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Massimo Pallini

University of Milan
Department of Social and Political Sciences

massimo.pallini@unimi.it

meets students on thursday from 3 to 7 p.m. at room


n. 1 second floar
Materials to study for the exam

a) Text book :nstein (2009), International and omparative


bour law: current challenges, Palgrave Macmillan
A. S. Bronstein (2009), International and
comparative labour law: current
challenges, Palgrave Macmillan

b)Slides, rulings and presentations utilized during


the lessons
Time of the lessons
Wednesday h. 10,45 - 12,30
Thursday h. 8,45 - 10,15
Friday h. 8,45 - 10,15

Without break ?
EXAMS
• 21 Multiple choice tests (1 point)
• 3 open question (0 – 3 point)
• Presentation in class (0 – 5 points)

• 2017 June 27th – h. 17,30 p.m.


• 2017 July 11th – h. 17,30 p.m
Program of the course
The course provides students with an good knowledge of the regulation of
the most relevant and problematic aspects of employment relationship as
stated by European Law and by national law of European Member States by
comparison with USA law

Aims
- identify legal sources of employment relationship at international, European
and national level and understand how they interact among them;
- identify what and how individual and collective contract regulate employment
relationship and waive the law;
- acknowledge possibilities and rigidities labour law provides in organizing,
managing and downsizing personal in medium-large size companies;
- acknowledge how labour law determines directly or indirectly labour cost
within a national system
- compare differences of national labour laws and assess regulative advantages
and disadvantages.
1.2. The institutional
framework and the legal
sources in European and
International systems

Massimo Pallini
Università di Milano
Dipartimento di studi del lavoro
massimo.pallini@unimi.it
The European Union
The European Coal and Steel Community (1951)
The European Atomic Energy Community (1957)
The European Economic Community (1957)

All incorporated in the European Union (1993)

3 pillars
I. Community pillar (incorporating the ECT)
II. Common Foreign and Security Policy
III. Police and Judicial Co-operation and Criminal
matter
Artiche 5 Treaty on EU
The European Parliament, the Council, the Commission, the Court of
Justice and the Court of Auditors shall exercise their powers under the
conditions and for the purposes provided for, on the one hand, by the,
provisions of the Treaties establishing the European Communities

• The principle of attribution of powers


the EU can only act where it’s given the powers to do so

• The principle of subsidiarity in the strict legal sense


the EU should only take action where an objective can be better
achieved at the EU level than at the Member State level

• The principle of proportionality and intensity


the means used by the EU should be proportional to the objective
pursued
The institutions
The European Parliament (EP)
• Composition and election
- the EP members for each Member State are determined
proportionally according to the population*
- they are elected by direct universal suffrage
- their mandate lasts 5 years

• EP powers of control on the Commission


- formal censure (without any real significance)

• EP powers of control on the Council


- codecision art. 251 ECT (in given matters: budget, request of new
member, aids for employment, equal opportunities and
treatment of men and women in employment)
- mandatory consultation by the Council on draft directive
affecting the establishment or functioning of the common market
European Parliament Representatives (785)
Old members New Members (1.5.2004)
Italy (1957) 72 Czech Republic 20
Germany 99 Estonia 6
Netherlands 25 Cyprus 6
Belgium 22 Latvia 8
France 72 Lithuania 13
Luxembourg 6 Hungary 20
Ireland (1973) 12 Malta 5
Great Britain 72 Poland 50
Denmark 13 Slovakia 13
Greece (1981) 22 Slovenia 7
Spain (1986) 50 Croatia 12
Portugal 22 New members (1.1.2007)
Austria (1995) 17 Bulgaria 17
Finland 13 Romania 33
Sweden 18 Candidates:
Turkey (?)
The Council
- is the most important legislative institution
- is composed by a representative for each Member State*
(* the national Minister competent for the subject of the meeting)
*
a) acts by absolute majority as general rule (15 out of 28 MS),
b) acts by qualified majority (260 out of 352 votes + 16 of the member
states representing at least 65% of the population); the votes of its members
are differently weighted proportionally to their population) for regulating:a) free
movement of workers, b) establishment of the internal market, c) working
conditions, d) information and consultation of workers, e) equality between men
and women, f) employment-incentive measures, g) European Social Fund, h)
vocational training, i) economic and social cohesion.
c) acts by unanimity of its members: a) for providing the necessary (but
not expressly conferred by the Treaties) powers in order to attain one of the EC
objectives, b) for amending a proposal of the Commission, c) rights and interests
of employed people, d) social security and social protection of workers, e)
representation and collective defense of workers, f) conditions of employment
for third country nationals, g) financial contributions for promotions of
employment
Different weight of national votes
in the Council (345 votes)
Germany 29 Bulgaria 10
Great Britain 29 Austria 10
France 29 Slovakia 7
Italy 29 Denmark 7
Spain 27 Finland 7
Poland 27 Ireland 7
Romania 14 Lithuania 7
Netherlands 13 Latvia 4
Greece 12 Slovenia 4
Czech Republic 12 Estonia 4
Belgium 12 Cyprus 4
Hungary 12 Luxembourg 4
Portugal 12 Malta 3
Sweden 10 Croazia 7
The Commission
• The President and the commissioners are named by the
Goverments of the MSs and approved by the EP
• The Commission can be dismissed collectively by the EP
• It acts by absolute majority
• Each commissioner is competent for given matters, the relative
portfolio and directorates-general
*
• In a large number of cases the Commission has the exclusive right
of initiative regarding the legislative process
• It governs the ordinary and executive EU action
• It checks that the MSs properly respect their obligations and, in
negative case, can bring them before the Court
The Court of Justice
- It consists of 28 judges appointed unanimously by the MSs
- It’s assisted by 9 Advocates-General who have to bring to the Court
reasoned submissions about the cases
- The term is 6 years renewable
The rulings of the Court are not appealable
the vote of every judge is secret
*
The Court judges:
a) if a MS does not respect its obligations
b) if the acts of the Commission and of the Council have no respect
for the Treaties (a sort of “control of European constitutionality”)
c) the preliminary questions referred by the national judges on the
interpretation of European laws
- the ruling is binding for the national judges (n.j.).
- this procedure has set a direct relations between n.j. and Court
- this procedure has given to the Court a sort of “para-legislative
power”
The Court of First Instance
- It consists of 28 judges appointed unanimously by the SM
- The term is 6 years renewable

