubt (Art.
157(1) EC Treaty).
Smaller countries have one national as a member and larger
countries have two. The
Commissioners term of office is 5 years and is renewable (Art.
158 EC Treaty). The
Commission acts by majority vote (11 votes). Under the
Maastricht Treaty, the EP has a
say in the appointment of the Commission. The Commission is, in
contrast to the
Council, European par excellence (ibid, p. 47): Art. 157(2) of
the EC Treaty prescribes
that the members must, in the general interest of the
Communities, be completely
independent in the performance of their duties. In principle,
they may neither seek nor
take instructions from any Government or from any other body and
each Member State
has the obligation not to influence the members of the
Commission.
Each Commissioner is accountable to the EP for all decisions
taken by the
Commission. Nevertheless, there is a division of labour, which
takes place under the
form of a distribution of portfolios: each Commissioner is thus
competent for a number
of directorates-general. This means, for example, that the
Social Commissioner is
responsible for employment, industrial relations and social
affairs, education and
training. Directorate-general V is for employment, industrial
relations and social
affairs.
The most important task of the Commission is undoubtedly its
participation on
the European legislative process (Art. 155 EC Treaty)11. In
quite a number of cases,
the Treaties indicate that the Council can only act on a
proposal of the Commission. The
11 Please see subchapter E, infra.
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Literature Review: The Context
39
Council can only act with unanimity if it amends such a
proposal, while the
Commission is entitled to change its proposals, as long as the
Council has not made a
decision, either at its own initiative, or at the request of the
Council itself, of the EP, or
the Economic and Social Committee (ibid). Another important task
of the Commission
is to ensure that the provisions of the EC Treaty and the
measures taken by the
institutions pursuant thereto are applied (Art. 155 EC Treaty).
If the Commission
considers that a Member State has failed to fulfil an obligation
under the Treaty may
bring the matter to the ECJ (Art. 169 EC Treaty). It also has a
decision-making power
of its own and is competent to conduct negotiations that may
lead to the conclusion of
international agreements (ibid).
B.1.d The European Court of Justice
According to Art. 164 of the EC Treaty, the Court ensures that
in the
interpretation and application of this Treaty the law is
observed. The Member States
undertake to respect the competence of the Court regarding
disputes concerning the
interpretation or the application of the Treaty (Art. 219 EC
Treaty). It consists of fifteen
judges and is assisted by nine Advocates-General. The members of
the Court are
proposed by the Governments of the Member States and their
six-year term of office is
renewable.
The Court is competent to judge whether Member States live up to
their duties
under the Treaties (Art. 169-170 EC Treaty), and to review the
legality of the acts of the
Council and the Commission and whether they need to be declared
void (Art. 173-174
EC Treaty). The Court has also the jurisdiction to make
preliminary rulings concerning
the interpretation of Community law at the request of courts or
judges of the Member
States (Art. 177 EC Treaty). These rulings are binding for the
national judges. The
judgements of the ECJ are made in last resort and are
consequently not susceptible to
appeal. They are enforceable in all Member States of the
Community. Natural and
private persons also have access to the Court (ibid).
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Chapter 1
40
In conformity with Art. 168A of the EC Treaty, a Court of First
Instance was
attached to the ECJ, in order to ease the case load of the
latter. Its jurisdiction includes
the disputes regarding the Communities and their staff, appeals
by enterprises
concerning ECSC levies, production quotas, prices and
competition, and certain appeals
relating to compensation concerning the points raised above.
B.2 The Social Partners
The most significant changes introduces by the Social Chapter
relate to the way
that decisions are made and legislation is passed (Barnard,
ibid, pp. 67-68). The Chapter
envisaged a twin-track approach: on the one hand legislative,
following the usual
channels, subject to certain amendments to take account of the
UKs absence, and the
other collective. This second approach permitted the
substitution of Community
legislation by an agreement between the Social Partners (usually
referred as
management and labour), reflecting an increased role for the
Social Partners in the
EU, and incorporating subsidiarity as regards the choice, at
Union level, between the
legislative and collective approach (Bercusson, 1994, ibid).
The recognised Social Partners in the EU are the European Trade
Unions
Confederation (ETUC), the Union of Industrial and Employers
Confederations of
Europe (UNICE) and the European Centre of Enterprises with
Public Participation
(CEEP). UEAPME, the organisation for small and medium sized
enterprises, has
unsuccessfully challenged its exclusion from the negotiations on
parental leave before
the Court of First Instance (Barnard and Deakin, 1998, p.
133)12.
C. THE MAIN SOURCES OF EU LABOUR LAW
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41
C.1 Primary Sources of EU Labour Law: The Treaties
The European Coal and Steel Community (Paris, 1951), the
European Economic
Community (Paris, 1951) and the European Atomic Energy Community
or EURATOM
(Rome, 1957), including their Annexes, Protocols and
Conventions13, constitute the
founding Treaties of the European Community (Blanpain and
Engels, ibid, p. 35,
Barnard, ibid, p. 15) and the primary sources of Community Law.
