European Labour Law Jean Monnet Chair of EU

European Labour Law Jean Monnet Chair of EU Labour Law Academic Year 2017 -2018 Silvia Borelli: silvia. borelli@unife. it Please, check the web site for any materials distributed during the course! Lesson 3

Fundamental Rights in the European Union • CJEU, Stauder, Case 29/69, § 7 «Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court” • CJUE, Nold, Case 4/73, § 13 «fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law”.

Community Charter of the fundamental social rights of workers Adopted on 9 December 1989 by a declaration of all Member States, with the exception of the United Kingdom. The legal status of the Community Charter is that of a mere political declaration, since, due to the opposition of the UK government, the Charter could not be integrated into the EC Treaty in 1989. Article 151 of the TFEU: ‘The Union and the Member States, having in mind fundamental social rights such as those set out … in the 1989 Community Charter of the Fundamental Social Rights of Workers…’. As such, the Charter may be used by the European Court of Justice as an interpretative guide in litigation concerned with social and labour rights.

Community Charter of the fundamental social rights of workers Under this Charter, the Community is obliged to provide for the fundamental social rights of workers under the following headings: Freedom of movement (Articles 1 to 3); Employment and remuneration (Articles 4 to 6); Improvement of living and working conditions (Articles 7 to 9); Social protection (Article 10); Freedom of association and collective bargaining (Articles 11 to 14); Vocational training (Article 15); Equal treatment for men and women (Article 16); Information and consultation and participation for workers (Articles 17 to 18); Health protection and safety at the workplace (Article 19); Protection of children and adolescents (Articles 20 to 23); Elderly persons (Articles 24 to 25); Disabled persons (Article 26); Member States’ action (implementation) (Articles 27 to 30). In order to achieve these objectives, the European Commission adopted a Social Action Programme to implement the Charter (COM (89) 568 final). Hence, despite its merely declaratory character and the opposition of the UK government, the Charter was instrumental in the launching of initiatives in employment and industrial relations policy, which produced a number of directives during the 1990 s (e. g. the 1993 Working Time Directive).

Fundamental Rights in the European Union The Maastricht Treaty converted the obligation to respect human rights previously articulated by the European Court of Justice, into a treaty obligation of the Union and of Member States by virtue of their membership in the European Union. However, the Maastricht Treaty itself did not contain a catalogue or bill of rights. “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law” (art. F). See now Art. 6 § TUE

Fundamental Rights in the European Union The Treaty of Amsterdam adds to the TEU an explicit statement that “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States” (art. 1) Sanctions may be imposed on a Member State in cases of “serious and persistent breach” of these principles (art. 7 TUE). See now Art. 7 TUE

Charter of Fundamental Rights of the European Union It brings together into a single text all the personal, civic, political, economic and social rights enjoyed by people within the EU. It entrenches: I) all the rights found in the case law of the Court of Justice of the EU; II) the rights and freedoms enshrined in the European Convention on Human Rights; III) other rights and principles resulting from the common constitutional traditions of EU countries and other international instruments. It was proclaimed in 2000 but it became legally binding with the Treaty of Lisbon: «The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union …which shall have the same legal value as the Treaties” (art. 6 TEU) Protocol (no 30) on the application of the charter of fundamental rights of the European union to Poland to the United Kingdom

Charter of Fundamental Rights of the European Union The EU institutions must respect the rights enshrined in the Charter (art. 51 § 1). The Charter also applies to EU countries but only when they implement EU law (art. 51). ‘Implementing EU law’ covers a Member State’s legislative activity and judicial and administrative practices when fulfilling obligations under EU law. The Charter applies as well when a Member State authority exercises a discretion that is vested in it by virtue of EU law. National measures linked to the disbursement of EU funds under shared management may constitute implementation of EU law. “Since the fundamental rights guaranteed by the Charter must be complied with where national legislation falls within the scope of European Union law, situations cannot exist which are covered in that way by European Union law without those fundamental rights being applicable. The applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter” (ECJ, Åkerberg Fransson, § 21)

Charter of Fundamental Rights of the European Union The Charter's provisions do not extend to the competences as defined in the EU Treaties. The EU cannot intervene in fundamental rights issues in areas over which it has no competence (Art. 51 § 2 Charter; art. 6 TUE). Minimum level of protection (art. 53) The Charter can be used as: a) Interpretative tool for EU law or national law within the scope of EU law (including using Charter to justify Member State actions that might otherwise infringe EU law (eg Omega) b) Ground of invalidity of all EU actions and all MS actions within scope of EU law

Charter of Fundamental Rights of the European Union The Commission adopted a strategy for the effective implementation of the Charter in October 2010. It guarantees that at every step - from the EU legislative process to the application of EU law at the national level - the rights and principles of the Charter are taken into account. The Commission reinforced its assessment of the impact of new legislative proposals on fundamental rights. It improves EU citizens' understanding of fundamental rights protection within the EU, providing them with concrete information on possible remedies and the role of the Commission in this field. It monitors - through presenting Annual Reports - the progress achieved regarding the Charter's application.