The rulings are appealable to the Court of Justice


only for incompetence, irregularities of procedure and violation of EC law
*
The Court of F.I. judges:
a) disputes between the Community and its staff
b) appeals by enterprises concerning ECSC levies,
production quotas, prices and competition
c) compensation for the disputes sub a) and b)
The European Social Fund
It’s regulated by the Council, who decides the priority objectives,
but it is administered by the Commission

It aims “to render the employment of workers easier and to


increase their geographical and occupational mobility within the
Community, and to facilitate their adaptation to industrial changes
and to changes in production systems, in particular through
vocational training and retraining” (art. 146 TCE)
*

Other EC Funds:
- European Agricultural Guidance and Guarantee Fund
- European Regional Development Fund
- European Fund against the risk of trading globalization
2. Sources and effects of the European Law
• Primary or community law:
- legal norms contained directly in the Treaties
- legally binding direct effect in MSs legal system
*
• Secondary law:
- legal norms derive from the decisions taken by European institutions using
the powers the Treaties have conferred upon them

direct: regulations (general)


decisions (personal)
legally binding
- effect indirect: directives
(need a MSs implementation)

not legally binding recommendations


(political engagement) opinions - guidelines
The doctrine of primacy of EU law
The national (even constitutional) laws contrary to primary EU
Law or EU regulations have to be considered by the national
judges null and void and may not be applied in a vertical
(State/citizen) as well as horizontal (citizen/citizen) way.
*
The s.c. Solange doctrine
Many MSs Constitutional Courts (German, Italian, French,
Spanish, Polish) do not accept the interpretation of an unlimited
primacy of EU Law; they affirm that this supremacy works so
long as the EU law is not contrary to the core national
constitutional rights. The Constitutional Courts reserve the right
to control the “constitutionality” (in the national sense) of EU
law.
The efficacy of the directives
• The directive has a legally binding but not a direct
effect in the MSs legal system.
• The directive need to be transposed in a national norm
or erga omnes collective agreement (i.e. Belgium, France,
Germany, Netherlands) by the date stated in the directive.

• The MSs has a certain discretion to choose (within the


limits given by the directive) the most appropriate way
to concretely regulate the same subject in their legal
system.
• On social matters the MSs may maintain or adopt a
more favourable regulation for the citizens and
workers than that the directive guarantees
(principle of «favor» or of «no regression»).
What happens if a MS does not implement a
directive by its established term ?
A) the s.c. self executing directives
(i.e. those state clear, precise and specific regulations that operatively do not need to be transposed
and specified in a national law to be applied in concrete)
have only vertical direct effect, but no horizontal effect

Citizen v. «State» case Citizen v. citizen case


The directives are to be applied the citizen who has lost a case against
by the national judge another citizen only because the MS
hasn’t implemented the directive has
the right to be compensated by hisMS
*
B) the s.c. not self executing directives
having neither direct vertical nor direct horizontal effect
but the national judge must prefer among the possible interpretations of
the national law the closest one to the directive
the Commission can bring the MS before the Court of Justice and ask for
it to be condemned to pay a penalty payment
3. International legal sources
• ILO Conventions:
- are binding on the ILO Member States only on ratification
- are binding on ILO Member States citizens and direclty applicable in
individual litigation only:
a) if they are ratified in «monist» legal systems (e.g. France, Spain, Italy,
most Latin American countries)
b) if they are also implemented by national law in «dualist» legal systems
(e.g. USA, UK, Australia, Canada, Scandinavian countries)
*
• WTO Treaty:
is directly legally binding on the WTO Member States, but it is
not binding on ILO Member States citizens and it is not direclty
applicable in individual litigation
3. EU competences regarding labour law

Massimo Pallini
University of Milan
The instrumental aim of the ECT social provisions
to reach the economic objectives
• Spaak and Ohlin report (1956) any EC competence
in social and labour law and full sovereignty of the MSs
• Only non-inflationary economic growth and a
competitive market can guarantee good and secure
conditions of employment
Article 2 ECT
The Community shall have as its task, by establishing a common market
and an economic and monetary union and by implementing common
policies or activities referred to in Articles 3 and 4, to promote throughout
the Community a harmonious, balanced and sustainable development of
economic activities, a high level of employment and of social
protection, equality between men and women, sustainable and non-
inflationary growth, a high degree of competitiveness and convergence
of economic performance, a high level of protection and improvement of
the quality of the environment, the raising of the standard of living and
quality of life, and economic and social cohesion and solidarity among
Member States. (emendement of Treaty of Amsterdam 1997)
Fundamental freedoms and rights
of the person as an individual

Article 6 TEU
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.

The Union respects 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.
Consequences of a breach by a MS (Art. 7 TEU)

 the Council, acting by a majority of four fifths of its members after


obtaining the assent of the European Parliament, may determine that there
is a clear risk of a serious breach by a Member State of principles
mentioned in Article 6, and address appropriate recommendations to that
State. (…)
 The Council, meeting in the composition of the Heads of State or
Government and acting by unanimity on a proposal by one third of the
Member States or by the Commission and after obtaining the assent of the
European Parliament, may determine the existence of a serious and
persistent breach by a Member State of principles mentioned in Article 6,
after inviting the government of the Member State in question to submit its
observations.
 (…) the Council, acting by a qualified majority, may decide to
suspend certain of the rights deriving from the application of this Treaty
to the Member State in question, including the voting rights of the
representative of the government of that Member State in the Council. In
doing so, the Council shall take into account the possible consequences of
such a suspension on the rights and obligations of natural and legal
persons.
Fundamental social rights of the person as a
component of an interclassist and pluralist society

TITLE XI, Chapter 1 SOCIAL PROVISIONS

Article 136 ECT (now art. 152 TFEU)