To these we should
add their amendments through the Merger Treaty of 1967 (Paris),
the Single European
Act (1986), the Treaty on the European Union (Maastricht, 1991),
and the latter
development, the Treaty of Amsterdam (1997), with their
respective supplements.
Together, they form the backbone of the European Union, its
constitutional character,
and thus take precedence over any secondary or derived
legislation which conflicts with
their provisions (Barnard, ibid, p. 15). After the consolidation
of the Treaties in
Amsterdam, the Primary Sources of Labour Law are addressed in
Articles 39-42
(previously, 48-51) on the Free Movement of Workers, in Art.
125-130 (pr. 109N
109S) on Employment, and in Art. 136-150 (pr. 117-127) on Social
Policy, Education,
Vocational Training and Youth.
C.2 The Directives as a Source of EU Labour Law
The Directive is one of the three legally binding sources of
secondary law, the
other two being the Regulation and the Decision (please see next
section, C.3). It is
binding to the result to be achieved, upon each Member State to
which is addressed, but
leaves to the national authorities the choice of form and method
(Art. 189 EC Treaty).
Since it is only the result that counts, the implementation of a
Directive can be done by
all appropriate legislative means (Blanpain and Engels, ibid, p.
55). The intention of the
12 Case T-135/96, Judgement of 17 June 1998.
13 Which form an integral part of the Treaties, according to
Article 239 EC
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Directives is to harmonise (though not make identical) the law
in Member States. The
employment related Directives are the main secondary source of
EU employment law
(ibid).
The directives are produced after a long period of drafting by
experts, exposure
for comment, approval by EEC bodies, redrafting and re-exposure.
Comments on the
proposed directives may be made by individuals or representative
bodies at many of
these stages. To cater for difficulties encountered in
individual states or by individual
types of business (Coopers and Lybrand, 1980):
- In many cases, derogations are permitted allowing a Member
State not to
legislate in accordance with particular terms of the directive
but instead to enact
alternative legislation normally to achieve the same objective
in a different
manner;
- A contact committee has been established whereby the Member
States can, in a
consultative capacity, review practical problems arising from
the application of
directives and advise the Commission on any supplements or
amendments to be
made to Directives.
Due to jurisprudence of the European Court of Justice in several
cases, a
question arose in terms of the direct effect of the Directives
towards the national legal
systems (Morris, 1988, p. 233). The issue is further discussed
in subchapter E (infra).
The Directives are Community law and not in themselves law
directly
applicable in the Member States. They take the form of binding
instructions by the
Council of Ministers to Member States, requiring them to enact
law in accordance with
the provisions of the Directives (Blanpain and Engels, ibid p.
55). Individual Member
States governments are bound by the Treaty of Rome to comply
with those
instructions. However, they may not be considered law in
national level before being
transposed into national law by the national legislature
(ibid).
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43
C.2.a Common Principles Across the Employment Related
Directives
This paragraph is not aimed at presenting the general principles
upon which the
adoption of the Directives was based, but to cite principles
which are common in the
texts of the Directives to be presented in the main analysis. It
purpose is only to help in
not having to repeat remarks to be made upon the same
issues.
Subsidiarity and Proportionality
The application of the principle of subsidiarity is an issue
which has triggered a
longstanding legal debate in the EU. However, the most important
thing in the
framework of this study is that the principle, found in the
texts of all the Directives
related to this topic, means that action is being taken at
Community level only when the
Member States cannot achieve a better regulatory result
(Barnard, ibid p. 80). On the
other hand, proportionality means that the measures taken are
the minimum required
for the attachment of those objectives and [do] not go beyond
what is necessary for the
purpose (from the Directive on fixed-term work, recital 16).
Both principles have been
set out by Article 5 of the Treaty of Rome (ibid). Another
aspect of the principles is
commonly met in their provisions on implementation (usually the
last set of provisions),
where the Directives declare that the Member States can maintain
or introduce more
favourable provisions than the ones the Directives set out, and
that the measures the
Directives provide do not prejudice the right of the Member
States to introduce different
measures as long the principles declared in the main text of the
Directives are respected.
Non Victimisation
According to Lewis (1997, p. 69), victimisation means the
harassment by legal
or practical means of people simply because they have given
evidence in connection
with proceedings, have brought proceedings or intend to do so
against someone under
the provisions of the source of law in question. All of the
Directives related to our topic
deny victimisation.
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Non Regression
This is another principle met in all the Directives to be
examined. It deters the
Member States from reducing the general level of protection
afforded to workers in the
field of the Directives.
C.3 Other Secondary Sources
The sources of secondary law are the Directives, the Regulations
and the
Decisions, which are legally binding, and the Recommendations
and the Opinions,
which are not binding (Blanpain and Engels, ibid , p. 55).