2013 Report on the Charter of fundamental rights of the European Union (COM(2014)224 final) The 2013 report reveals that there is a high interest among citizens in fundamental rights issues: in 2013 the issues most frequently raised by citizens in their correspondence with Europe Direct Contact Centres were free movement and residence (48% of the total number of enquiries), consumer rights issues (12%), judicial cooperation (11%), questions related to citizenship (10%), antidiscrimination and social rights (5%) and data protection (4%). In 2013, 114 decisions quoted the EU Charter, which is almost three times the number of cases of 2011. Likewise, national courts have also increasingly referred to the Charter when addressing questions to the Court of Justice (preliminary rulings): in 2012, such references rose by 65% as compared to 2011, from 27 to 41. In 2013 the number of referrals remained at 41, the same as in 2012.

Charter of Fundamental Rights of the European Union

A new EU Framework to strengthen the Rule of Law (COM(2014)158 final) Context: recent events in some Member States have demonstrated that a lack of respect for the rule of law and for the fundamental values which the rule of law aims to protect, can become a matter of serious concern. “We need a better developed set of instruments, not just the alternative between the 'soft power' of political persuasion and the 'nuclear option' of Article 7 TEU” (Barroso). What does rule of law mean? The precise content of the principles and standards stemming from the rule of law may vary at national level. It includes legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law.

A new EU Framework to strengthen the Rule of Law (COM(2014)158 final) Which actions are possible? - Infringement procedures, based on Article 258 TFEU, when there is a breach of a specific provision of EU law - Preventive and sanctioning mechanisms provided for in Article 7 TEU, in case of a "clear risk of a serious breach" (par. 1) or in case of a "serious and persistent breach by a Member State" of the values set out in Article 2 TUE (par. 2). - New framework to ensure an effective and coherent protection of the rule of law in all Member States: The main purpose of the Framework is to address threats to the rule of law which are of a systemic nature (not individual one).

A new EU Framework to strengthen the Rule of Law (COM(2014)158 final) 1. A Commission assessment: The Commission will collect and examine all the relevant information and assess whethere are clear indications of a systemic threat to the rule of law. If the Commission is of the opinion that there is a situation of systemic threat to the rule of law, it will initiate a dialogue with the Member State concerned, by sending a "rule of law opinion", giving the Member State concerned the possibility to respond. 2. a Commission recommendation: In a second stage, unless the matter has already been satisfactorily resolved in the meantime, the Commission will issue a "rule of law recommendation" addressed to the Member State concerned, if it finds that there is objective evidence of a systemic threat and that the authorities of that Member State are not taking appropriate action to redress it. 3. a follow-up to the recommendation: In a third stage, the Commission will monitor the follow-up given by the Member State concerned to the recommendation addressed to it. If there is no satisfactory follow-up to the recommendation by the Member State concerned within the time limit set, the Commission will assess the possibility of activating one of the mechanisms set out in Article 7 TEU.

Access to the European Convention on Human Rights The Charter is consistent with the European Convention on Human Rights adopted in the framework of the Council of Europe: when the Charter contains rights that stem from this Convention, their meaning and scope are the same (art. 52). «whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of the European Union’s law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law” (ECJ, Åkerberg Fransson, § 44). In Bosphorus (2005) the European Court of Human Rights established a presumption according to which any measure adopted by an EU member State in fulfilment of its obligations under EU law, under the supervision of the Court of Justice of the European Union, is compatible with the ECHR's requirements unless a "manifest deficiency" is apparent.

Access to the European Convention on Human Rights The Treaty of Lisbon imposed an obligation on the EU to accede to the ECHR (art. 6 § 2 TEU). In April 2013, the draft agreement on the EU’s accession to the ECHR was finalized and the Commission asked the Court to give its opinion on the draft agreement according to Art. 218 § 11 TFEU. The ECJ has considered the draft agreement not compatible with the Treaties (Opinion 2/13, 18 December 2014). PROTOCOL (No 8) The agreement relating to the accession of the EU to the European Convention on the Protection of Human Rights and Fundamental Freedoms shall make provision for preserving the specific characteristics of the Union and Union law (Art. 1) The agreement shall ensure that accession of the EU shall not affect the competences of the Union or the powers of its institutions (Art. 2). Nothing in the agreement shall affect Article 344 of the TFEU (Art. 3). Article 344: MS undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.

Access to the European Convention on Human Rights «Article 344 TFEU is specifically intended to preserve the exclusive nature of the procedure for settling those disputes within the EU, and in particular of the jurisdiction of the Court of Justice in that respect, and thus precludes any prior or subsequent external control…only the express exclusion of the ECt. HR’s jurisdiction under Article 33 of the ECHR over disputes between Member States or between Member States and the EU in relation to the application of the ECHR within the scope ratione materiae of EU law would be compatible with Article 344 TFEU” (ECJ’s Opinion 2/13, § 210 and 213).

Access to the European Convention on Human Rights The respondent State had a wide margin of appreciation in applying EU Law and could therefore have been held responsible for a breach of the Convention (ECHR, Cantoni v. France, Judgment of 15 November 1996). Factsheet of the ECt. HR http: //www. echr. coe. int/Pages/home. aspx? p=press/factsheets&c=#n 13478908555 64_pointer ECt. HR Case Law http: //www. echr. coe. int/Pages/home. aspx? p=caselaw&c=

Fundamental Rights Agency The European Union established the EU Agency for Fundamental Rights (FRA) to provide independent, evidence-based assistance and expertise on fundamental rights to EU institutions and Member States. FRA is an independent EU body, funded by the Union’s budget. FRA Database on Charter of fundamental rights of the European Union: http: //infoportal. fra. europa. eu/Info. Portal/infobase. Show. Content. do