The Community 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.
To this end the Community and the Member States shall implement
measures which take account of the diverse forms of national practices, in
particular in the field of contractual relations, and the need to maintain the
competitiveness of the Community economy.
In 2008 the Treaty of Lisbon has incorporated the
Charter of Nice in the Treaty on functioning of EU

NEW Article 6 TEU


1. The Union recognises the rights, freedoms and principles set out in
the Charter of Fundamental Rights of the European Union of 7
December 2000, as adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties.

but

The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be
interpreted in accordance with the general provisions in Title VII of
the Charter governing its interpretation and application and with
due regard to the explanations referred to in the Charter
Treaty of Lisbon has only planned, but not
statued the accession to ECHR

NEW Art. 6 TEU


2. The Union shall accede to the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Such
accession shall not affect the Union's competences as defined in
the Treaties.
3. Fundamental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms
and as they result from the constitutional traditions common to
the Member States, shall constitute general principles of the
Union's law.
MSs Cooperation on social policy
(art.140 ECT – now art. 156 TFEU)
the Commission encourages cooperation between the MSs and
facilitates the coordination of their action in all social policy fields,
particularly in matters relating to:
— employment,
— labour law and working conditions,
— basic and advanced vocational training,
— social security,
— prevention of occupational accidents and diseases,
— occupational hygiene,
— the right of association and collective bargaining between
employers and workers.
*
To this end, the Commission acts in close contact with Member States
by making studies, delivering opinions and arranging consultations
both on problems arising at national level and on those of concern to
international organisations.
EU Legislative Competence on social matters
(art. 137 ECT – 153 TFEU )
The Council may adopt, by means of directives, minimum
requirements for gradual implementation on:

- improvement of the working environment


to protect workers' health and safety
- working conditions by qualified majority
- information and consultation (art 251 ECT – 294 TFEU)
- integration of excluded persons
- equality between men and women
*
- social security and social protection by unanimity
*
- protection of unemployed workers by, unanimity but the C.
- representation and collective defence unanimously may decide
- employment for third-country nationals to apply art. 294 Tfeu

the positive vote of majority of European parliament is


required for all these matters (codecision procedure)
Approximation of national law for the functioning of the
common market (art 100 TCE – now art. 122 TFEU)

The Council, acting in accordance with the procedure


referred to in art. 251 and after consulting the Economic
and Social Committee, adopts the measures for the
approximation of the provisions laid down by law,
regulation or administrative action in Member States
which have as their object the establishment and
functioning of the internal market.

By virtue of this norm the directives on collective


dismissal, transfer of undertakings, employer insolvency
have been adopted.
• A Member State may entrust management and labour, at their
joint request, with the implementation of directives by a
collective agreement with an erga omnes efficacy

• the Member States keep the right of defining the fundamental


principles of their social security systems

• the Member States can maintain or introduce more stringent


protective measures compatible with the Treaty.

* * *

pay
There isn’t any legislative competence on right of association
art. 137 § 5 EC (now art. 153 TFEU) right to strike
right to impose
lock-outs
TITLE VIII - EMPLOYMENT
(arts.125-130 ECT added by the Treaty of Amsterdam 1998)
now arts. 145-150 TFEU

coordinated strategy for employment and


particularly for promoting a skilled, trained and
adaptable workforce and labour markets
responsive to economic change with a view to
achieving the objectives defined in art. 2 TEU and
in art.2 ECT.

Open Method of Coordination


Coordination procedure (art.129 ECT – art. 149 TFEU)
Conclusions of the Council
Every three years the Council assesses the employment situation in the
Community and considers preliminary measures thereon

Guidelines of the Council


the Council draws up guidelines which MSs shall take into account in their
employment policies (by qualified majority on a proposal from the Commission
and after consulting the EP, ESC, RC and EC – these guidelines must be
consistent with the economic guidelines)
National reports
Each MS provides the Council and the Commission with an annual report on
the measures taken to implement its new employment policy in the light of the
EC guidelines

Examination of the Council


The Council, on the basis of the national reports, carries out an examination of
the implementation of the MSs employment policies. The Council, by qualified
majority on a recommendation from the Commission, may make
recommendations to MSs.

Joint annual report of the Council and the Commission


On the basis of the results of that examination, the Council and the
Commission make a joint annual report on the employment situation and on the
implementation of the guidelines.
Means for encouraging the implementation
of the EC guidelines
(art. 129 ECT – art. 149 TFEU)

The Council may:


a) take incentive measures
b) support the MSs action through initiatives aimed at
developing exchanges of information and best practices,
providing comparative analysis and advice as well as
promoting innovative approaches and evaluating
experiences, in particular by recourse to pilot projects.
*
These measures do not include
harmonisation of the laws and regulations of
the Member States
European Collective Bargaining
and
Social Dialogue
Collective bargaining
Collective bargaining consists of negotiations
between an employer and a group of
employees so as to determine the conditions of
employment. The result of collective
bargaining procedures is a collective
agreement. Employees are often represented in
bargaining by a union or other labor
organization.
The different level of collective agreements
National level

Industry level (manifacturing, building, etc.)

Local level (Land, Region, State, etc.)

Plant level

Multilevel bargaining
The different efficacy of collective agreements
 Contractual efficacy (Scandinavian Countries, Italy) binding only on the
parties to the collective bargaining and their respective members

 Statutory efficacy (Belgium, France, Germany, Portugal, Spain): Public


Authority can make them applicable to third Parties, i.e. non unionized
workers, not represented employers)

 No efficacy (UK): without any legal binding efficacy for employees unless
they have accepted it by their individual employment contract

 Closed shop efficacy (USA): «representatives designated or selected for the


purposes of collective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representatives of all
the employees in such unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or other conditions of
employment” USA Code § 159.
Collective bargaining:
art. 153 TFEU (art. 137 ECT)
1. With a view to achieving the objectives of Article 151,
the Union shall support and complement the
activities of the Member States in the following
fields:
………(omissis)…….
e) the information and consultation of workers;
f) representation and collective defence of the interests of
workers and employers, including co-determination,
subject to paragraph 5;

5. The provisions of this article shall not apply to pay,


the right of association, the right to strike or the
right to impose lock-outs.
Art. 156 TFEU (ex 140 ECT)
With a view to achieving the objectives of Article 151 and
without prejudice to the other provisions of this Treaty, the
Commission shall encourage cooperation between the
Member States and facilitate the coordination of their
action in all social policy fields under this chapter,
particularly in matters relating to:
………..(omissis)………………….
— the right of association and collective bargaining
between employers and workers.
*
To this end, the Commission shall act in close contact with
Member States by making studies, delivering opinions and
arranging consultations both on problems arising at
national level and on those of concern to international
organisations.
So this provisions of the Treaty exclude a EU
regulative power of positive harmonization on
collective bargaining and trade unions
representation,

…. but not, according to Court of Justice


jurisprudence, negative harmonization !