C.3.a Regulations
The Regulations have general application, are binding in their
entirety and
directly applicable in all Member States (Art. 189(2) EC
Treaty). A regulation is
clearly a generally binding norm, like an act of parliament
(Blanpain and Engels, ibid, p.
55). It is immediately and directly binding without any specific
intervention of the
national authorities. Consequently, they supersede national law;
national law which is
contrary to a Regulations is null and void and may not be
applied. Despite their
undoubted direct applicability, their direct effectiveness is
conditional (Barnard, ibid p.
31) (please see next subchapter, D). In the case of a regulation
with direct effectiveness,
the effect will be vertical and horizontal (ibid).
C.3.b Decisions
Like the Regulations, the Decisions are binding to their entity
upon those to
whom they are addressed (Art. 189 EC Treaty). The can be
addressed to natural or legal
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45
persons (Blanpain and Engels, ibid, p. 57). They are not general
norms: they are
directed to specific persons. Decisions which are addressed to
the Member States can
have direct effect. They are notified to those to whom they are
addressed and take effect
upon notification.
D. HIERARCHY BETWEEN EU AND NATIONAL LAW
D.1 The Question of Supremacy of EU Law
In the early case of Costa v ENEL the ECJ established that,
where national law
conflicts with directly effective (please see paragraph D.2.b,
infra) Community law,
Community law prevails (Barnard, ibid, p. 27). According to a
not unchallenged
opinion expressed in Barnard (ibid, p. 28), on the basis of the
judgement of the ECJ on
Simmenthal, the doctrine of supremacy of the Community law
applies irrespective of
the nature of the Community provision (constitutive Treaty,
Community Act or
agreement with a non-Member State) or the national provision
(Constitution, statute or
subordinate legislation)14; it also applies irrespectively of
whether the Community
provision comes before, or after the national provision: in all
cases the national
provision must give way to Community law.
14 However, Areios Pagos, one of the two supreme Courts of
Greece, in a recent judgement denied the
application of the doctrine over the provisions of the Greek
Constitution. Under the implications of such
a ruling, the issue has to be investigated further.
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D.2 Applicability and Effect of EU Law
It is not uncommon for the concepts of applicability and effect
to be confused,
even in the case law of the ECJ15. According to Winter (cited in
Barnard, ibid, p. 31),
applicability connotes the quality of applying within the
domestic legal system even in
the absence of implementing legislation. Effect describes the
quality of giving rise to the
rights which an individual may rely on in a domestic court. A
measure which is directly
applicable is not necessarily directly effective.
Another issue with importance for the needs of our analysis is
in terms of the
vertical and horizontal effect of a Community provision:
vertical effect means the
ability of a person to turn against a Member State (or the
Community), relying on a
right provided by the Community provision, while horizontal
effect means the ability to
turn against another person. It is accepted (ECJ rulings in Van
Gend en Loos and
Defrenne II ) that the provisions of the Treaty have both
vertical and horizontal effect.
D.2.a Direct Effect
From a dissertation written by J. Fairhurst (1997, pp. 34-40) we
are informed
that the ECJ developed the principle of direct effect in Van
Gend en Loos v Nederlandse
Administratie der Belastingen [1963]. In that decision, the
Court creatively established
that the Treaty may create rights which an individual may
enforce directly in the courts
of the Member States. [] However, in establishing the general
principle of direct
effect, the ECJ limited its scope only to those provisions which
were sufficiently precise
and unconditional. [] A Community provision is unconditional
when it is not subject,
in its implementation or effects, to any additional measures by
either the Community
Institutions or the Member States. In order to be sufficiently
precise (or clear and
15 See Defrenne II, [1976] Case 43/75, where applicability is
mentioned but effect is meant (Barnard, p.
31)
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47
unambiguous) it is necessary to be able to identify the persons
who are entitled the
right, ascertain the content of that right, and identify the
person/body liable to provide
that right. [] In Francovich v the Republic of Italy it was made
clear by the Court that
the fact a Member State may have a number of possible options
(or derogations)
available to it when adopting or implementing legislation will
not necessarily prevent
the content of the measure from being adjudged to be
sufficiently precise.
For the EC Treaty Articles and the Regulations to have direct
effect the only
conditions to be met are the ones described above. Also, their
effect, once ascertained, is
always horizontal and vertical. As for the Directives, an
additional condition applies:
the Directive in question not to have been transposed into
national law within the time
limit specified in its body, either not at all or not correctly
(Pubblico Ministero v Ratti
[1979]and Becker v Finanzamt Munster-Innerstadt [1982], cited in
Barnard, ibid pp. 31-
32). Also, Directives can only have upward vertical effect
(Marshall v Southampton
Health Authority [1986] and Dori v Recreb [1994], ibid). Their
effect does not depend
on the capacity in which the State is acting, whether an
employer or a public authority.
D.2.b Indirect Effect
The doctrine of indirect effect is of particular importance for
the Directive