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EU SOCIAL LAW PRINCIPLES

Explore the various sources of EU labour law, including Treaties, Legislative Acts, European collective agreements, and ECJ rulings. Understand the competencies in social law and the funding principle of the four freedoms within the EU.

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EU SOCIAL LAW PRINCIPLES

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  1. EU SOCIAL LAW PRINCIPLES Piera Loi

  2. EUROPEAN LABOUR LAW SOURCES Treaties Legislative Acts (binding and not binding) EU LABOUR LAW SOURCES European collective agreements ECJrulings

  3. The competencies in social law Treaty of Rome (1957) did not contain, apart from a very few articles specifici provisions on social law. The European Community had no specific competencies about social issues that were reserved to national member state The funding fathers were deeply convinced that any improvement in social conditions In the member states was possible if the internal market was installed and functioned without restrictions Funding principle of the four freedoms: goods, services, capital and persons can move without restriction within the EU. EU LABOUR LAW SOURCES

  4. The competencies in social law ARTICLE 100 of the Treaty of Rome The Council shall, acting unanimously on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment or functioning of the common market. This provision means that the Commission for each proposal of a directive in the social field had to demonstrate that it directly affected the establishment or functioning of the common market. EU LABOUR LAW SOURCES

  5. The competencies in social law • ART. 119 Treaty of Rome • EachMember State shallduring the first stage ensure and subsequentlymaintain the application of the principlethatmen and womenshouldreceiveequalpay for equal work (after work of equalvalue) • Itwasoriginallyincluded in the Treaty to alleviate French concernsthatits strong devotion in domestic law to the equalpayprinciplewouldnotdisadvantage French businesses in the common market. • Nontwithstandingit’s market regulationeffects, art. 119 establish a genuine social right EU LABOUR LAW SOURCES

  6. The competencies in social law European Court of Justice, Defrenne v Sabena C-149/77 Miss Defrennewasemployedas an air hostess by the belgianairline company, Sabena. Shebrought an actionbefore the belgianTribunaldutravailclaiming a compensation for the discriminationthatshehadsufferedas a woman sinceshehadbeenpaidlessthanher male colleaguesdoing the same job as air stewards. The European Court of Justice, in answering to a preliminaryrulingrequest, saidthatArticle 119 EEC can be interpretedasproducinghorizontaldirecteffects, so anyemployee can sue his/heremployer to claim the right to getequalpay for equal work, evenbefore the adoption of directivesregulating the issue of equalpay. EU LABOUR LAW SOURCES

  7. The freedom of movement of workers Article 45 TFEU Freedom of movement for workersshall be securedwithin the Union. Suchfreedom of movementshallentail the abolition of anydiscriminationbased on nationalitybetweenworkers of the MemberStatesasregardsemployment, remuneration and otherconditions of work and employment. 3. Itshallentail the right, subject to limitationsjustified on grounds of public policy, public security or public health: (a)  to acceptoffers of employmentactually made; (b)  to movefreelywithin the territory of MemberStates for thispurpose; (c)  to stay in a Member State for the purpose of employment in accordance with the provisionsgoverning the employment of nationals of that State laid down by law, regulation or administrativeaction; (d)  to remain in the territory of a Member State afterhavingbeenemployed in that State, subject to conditionswhichshall be embodied in regulations to be drawn up by the Commission. 4. The provisions of thisArticleshallnotapply to employment in the public service. EU LABOUR LAW SOURCES

  8. The competencies in social law The Single EuropeanAct (SEA) is the first Treatyamending the originalTreaty of Rome in 1986 introducedprovisionsrecognising a specificcompetence of the EU community for the harmonisation of health and safetyconditionsat work. Italsointroduced the qualifiedmajorityvotingprinciple inside the Council of Ministers . Thisvotingprinciplehelped the adoption of social directiveslaying down minimum requirements in the area of health and safetyconditionsat work. The SEA alsointroduced the practice of social dialogue by which the social partners ( Unions and Employer’sassociations) atEuropeanlevelcouldnegotiatecollectiveagreements. EU LABOUR LAW SOURCES

  9. The competencies in social law The Community Charter of the Fundamental Social Rights of Workerswasadoptedat the Strasbourg Summit in December1989 by the Heads of State or Government of 11 MemberStates. the United Kingdom opted out and the Charter had a non binding nature butservedas a basis for the CommissionProgramme of Social Action. A reference to the Community Charter of the Fundamental Social Rights of Workerswas made in the Treaty of Rome (today art. 151 TFEU)and evenifindirectly, itacquired a binding nature. EU LABOUR LAW SOURCES

  10. The competencies in social law Art. 151 TFUE The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion. EU LABOUR LAW SOURCES

