Fundamental Social Rights at Work in the European Community

Alan C. Neal

• Publisher: Routledge
• Year: 2019
• eBook ISBN: 9780429857805
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1999, this volume examines how the challenge of defining and developing an effective structure of fundamental social rights for workers has long been a focus for debate at European level. Even before the emergence of the 1989 Charter of Fundamental Social Rights of Workers, proposals were being made to incorporate 'fundamental rights' provisions into the Treaties establishing the European Communities. Consequently, when a distinguished Comité des Sages produced its 1996 report For a Europe of Civic and Social Rights, the stage was set for intensive debate as to the way forward.

Part I
Fundamental Social Rights at Work in the European Community

Stimulating The Debate over Fundamental Social Rights at Work in the European Community

1. Introduction

This volume addresses some of the issues developing in the modern debate over the potential for formulating a "social constitution" for Europe, in the context of the legal order of the European Community. It contains the combined reflections of various members of the judiciaries of the Member States of the European Community and of the EEA States – particularly those with direct experience of judicial dispute resolution in relation to rights at work and the relations between employers and workers within the European Community.

Building upon the agenda offered by the 1996 Report of the Comité des Sages, "For a Europe of Civic and Social Rights", a selection of issues is addressed from the perspective of implementing and giving practical effect to "rights" of workers at work in the European Community. Consideration is given to the international framework of rights, as these have impacted upon work relationships and rights of workers, and questions are posed as to the enforceability of particular putative "rights", given the experience to date in other supra-national contexts.

Beneath all of the discussions reflected in the following pages flows a strong stream of "judicial scepticism", concerned to ensure that any progress in this area is placed upon sound practical evolution of effective rights, rather than upon the shifting sands of vague declarations of principle. In consequence, some of the conclusions reached do not obviously share the aspirational heights put forward by some commentators who have gone before. On the other hand, far from indicating a lack of enthusiasm for the development of a clearly settled rights regime for European Community workers at work, the reservations voiced serve to emphasise the care which needs to be taken in the difficult task of future development for the kinds of "social rights" which are under consideration here.

This study does not pretend dramatically to develop the theoretical dimensions of the "human rights" debate, nor does it put forward any kind of "agreed judicial line" in respect of the policy implications of developing "social rights at work" or as regards any of the specific rights proposed to be established. What it does, however, is to offer some reflections from a uniquely qualified group of actors on the stage of European labour law-members of the judiciaries of the Member States and the countries of the EEA – commenting in their personal capacities, and pooling the wealth of their direct experiences of legal dispute resolution in this vital area.

Within these limited boundaries, therefore, the European Association of Labour Court Judges offers its contribution to the debate on Civic and Social Rights for Europe.

2. The Seville Colloquium

The organisation of a colloquium to bring together Labour Court judges from the Member States of the European Community was an idea initially floated by DG/V of the European Commission. It was seen as part of the follow-up process to the debate sparked by the report of the Comité des Sages on civic and social rights,¹ and as providing an opportunity to explore links between the declaration of broad concepts of social and civic rights and the practical giving of effect and enforcement to any such rights.

In particular, a forum was sought which could address practical issues touching implementation and enforcement of the kinds of rights under discussion, hopefully without some of the natural reservation which accompanies public discussions between members of the judiciary. It was therefore not surprising that the proposal was eventually made for the European Association of Labour Court Judges to host the meeting, so that an existing infra-structure for bringing together judicial representatives from the various labour courts and tribunals throughout the Community could be utilised to this end.² The Spanish section of the European Association undertook the hosting of the colloquium,³ and the technical direction was undertaken by the Association's Secretariat.⁴

One point should be made, at the outset, as regards the scope of the discussions which took place in Seville. As is well known, the establishment of a Comité des Sages came about as one component in the European Commission's medium-term social action programme of 1995.⁵ That programme was, itself, the third stage of a process which had been set in train with publication of the 1993 Green Paper,⁶ and continued through the 1994 White Paper on European social policy.⁷ The appointment of the Comité des Sages came hard on the heels of a joint hearing, organised in April 1995, between the European Commission and the European Parliament, looking at the future of the 1989 Social Charter.⁸

Given that the Comité des Sages focused particularly upon examining and developing questions raised during the joint hearing between the Commission and Parliament, it will be appreciated that their initial remit had the appearance of being rather narrowly concerned with labour market and employment-centred issues. However, as appears clearly from the eventual report of the Comité des Sages, such a perspective quickly became broadened to enable the deliberations of the Comité to address various "focal" employment rights in a context of "fundamental rights" and a more universal notion of social and civic rights.