It means that national regulation of these matters


must be respectful of the other prescirptive
provisions of the Treaty (especially economic
freedoms).
Court of Justice ruling
Albany International C-67/96
 There is not a general exemption of collective agreements
from art. 81 TCE (now art.101 TFEU) because they are
able to produce restrictions of competition

 However, the social policy objectives pursued by such


agreements would be seriously undermined if management
and labour were subject to Art. 81 TCE Treaty when seeking
jointly to adopt measures to improve conditions of work and
employment.

 Therefore agreements concluded in the context of collective


negotiations between management and labour in pursuit of
such objectives must, by virtue of their nature and purpose,
be regarded as falling outside the scope of Art. 81 TCE
USA - Labor Management Relations Act
“Industrial strife which interferes with the normal flow of commerce
and with the full production of articles and commodities for commerce,
can be avoided or substantially minimized if employers, employees, and
labor organizations each recognize under law one another’s legitimate rights
in their relations with each other, and above all recognize under law that
neither party has any right in its relations with any other to engage in acts or
practices which jeopardize the public health, safety, or interest.
It is the purpose and policy of this chapter, in order to promote the full flow
of commerce, to prescribe the legitimate rights of both employees and
employers in their relations affecting commerce, to provide orderly and
peaceful procedures for preventing the interference by either with the
legitimate rights of the other, to protect the rights of individual employees in
their relations with labor organizations whose activities affect commerce, to
define and proscribe practices on the part of labor and management which
affect commerce and are inimical to the general welfare, and to protect the
rights of the public in connection with labor disputes affecting commerce”.
Court of Justice ruling
Alemo-Herron C 426/11
Directive 2001/23/EC on the approximation of the laws of
the Member States relating to the safeguarding of
employees’ rights in the event of transfers of undertakings
precludes a Member State from providing, in the event of a
transfer of an undertaking, that dynamic clauses referring
to collective agreements negotiated and adopted after
the date of transfer are enforceable against the
transferee, where that transferee does not have the
possibility of participating in the negotiation process of
such collective agreements concluded after the date of the
transfer.
Social dialogue: art. 154 TFEU (ex art. 138 ECT)
Necessary phase
• before submitting proposals in the social policy field, the
Commission must consult management and labour on the
possible direction of Community action.
• If, after such consultation, the Commission considers
Community action advisable, it shall consult management and
labour on the content of the envisaged proposal. Management
and labour shall forward to the Commission an opinion or,
where appropriate, a recommendation.

Facoltative phase
On the occasion of such consultation, management and labour
may inform the Commission of their wish to initiate the
process provided for in art.155 autonomous bargaining
The duration of the procedure shall not exceed 9 months, unless
the management and labour and the Commission decide jointly
to extend it.
art. 155 TFEU (ex 139 ECT)
the dialogue at Community level may lead to contractual relations,
including agreements.
Agreements concluded at Community level need to be
implemented in MS’s legal system:

A) Contractual implementation
in accordance with the procedures and practices specific to
management and labour and the Member States
or
B) Istitutional implementation
in matters covered by art.153, at the joint request of the signatory
parties, by a Council decision on a proposal from the
Commission.
The Council shall act by qualified majority, except where the
agreement in question contains one or more provisions relating to
one of the areas for which unanimity is required pursuant to
Article 153. In that case, it shall act unanimously.
The actors of the social dialogue

BUSINESS 1 confederation of the national associations of


private undertakings
UEAPMA confederation of the national associations of
private medium and small undertakings
CEEP confederation of the national association of the
public undertakings
ETUC european trade unions confederation

*
The unsolved problem of the selective criteria

Court of First Istance, sez.IV, ruling 17.6.1998, UEAPMA


RULINGS TO READ by tomorrow

• Albany International C-67/96


• Alemo-Herron C 426/11
RULINGS TO READ by next wednesday

• German airport services C 286-2003


• Italian airport services C 460-02

• Marible c. Belgium C 75-97


• Job center C 55-96
5.6. EU internal market
regulation

Massimo Pallini
Università di Milano
The purpose of establishing
one open-competitive market
art. 3 lett. g ECT:
One of the most important EC purposes is establishing “…
a system ensuring that competition in the internal
market is not distorted”

art. 4 ECT
The way to reach this objective is “… the adoption of
an economic policy which is based on the close
coordination of Member States‘ economic
policies, on the internal market and on the definition
of common objectives, and conducted in accordance
with the principle of an open market economy
with free competition”.
The Member States have a direct
obligation of fulfilling a national open-
competitive market too

Art.10 ECT
positive obligation: Member States shall take all
appropriate measures, whether general or particular,
to ensure fulfilment of the obligations arising out of this
Treaty or resulting from action taken by the institutions
of the Community. They shall facilitate the
achievement of the Community's tasks.
negative obligation: They shall abstain from any
measure which could jeopardize the attainment of the
objectives of this Treaty.
FREE MOVEMENT OF GOODS

Art. 23 ECT (now art. 28 TFEU)


The Community shall be based upon a customs
union which shall cover all trade in goods and which
shall involve the prohibition between Member
States of customs duties on imports and exports
and of all charges having equivalent effect, and
the adoption of a common customs tariff in their
relations with third countries.
*
Art. 28 and 29 ECT (now artt. 34 and 35 TFEU)
Quantitative restrictions on imports (and exports –
art.29) and all measures having equivalent effect
shall be prohibited between Member States.
The mutual recognition principle