  11. The fundamental social rights Maastricht Treaty(1992) altered the former European treaties and created a European Union based on three pillars: the European Communities, the Common Foreign and Security Policy (CFSP) and cooperation in the field of justice and home affairs (JHI). From now on two Treaties Treaty of the European Communities (EC treaty) and Treaty of the European Union (TEU) introduced the European Community’s objective of the promotion of a high level of employment and social protection Being impossible for the 12 Member States to reach a unanimous agreement during the intergovernmental conference, 11 Member States decided to move ahead by concluding an Agreement on Social Policy, with the UK opting out (Protocol annexed to the Treaty). EU LABOUR LAW SOURCES

  12. The competencies in social law the Amsterdam Treaty (2007),including the UK (Blair government), agreed to incorporate the Agreement on Social Policy into the text of the EC Treaty with some slightchanges (Articles 151-161 TFEU). In Article 153, the co-decision procedure with the parliamentreplacedcooperation and wasalsoextended to provisionsrelating to the European Social Fund, the free movement of workers and social security for Community migrantworkers. The new Article 19 conferred on the EC the ability to ‘take appropriate action to combatdiscriminationbased on sex, racial or ethnicorigin, religion or belief, disability, age or sexualorientation’. EU LABOUR LAW SOURCES

  13. The competencies in social lawCharter of fundamentalrights of the European Union (Nice 2000) The Charter sets out the full range of civil, political, economic and social rightsbased on: the fundamentalrights and freedomsrecognised by the European Convention on Human Rights (Council of Europe) the constitutionaltraditions of the EU MemberStates, for example, longstandingprotections of rightswhichexist in the common law and constitutional law of the UK and other EU MemberStates European Social Charter (Council of Europe ,1961) the Community Charter of Fundamental Social Rights of Workers (1989) EU LABOUR LAW SOURCES

  14. The competencies in social lawCharter of fundamentalrights of the European Union (Nice 2000) Article 15 Freedom to choose an occupation and right to engage in work Article 20 Equalitybefore the law Article 21 Non-discrimination Article 27 Workers’ right to information and consultationwithin the undertaking Article 28 Right of collectivebargaining and action Article 29 Right of access to placementservices Article 30 Protection in the event of unjustifieddismissal Article 31 Fair and just workingconditions Article 32 Prohibition of childlabour and protection of youngpeopleat work EU LABOUR LAW SOURCES

  15. The competencies in social law LisbonTreaty ( 2007), emphasises the EU’s social objectives, including full employment and solidaritybetweengenerations (Article 3); Article 6 recognises the Charter of FundamentalRightsashaving the samebinding force as the Treaties. A horizontal social clauseisintroducedinto the TFEU: ‘in defining and implementingitspolicies and activities, the Union shall take into account requirementslinked to the promotion of a high level of employment, the guarantee of adequate social protection, the fightagainst social exclusion, and a high level of education, training and protection of human health’ (Article 9). EU LABOUR LAW SOURCES

  16. European labour law The competencies of EU in the TFEU • Article 3 TFUE • 1. The Union shallhaveexclusivecompetence in the followingareas:(a) customs union;(b) the establishing of the competitionrulesnecessary for the functioning of the internal market; (c) monetary policy for the MemberStateswhosecurrencyis the euro;(d) the conservation of marine biologicalresources under the common fisheries policy;(e) common commercial policy. EU LABOUR LAW SOURCES

  17. European labour law The competencies of EU • Article 4 TFUE • 1. Sharedcompetencebetween the Union and the MemberStatesapplies in the followingprincipalareas: • (a) internal market;(b) social policy, for the aspectsdefined in thisTreaty;(c) economic, social and territorialcohesion;(d) agriculture and fisheries, excluding the conservation of marine biologicalresources; (e) environment;(f) consumer protection;(g) transport;(h) trans-European networks;(i) energy; EU LABOUR LAW SOURCES

  18. European labour law Social Policy Social policy is not an area of exclusive competences of the Union and the Member States, they may both legislate Principle of subsidiarity EU LABOUR LAW SOURCES In areaswhich do notfallwithinitsexclusivecompetence, the Community shall take action,inaccordance with the principle of subsidiarity,onlyif and in so far as the objectives of the proposed actioncannot be sufficientlyachieved by the MemberStates and can therefore,byreason of the scale or effects of the proposedaction, be betterachieved by the Community.

