CROSS-BORDER SOCIAL DIALOGUE AND AGREEMENTS: An ...

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Implementation and monitoring of cross-border agreements – Bercusson EU law. The inclusion of fundamental rights concerning employment and industrial relations in an EU Charter incorporated into the EU Treaties may well confer on them a constitutional status within national legal orders. In some cases, the EU Charter’s labour standards and industrial relations requirements may exceed those of Member States’ laws. Similarly, the ECJ may adopt interpretations consistent with international labour standards, while national labour laws may fall short. In sum, the EU Charter promises a renewal of labour law, both at European transnational level and within EU Member States. 18 The ECJ will become a central player in the enforcement of the EU Charter. It will decide disputes where Member States are charged with failing to implement or allegedly violating rights in the EU Charter. The Court has played this role in the past, relying on free movement of goods, services, capital and labour, guaranteed in the EC Treaty, to override national restrictions on free movement. The EU Charter provides a further means whereby the Court can promote European integration, this time in the social and labour field. Litigation based on the EU Charter could become an important means of securing social and labour rights, and could influence the political agendas of both EU institutions and Member States. For example, the ECJ may be willing to recognize, as protected by the EU Charter, those fundamental trade union rights that all, most, or even a critical number of, Member States insist should be protected. The Court may interpret the articles of the EU Charter on fundamental trade union rights consistently with other international labour standards and could be sensitive to where national laws have protected trade union rights. A comprehensive and consistent litigation strategy could enable trade unions to use the rights guaranteed by the EU Charter to shape a system of transnational industrial relations at EU level. 19 18 See the commentary in Bercusson (2006a). 19 For this reason, it is important that trade unions should have direct access to the Court to intervene, or initiate complaints before the Court, to protect fundamental rights. For a note analysing the prospects for the ETUC’s obtaining the status of a “privileged applicant” under the EC Treaty, Article 230 see Bercusson (2000a), p. 720; (2000b), pp. 2-3. For a longer analysis, see Bercusson (1996b), p. 261. 145
Cross-border social dialogue and agreements Response of the European Court of Justice to the Charter Since its proclamation on 7 December 200l, the Charter has been cited repeatedly by all the Advocates General of the ECJ in their opinions delivered before the Court makes its final judgements, and in decisions of the Court of First Instance (CFI), which was created in order to relieve the ECJ of its growing caseload and has assisted the Court since 1989. 20 However, the ECJ remained extremely cautious in its response to the Charter as regards integrating it into the Community legal order, preferring to rely on the existing range of international human rights instruments. The legal advice and policy orientations encouraging references to the Charter, to be found in the opinions of all the Advocates General, were for long ignored or cautiously circumvented by the Court. For example, one ECJ decision involving the EU Charter was the Omega case (ECJ, 2004). This concerned an alleged restriction on free movement of services and goods as a consequence of a German regulation banning a video game in which players killed people. The German defence invoked the German constitutional principle of protection of human dignity as falling within the permissible public policy derogation to free movement. The ECJ concluded: Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that the activity is an affront to human dignity (ECJ, 2004, para. 41). In its reasoning, the Court recalled that fundamental rights form an integral part of the EU legal order and, in para. 34 of the judgement, specifically cited paras. 82-91 of the opinion of Advocate General Stix- Hackl. Paragraph 91 of that opinion stated: The Court of Justice therefore appears to base the concept of human dignity on a comparatively wide understanding, as expressed in Article 1 of the Charter of Fundamental Rights of the European Union. This Article reads as follows: “Human dignity is inviolable. It must be respected and protected” (ECJ, 2004, para. 91). 20 In the first 30 months of its existence, up to July 2003, there were 44 citations of the Charter before the European courts. For details of these 44 cases, see the appendix, prepared by Stefan Clauwaert and Isabelle Schömann, in Bercusson (2006b), pp. 633-714. 146
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CROSS-BORDER SOCIAL DIALOGUE AND AG
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Published by the International Inst
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Cross-border social dialogue and ag
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Contributors Dominique Bé, an econ
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Contributors Nathan Lillie is Assis
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Acronyms BWI Building and Wood Work
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Introduction Konstantinos Papadakis
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Introduction - Papadakis each with
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Introduction - Papadakis above. Thi
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Introduction - Papadakis tices unde
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Introduction - Papadakis role of co
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Introduction - Papadakis veaux enje
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Chapter 1 International framework a
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International framework agreements:
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Chapter 3 International framework a
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International framework agreements
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The ILO Maritime Labour Convention,
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Chapter 9 A report on the European
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A report on the European Commission
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Appendix
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