“every national commercial norm which could obstruct


directly or indireclty, actually or potentially, EC cross-
borders trades must be considered as measures having
equivalent effect to a quantitative restriction”
CGCE, sent. 11.7.1974, Dassonville
CGCE, sent. 20.2.1979, Cassis de Dijon

so the freedom of movement of goods has been


transformed from an antidiscriminatory rule in a pro-
competitive and liberalizing rule, even regarding on the
national markets.
FREE MOVEMENT OF SERVICES

Art. 49 ECT (now art. 56 TFEU)


“ … restrictions on freedom to provide services
within the Community shall be prohibited in respect
of nationals of Member States who are established
in a State of the Community other than that of the
person for whom the services are intended” .
*
Art. 50 ECT (now art. 57 TFEU)
“ … the person providing a service may, in order to
do so, temporarily pursue his activity in the State
where the service is provided, under the same
conditions as are imposed by that State on its
own nationals”.
The slower path of
the mutual recognition principle
with regard to services freedom

It was affirmed by the CJ for the first time in the case


3.2.1982, C-62 e 63/81, Seco,
but the real leading case usually is considered the case CJ
25.7.1991, C-76/90, Sager v. Dennemeyer & co Ltd)

for long time (until 2000) the CJ has been enforcing this
principle just for cross-borders services, not for national
services
The principle of free competition

Art. 81 ECT (now art. 101 TFEU)


… all agreements between undertakings,
decisions by associations of undertakings and
concerted practices which may affect trade
between Member States and which have as their
object or effect the prevention, restriction or
distortion of competition within the common market

are prohibited
Those agreements or pratices which:

“a) directly or indirectly fix purchase or selling prices or any


other trading conditions;
b) limit or control production, markets, technical development,
or investment;
c) share markets or sources of supply;
d) apply dissimilar conditions to equivalent transactions with
other trading parties, thereby placing them at a competitive
disadvantage;
e) make the conclusion of contracts subject to acceptance by the
other parties of supplementary obligations which, by their
nature or according to commercial usage, have no connection
with the subject of such contracts”

are automatically void in the Member States legal systems


Derogations can be authorized for
categories of agreements and of practices which
contribute to

a) improving the production or


b) improving the distribution of goods or
c) promoting technical or economic progress

while allowing consumers a fair share of the


resulting benefit,

and which does not:


a) impose on the undertakings concerned restrictions
which are not indispensable to the attainment of these
objectives;
b) afford such undertakings the possibility of eliminating
competition in respect of a substantial part of the
products in question.
Prohibition of abuse of dominant position: art 82 TCE
Such abuse may, in particular, consist in: (now art. 102 TFEU)

a) directly or indirectly imposing unfair purchase or


selling prices or other unfair trading conditions;
b) limiting production, markets or technical
development to the prejudice of consumers;
c) applying dissimilar conditions to equivalent
transactions with other trading parties, thereby placing
them at a competitive disadvantage;
d) making the conclusion of contracts subject to
acceptance by the other parties of supplementary
obligations which, by their nature or according to
commercial usage, have no connection with the subject
of such contracts.
Public undertakings and
Undertakings to which MSs grant special rights
(art. 86 ECT – now art. 106 TFEU)

No absolute exemption
In favour of them Member States must neither enact nor maintain
in force any measure contrary to the rules of free-
competition
Relative exemption
Undertakings entrusted with the operation of services of
general economic interest are subjected to the rules on
competition, in so far as the application of such rules does not
obstruct the performance, in law or in fact, of the particular
tasks assigned to them.
Check of proportionality of the restrictive effects
The development of trade must not be affected to such an extent
as would be contrary to the interests of the Community.
The Commission ensures the application of the provisions of
this principle addressing appropriate directives or decisions to
MSs
The transformation of the competition rules
from private law in public law
by ECJ jurisprudence

artt. 3,4,10 e 86 ECT

art. 81 ECT Member States


art. 82 ECT indirect obligation
AIDS GRANTED BY STATES
Art. 87 ECT (now art. 107 TFEU)

any aid granted by a Member State or


through State resources in any form
whatsoever which distorts or threatens to
distort competition by favouring certain
undertakings or the production of certain
goods

is incompatible with the common market


and void.
Compatible national aids

a) aid having a social character, granted to individual


consumers, provided that such aid is granted
without discrimination related to the origin of the
products concerned;
b) aid to make good the damage caused by natural
disasters or exceptional occurrences;
[c) aid granted to the economy of certain areas of the
Federal Republic of Germany affected by the
division of Germany, in so far as such aid is
required in order to compensate for the economic
disadvantages caused by that division.]
The Commission and the Council may authorize

a) aid to promote the economic development of


areas where the standard of living is abnormally low
or where there is serious underemployment;
b) aid to promote the execution of an important
project of common European interest;
c) aid to facilitate the development of certain
economic activities or of certain economic
areas;
d) aid to promote culture and heritage conservation;
e) such other categories of aid as may be
specified by decision of the Council acting by a
qualified majority on a proposal from the
Commission.
Free Movement of Persons

art. 3 lett.c) TCE:


“For the purposes set out in Article 2, the
activities of the Community shall include,

c) an internal market characterised by the
abolition, as between Member States, of
obstacles to the free movement of goods,
persons, services and capital;”
Free movement of persons
It’s not an autonomous right, but it’s an instrumental
right to reach the economic objectives of the
Community

the right of free movement concerns just the workers


or must be linked to an offer of employment actually
made. art. 45 TFEU (ex art.39 ECT)
*
The Court of justice rulings have later extendend the
right to all the persons look for work on the territory
of another MS (Case Levin C-53/81)
Citizenship of the Union
Only the Treaty of Maastricht on 1991 has established the
“Citizenship of the Union”:

“ Every person holding the nationality of a Member State shall


be a citizen of the Union. Citizenship of the Union shall
complement and not replace national citizenship. (art.17 ECT).