  19. European labour law Social Policy Social policy as defined in art 4, par. 2 (b) of the TFEU is an area of shared competence between the Union nd the Member States EU LABOUR LAW SOURCES The Union and the Member States may legislate and adopt legally binding acts in the area of social policy. Shared competence between the Union and the Member States applies in the following principal areas: (b) social policy, for the aspects defined in this Treaty;

  20. European labour law In the area of social policy for some social matters a qualifiedmajorityvotingisrequired inside the Council and this procedure makeiteasier to adoptbinding legislative acts, likedirectives, establishing minimum requirements for all the MemberStates (art.153 TFEU.) EU LABOUR LAW SOURCES • improvement of the workingenvironment to protectworkers' • health and safety; • workingconditions; • information and consultation of workers; • integration of personsexcluded from the labour market • equalitybetween men and women with regard to labour market • opportunities and treatment at work; • combating of social exclusion; • modernisation of social protectionsystems

  21. European labour law Social matters for whichunanimityisrequired inside the Council. For thesemattersevenif a competenceisrecognisedat EU level, de facto thiscompetenceisimpossible or verydifficult to exercise, sinceit’sverydifficult to reachunanimitybetween 27 MemberStates (28?) (art. 153 TFEU). You can note that in alltheseissues the Stateshavedemonstrated to be reluctant to leaveregulatorypowers to the EU level EU LABOUR LAW SOURCES • social security and social protection of workers; • protection of workerswheretheiremploymentcontractisterminated; • representation and collectivedefence of the interests of workers and employersincluding co-determination; • conditions of employment for third-country nationalslegallyresiding in Union territory;

  22. European labour law Social matters for whichanycompetence of the EU isexcluded and whichremains Of exclusivecompetence of MemberStates and no legislationat Eu level can be adopted: (art. 153 TFEU, last par.) • wages • the right of association • the right to strike or the right to impose lock-outs. EU LABOUR LAW SOURCES Rememberthat the right to strike isprotected by art.II-28 (The Charter of fundamentalrights of the European Union ) whichsaysthatworkers and employers or theirrespectiveorganisations in cases of conflicts of interesthave the right to take collectiveaction to defendtheirinterestsincluding strike action. Thatmeansthatthereis a possiblecontradictionbetweenthesetwolegal sourcesot the EU

  23. European labour law The employment strategy • The Union and the Member States work towards developing a coordinated strategy for employment(art. 145 ff. TFEU) • Member states competencies in the field of employment policies Are respected • Each year the European Council adopts conclusion on the basis of an Annual report on the employment situation in the Union • On the basis of these conclusions the Council adopts (proposal of the Commission and the Parliament) employment guidelines which Member States shall take into account in their employment policies • Each member State will describe in an annual report the principal steps taken to implement its employment policy in the light of the guidelines EU LABOUR LAW SOURCES

  24. DIRECTIVES • are binding for member states as to the objectives to be achieved • member states are free to choose the form and the means to implement them • In the social field they are the preferred source since they respect the traditions of Member States as far as industrial relations, workers structure of representation in working places, • Protection of the right to strike and so on. EU LABOUR LAW SOURCES

  25. EFFECT OF DIRECTIVES • direct effect: the capacity of a directive to create right and obligations • it’s possible even when a directive is not implemented yet (via judicial interpretation) • it’s possible when their content is enough clear and precise EU LABOUR LAW SOURCES

  26. EUROPEAN REGULATIONS • Its’a legislative act of general application • It ‘s binding in its entirety and directly applicable in all Member States without the need for national measures to implement them In social law it is used in the social security area. Ex. Regulation 1408/1971 (replaced by Regulation 883/2004) On Coordination of social security systems LABOUR LAW SOURCES

  27. DECISIONS • they are not general as regulations • they are binding in their entirety upon those to whom they are addressed • they can be addressed to any or all member states, to undertakings or to individuals LABOUR LAW SOURCES A European decision it’s a non-legislative act binding in its entirety. A decision which specifies those to whom it is addressed It’s binding only on them.

  28. RECOMMENDATIONS AND OPINIONS • THEY ARE NOT BINDING • THEY ARE INSTRUMENTS OF HARMONISATIONOF NATIONAL LEGISLATIONS • THEY CAN BE USED AS INTERPRETATIVE TOOLS LABOUR LAW SOURCES

  29. RESOLUTIONS • THEY ARE NOT BINDING • THEY ARE NORMALLY ADOPTED BY THE PARLIAMENT AND THE COUNCIL TO EXPRESS THE LINES OF A POLICY • MANY RESOLUTIONS HAVE BEEN ADOPTED IN THE SOCIAL FIELD(THE COMMUNITY CHARTER ON FUNDAMENTAL SOCIAL RIGHTS) LABOUR LAW SOURCES

  30. European labour law Social dialogue and collective agreements • Before submitting any proposal in the social policy field, the Commission consults the social partners on the possible direction of Community action. • If the Commission considers Community action advisable it consults the social partners on the content of the envisaged proposal and a) Give an opinion or a recommendation. b) Initiate the process leading to a collective agreement in a period not exceeding nine months EU LABOUR LAW SOURCES The European collective agreements can be implemented as such in each member State or their content can be transferred into a directive

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