Thus, in its report, the Comité des Sages identified eight rights which it proposed should be given full and immediate effect – namely, equality before the law; a ban on any form of discrimination; equality between men and women; freedom of movement within the Community; a right to choose one's occupation or profession and educational system throughout the territory of the Community; a right of association and a right to defend one's rights; and a right of collective bargaining and action. Alongside these '"immediate" rights, the Comité proposed a range of further rights, in the form of objectives to be achieved. These cover a right to education; a right to work; a right to social security; a right to protection for the family; and a number of other matters which are set forth as forming "an integral part of the European social model".⁹

The focus of the Seville colloquium was, by comparison, significantly narrower. In particular, it was recognised that a number of the putative rights enumerated by the Comité des Sages go well beyond applicability only in the world of work, and call for consideration of much wider values and policies than those concerned "purely" with working relationships and the rights of workers at work. Furthermore, some of those putative rights enunciated by the Comité des Sages are, themselves, hybrid in nature, and require substantial further elaboration before any notion of justiciable and enforceable rights is capable of deriving from their declaration.

Consequently, the Seville colloquium concentrated, in terms of studying "live" rights in the Member States, upon four "key" areas of social rights at work in order to exemplify the matters under discussion. These were described, for the purposes of structuring the discussions, as covering (i) security of employment and freedom to dismiss; (ii) exploitation of workers – this being taken to encompass health and safety at work, along with the insistence upon "equitable" working conditions (including the regulation of working time); (iii) discrimination – in a multitude of guises; and (iv) rights of association (trade union freedom) and collective bargaining.

The Seville colloquium also sought to approach the application and enforceability of these various social rights against a detailed backcloth of the international institutional framework for rights recognised by the Member States of the European Community. For this purpose, therefore, the first part of the discussion in Seville dealt with the whole range of social rights recognised in international law, in national Constitutions and laws, and in Community law.¹⁰ The frame of reference adopted, therefore, coincides with the more global "rights" framework to which the report of the Comité des Sages makes specific reference in the context of the revision of the Treaties.

The eventual Seville colloquium was attended by some fifty judges, drawn from all levels of the judiciary, from Supreme Court judges, through Presidents of Labour Courts, to first-instance judges in a variety of labour tribunals. As well as representatives from the legal systems of the fifteen Member States of the European Community, the colloquium was attended by judges from Iceland and Norway, representing Member States party to the Agreement on the European Economic Area.

Several of the individual participants also brought with them experience of activity within the frameworks of human rights systems apart from those directly touching the European Community. Thus, amongst the participants were members of Committees of Experts sitting in Strasbourg in relation to the European Convention, as well as a number of colleagues concerned with the supervisory work of the International Labour Organisation in Geneva, in relation to the relevant instruments of that body.

3. The Background Debate I

Discovering a “Social Dimension” for the European Community

During the last decade, a debate has been intensifying within the European Community as to whether it can be possible to introduce a variety of "fundamental right" into the legal order of the Community as a legal instrument upon which workers within the community might be able to rely. The debate has been particularly stimulated in recent years by concern for a re-thinking of the nature of social and Community rights, in the lead-up to the Inter-Governmental Conference which was intended to give rise to a revision of the Treaties. That process reached its climax with the emergence of a draft treaty which was eventually signed by all of the Member States on 2 October 1997.¹¹

Much more narrowly, however, there has been debated the hoary issue of whether it has been possible to identify an authentic "social dimension" for the European communities at all. That debate has concerned the scope of the various powers contained in the treaties, and has been concerned to plot the course of an increasing openness on the part of politicians to recognise that the economic and legal order being put into place since 1957 is not confined to an "economic dimension" purely concerned with a single European market, but which contains a "social dimension" running alongside that economic dimension and of particular concern in relation to issues such as the environment, public health, and working conditions. By now, as one writes in the late 1990s, the orthodox view clearly recognises not only the existence of a "social dimension" to the European Community but also recognises that this is not merely an "add-on" to that economic dimension. Indeed, it as precisely in order to address the challenge posed to the integrated economic entity which has progressively been brought into being at the European level, that changes to the Community's treaty powers have been brought about and that there has been witnessed an increased recognition of this reality in the case-law of the European Court of Justice.

The emergence of a generally reco...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Editor's Foreword
• PART I: FUNDAMENTAL SOCIAL RIGHTS AT WORK IN THE EUROPEAN COMMUNITY
• PART II: SELECTED INTERNATIONAL INSTRUMENTS