Just symbolic relevance because:

“Every citizen of the Union shall have the right to move and
reside freely within the territory of the Member States, subject to
the limitations and conditions laid down in this Treaty and by
the measures adopted to give it effect” (art.18 EUT).
Free movement of workers

The Community notion of “worker” (case Bernini 1992)


The notion cannot be defined by reference to national laws

The Court of Justice has elaborated 3 criteria:


performance of service
in subordination
for remuneration

No: purely ancillary and marginal activity;


Yes: part-time contracts
Rights of free movement
Right to leave:
MS of origin may not demand any exit visa or equivalent
document, but just identity card or passport
Right to access:
 passport and declaration of residence can be requested
 a reasonable time must be granted: at least 5 years
 it’s free until 3 months (e.g. temporary work)
Right of residence:
 instrumental to work
 can not be limited by MSs
 without time limits until the person is employed
 can be restricted but by no less than 12 months, if the
worker has been involuntary unemployed for more than 12
consecutive months in that MS
 residence permit have to be issued and renewed free of charge
the MSs are obliged to simplify the procedure
Right to permanent residence
The right to remain permanently in the territory in case of ceased
occupational activity (Reg. 1251/70) belong to :
a) a worker who has reached the age for entitlement to an old age
pension in that host MS, has been employed at least the last 12
months, has resided there for more than 3 years;
b) a worker who – after 2 years of residence in that MS - ceases to
work as result of permanent incapacity to work. If the
incapacity is caused by ah accident at work or an occupational
disease entitling him to a public pension, no conditions are
imposed on the lenght of service;
c) a worker who – after 3 years of continuous employment and
residence in that MS – works as employed person in the territory
of another MS, while retaining his residence in the territory of the
first State, to which returns each day or at least once a week;
d) a worker who married a national of that MS or a spouse who
has lost the nationality of that State by marriage of that worker
The right of residence of worker‘s family
Members of the worker’s family who are residing with him
enjoy the same rights,
even after his death, if the worker dies having acquired the
right to remain in the MS permanently:

- Right to settle
- Right to work
- Right to attend general educational and vocational courses

Members of the family:


- Spouse
- descendants under 21 years or dependent descendants
- dependent relatives in the ascending line of the worker and of
his/her spouse
The right of residence of worker‘s family
If the worker dies before having acquired the right to
remain in the MS permanently, members of his family
may to keep on staying on the condition that:

a) the worker, on the day of his death, has resided continuously


there for at least 2 years;
b) the death has been caused by an accident at work or an
occupational disease;
c) the spouse is a national of that MS or has lost the
nationality of that State by marriage of that worker
Equal Treatment Principle
Art.18 TFEU (ex 12 ECT):
… any discrimination on grounds of nationality shall be
prohibited.

Art. 45 TFEU (ex 39 ECT):


Such freedom of movement shall entail the abolition of
any discrimination based on nationality between workers
of the Member States as regards employment,
remuneration and other conditions of work and
employment.

Prohibition of indirect discrimination: formally neutral


but in fact discriminatory (case foreign language assistants C-259/91)
Exceptions to free movement
• Employment in Public Sector
it has to involve direct or indirect partecipation in the exercise
of powers conferred by law in the discharge of functions
whose purpose is to safeguard the general interests of the State
or of other Public Authorities

• Public Policy and Security reasons:


- the restrictive meausure may be adopoted exclusively on a
personal conduct
- this limit cannot be applied to resident foreigners

• Public Health reasons:


- this limit cannot be applied for cost saving reasons
- this limits cannot be applied to resident foreigners
Self employed workers free movement

A) Art. 49 TFEU (ex 43 ECT) Freedom of establishment


… Freedom of establishment shall include the right to take up and pursue
activities as self-employed persons and to set up and manage undertakings, in
particular companies or firms within the meaning of the second paragraph of
Article 48, under the conditions laid down for its own nationals by the law of
the country where such establishment is effected, subject to the provisions of the
chapter relating to capital.
*
B) Art. 56 TFEU (ex 49 ECT) Freedom to provide services
… restrictions on freedom to provide services within the Community shall be
prohibited in respect of nationals of Member States who are established in a
State of the Community other than that of the person for whom the
services are intended.
Recognition of qualifications and diplomas

Art. 53 TFEU (ex 47 ECT)


In order to make it easier for persons to take up and pursue
activities as self-employed persons, the Council shall, acting in
accordance with the procedure referred to in Article 251, issue
directives for the mutual recognition of diplomas, certificates
and other evidence of formal qualifications.

Court of Justice ruling:


In case of lacking directive everyone has the right
to evaluation of the equivalence of his/her
diploma (case Vlassopolou 1991)
CONVENTION ON THE LAW APPLICABLE TO
CONTRACTUAL OBLIGATIONS (Rome on 1980 June 19th)

Regulation CE 593/2008

Article 3 - Freedom of choice


1. A contract shall be governed by the law chosen by the parties. The
choice must be expressed or demonstrated with reasonable
certainty by the terms of the contract or the circumstances of the
case. By their choice the parties can select the law applicable to
the whole or a part only of the contract. …(omissis)

3. The fact that the parties have chosen a foreign law, whether or not
accompanied by the choice of a foreign tribunal, shall not, where
all the other elements relevant to the situation at the time of the
choice are connected with one country only, prejudice the
application of rules of the law of that country which cannot be
derogated from by contract, hereinafter called "mandatory
rules".
Art. 8 (ex 6)
Individual employment contracts
1. Notwithstanding the provisions of Article 3, in a contract of
employment a choice of law made by the parties shall not have
the result of depriving the employee of the protection afforded
to him by the mandatory rules of the law which would be
applicable under paragraph 2 in the absence of choice.
2. Notwithstanding the provisions of Article 4, a contract of
employment shall, in the absence of choice in accordance with
Article 3, be governed:
(a) by the law of the country in which or from which the employee
habitually carries out his work in performance of the contract,
even if he is temporarily employed in another country ; or
(b) if the employee does not habitually carry out his work in any one
country, by the law of the country in which the place of
business through which he was engaged is situated;
(c) … unless it appears from the circumstances as a whole that the
contract is more closely connected with another country, in
which case the contract shall be governed by the law of that
country.
Art. 9 (ex 7)
Overriding mandatory rules
1. Overriding mandatory provisions are provisions the
respect for which is regarded as crucial by a country
for safeguarding its public interests, such as its
political, social or economic organisation, to such an
extent that they are applicable to any situation falling
within their scope, irrespective of the law otherwise
applicable to the contract under this Regulation.

2. Nothing in this Regulation shall restrict the


application of the overriding mandatory provisions of
the law of the forum.
Art. 21 (ex 18)
Public policy of the forum

The application of a provision of the law of any


country specified by this Regulation may be
refused only if such application is manifestly
incompatible with the public policy (ordre
public) of the forum.
Art. 23 (ex 20)
Precedence of Community law

This Convention shall not affect the application of


provisions which, in relation to particular matters,
lay down choice of law rules relating to contractual
obligations and which are or will be contained in
acts of the institutions of the European
Communities or in national laws harmonized in
implementation of such acts.
The conflict between freedoms of movement
and national labour law
a) Free movement of goods (art. 28 ECT)
- 1990/91 Sunday Trading Saga
- CGCE sent. 24.11.1993, Keck;
Mutual recognition principle concerns just characters and
qualities of goods but not ways of sale, of distribution or of
advertisement
*
b) Free movement of services (art. 49 ECT)
CGCE sent. 27.3.1990, Rush Portuguesa
European Law doesn’t impede the extension of the application of
the national laws or of the national collective agreements to the
posted workers, even if the level of protection of the host States
are higher than the minimum standard provided from the resulting
European Law
Directive 96/71/CE

• 'posted worker` means a worker who, for a


limited period (how long ?), carries out his work
in the territory of a Member State other than
the State in which he normally works.

• the definition of a worker is that which applies


in the law of the Member State to whose
territory the worker is posted
The undertakings must apply to workers the conditions of
employment covering the following matters which, in the
Member State where the work is carried out, are laid down:
- by law, regulation or administrative provision, for all sectors
- or by collective agreements universally applicable only for
the building sector

a) maximum work periods and minimum rest periods;


b) minimum paid annual holidays;
c) the minimum rates of pay, including overtime rates;
d) the conditions of hiring-out of workers;
e) health, safety and hygiene at work;
f) protective measures regarding pregnant women or women
who have recently given birth, of children and of young
people;
g) equality of treatment between men and women and other
provisions on non-discrimination.
The host Member State
may decide autonomously
the application to the posted workers of

• terms and conditions of employment on matters other


than those expressly listed in the art. 3 par.1 of the
directive in the case of public policy provisions
(national or international ?)

• terms and conditions of employment laid down in the


collective agreements universally applicable
concerning activities other than building activities
What are the collective agreements
“universally applicable” ?
• collective agreements which must be observed by all
undertakings in the geographical area and in the
profession or industry concerned.

In the absence of a system for declaring collective


agreements of universal application:

• collective agreements which are generally applicable to


all similar undertakings in the geographical area and in
the profession or industry concerned, and/or
• collective agreements which have been concluded by the
most representative employers' and labour
organizations at national level and which are applied
throughout national territory.
The application of collective agreements must ensure
the equality of treatment
between national and foreign undertakings

Equality of treatment is deemed to exist where national


undertakings in a similar position:

- are subject, in the place in question or in the sector


concerned, to the same obligations as posting
undertakings
and
- are required to fulfil such obligations with the same
effects.
Court of Justice jurisprudence
(sent. 15.3.2001, Mazzoleni; sent. 25.10.2001 Finalarte;
sent. 24.1.2002, Portugaia Construcoes Lda)

European Law doesn’t impede the extension of the application of


the national laws or of the national collective agreements to the
posted workers, even if the level of protection of the host States are
higher (and thus more expensive) than the minimum standard
provided from the resulting European Law.

This operation is, nevertheless, subject to three tests to be


considered responding to public policy provisions:
a) Equal treatment (formal and substantial) between national
and transnational firms;
b) Effective and genuine protection of the posted workers;
c) Proportionality between the need of protection and the
limitation of the free movement of the services
The s.c. Bolkestein directive
of liberalization of service (EC/2006/123)
the original proposal was to up-rise the “Country of
origin principle ”, for which every firm should be
subjected not only for the conditions of access but
even for the conditions of exercise solely to the law
of the Country in which the firm is established, whilst
the host Member States can not impose restriction to
the services - making of it a founding right of the
freedom of providing services in the internal market
(art.16).

This principle has been formally cancelled in the


final approved version of the directive.
A strengthened mutual regognition principle (art.16)
The Member State in which the service is provided shall ensure
free access to and free exercise of a service activity within its
territory.
Member States shall not make access to or exercise of a service
activity in their territory subject to compliance with any
requirements which do not respect the following principles:
a) no-discrimination: the requirement may be neither directly nor
indirectly discriminatory with regard to nationality or, in the case
of legal persons, with regard to the Member State in which they
are established;
b) necessity: the requirement must be justified for reasons of public
policy, public security, public health or the protection of the
environment;
c) proportionality: the requirement must be suitable for attaining
the objective pursued, and must not go beyond what is necessary
to attain that objective.
What effect on national labour law ?
Art. 17 § 1 of the Bolkestein directive explicitly
provides that “matters covered by Directive
96/71/EC ” are excluded from the application of
the principle of freedom of services affirmed by
the art. 16
but ….
the exclusion of the “matters covered by
Directive 96/71/EC” doesn’t mean neither to
exclude the whole national labour law nor to
authorize the applying of the whole host Member
State labour law to posted workers
Unsatisfying answers of the
«enforcement» directive 2014/67
The Directive establishes a common framework of a set
of appropriate provisions, measures and control
mechanisms necessary for better and more uniform
implementation, application and enforcement in practice
of Directive 96/71/EC, including measures to prevent
and sanction any abuse and circumvention of the
applicable rules and is without prejudice to the scope of
Directive 96/71/EC.
In order to determine whether an undertaking genuinely performs
substantial activities, other than purely internal management
and/or administrative activities, the competent authorities shall make
an overall assessment of all factual elements characterising those
activities, taking account of a wider timeframe, carried out by an
undertaking in the Member State of establishment, and where
necessary, in the host Member State. Such elements may include in
particular: (a) the place where the undertaking has its registered office
and administration, uses office space, pays taxes and social security
contributions and, where applicable, in accordance with national law has
a professional licence or is registered with the chambers of commerce
or professional bodies; (b) the place where posted workers are recruited
and from which they are posted; (c) the law applicable to the contracts
concluded by the undertaking with its workers, on the one hand, and
with its clients, on the other; (d) the place where the undertaking
performs its substantial business activity and where it employs
administrative staff; (e) the number of contracts performed and/or the
size of the turnover realised in the Member State of establishment,
taking into account the specific situation of, inter alia, newly established
undertakings and SMEs.
In order to assess whether a posted worker temporarily carries
out his or her work in a Member State other than the one in which
he or she normally works, all factual elements characterising such
work and the situation of the worker shall be examined. Such
elements may include in particular: (a) the work is carried out for a
limited period of time in another Member State; (b) the date on which
the posting starts; (c) the posting takes place to a Member State other
than the one in or from which the posted worker habitually carries out
his or her work according to Regulation (EC) No 593/2008 (Rome I)
and/or the Rome Convention; (d) the posted worker returns to or is
expected to resume working in the Member State from which he or
she is posted after completion of the work or the provision of services
for which he or she was posted; (e) the nature of activities; (f) travel,
board and lodging or accommodation is provided or reimbursed by the
employer who posts the worker and, if so, how this is provided or the
method of reimbursement; (g) any previous periods during which the
post was filled by the same or by another (posted) worker
Rulings to read by the next week

• LAVAL C 341-2005
• Luxembourg C 319-06
• VIKING C 438-2005
• Ruffert C 346-06
• IKRALIS C 201/15
• Bundesdruckerei GmbH C 549/13
• RegioPost GmbH C 115/14
Equal treatment of men and women
art. 3 co. 2 (as amended by Treaty of Amsterdam)

In all the activities … the Community shall


aim to eliminate inequalities, and to
promote equality, between men and
women.
Equal pay for men and women
art.157 TFEU(ex 141 ECT)
“Each Member State shall ensure that the principle of
equal pay for male and female workers for equal work or
work of equal value is applied”.

‘pay’ means the ordinary basic or minimum wage or


salary and any other consideration, whether in cash or in
kind, which the worker receives directly or indirectly, in
respect of his employment, from his employer.

Equal pay without discrimination based on sex means:


a) that pay for the same work at piece rates shall be
calculated on the basis of the same unit of measurement;
b) that pay for work at time rates shall be the same for the
same job.
EU and MSs Competences and Obligations

Positive law harmonization

The Council, acting in accordance with the procedure


referred to art. 294 TFEU (ex 251 ECT) (q.m.v.),
and after consulting the Economic and Social
Committee, adoptes measures to ensure the application
of the principle of equal opportunities and equal
treatment of men and women in matters of
employment and occupation, including the principle of
equal pay for equal work or work of equal value.
Secondary EU law

- Directive 75/117 relating to the application of equal pay


- Directive 76/207 relating to the implementation of the
principle of equal treatment as regards access to
enployment, vocational training and promotions and
working conditions (amended by Directive 2002/73)
- Directive 79/7 relating to the implementation of the principle
of equal treatment as regards social security services
- Directive 86/378, relating to the implementation of the
principle of equal treatment in occupational social security
schemes
- Directive 97/80, on the burden of proof in cases of
discrimination based on sex
Positive discriminations
Art. 157 TFEU
(ex 141 ECT as amended by Treaty of Amsterdam)
The principle of equal treatment does not prevent any
Member State from maintaining or adopting measures
providing for specific advantages in order to make it easier
for the underrepresented sex to pursue a vocational activity
or to prevent or compensate for disadvantages in professional
careers.
*
female quotas matter
CJ ruling: Kalanke v. City of Bremen, C 450/93 (quotas of
automatic nature are considered unlawful)
CJ ruling: Marshall v. Land Noordrhein Westfalen, C 409/95
(quotas are considered lawful if the rule provides an objective
assessment which takes account of all criteria specific to the
individual candidates and overrides the priority accorded to female
candidates where one or more of those criteria tilts the balance in
favour of the male candidate
Vertical efficacy
• CJ ruling: DEFRENNE II
• CJ ruling: NIMZ, 1991
Indirect discrimination
“Indirect discrimination shall exist where an apparently
neutral provision, criterion or practice disadvantages a
substantially higher proportion of the members of one sex
unless that provision, criterion or practice is appropriate
and necessary and can be justified by objective factors
unrelated to sex” (art. 2 co. 2 directive 97/80)
*
CJ ruling: Jenkins v. Kingsgate, C-96/80 (hourly salary
rate for part-time workers 10% lower than fulltime workers)
CJ ruling: Hartz v. Bilka, C-243/95 (access to a pension
under a company scheme requiring al least 15 years full time
over a total period of 20 years)
CJ ruling: Nimiz v. Hamburg, C-184/89 (collective wage
agreement excluding passage to a higher salary bracket for
the workers working less than ¾ of full time)
Exceptions
• Nature of the activity
In case, by reason of the nature or the context
in which the activity has to be carried out, the
sex of the worker constitutes a determining
factor (CJ ruling, C 273/97, Royal marines)

• Protection of women
as regards pregnancy and maternity
Burden of proof
Directive 97/80 reverses the proof provided the
plaintiff establishes the fact from which it may
be presumed that there has been direct or
indirect discrimination

statistic data is considered a proof


The Treaty of Amsterdam has extended the
prohibition to other causes of discriminations

Art. 19 TFEU (ex 13 ECT)


1. Without prejudice to the other provisions of this Treaty and
within the limits of the powers conferred by it upon the
Community, the Council, acting unanimously on a proposal from
the Commission and after consulting the European Parliament,
may take appropriate action to combat discrimination based on
sex, racial or ethnic origin, religion or belief, disability, age or
sexual orientation.

2. By way of derogation from par. 1, when the Council adopts


Community incentive measures, excluding any harmonisation of
the laws and regulations of the Member States, to support action
taken by the Member States in order to contribute to the
achievement of the objectives referred to in paragraph 1, it shall
act in accordance with the procedure referred to in Art. 294 (ex
251) (q.m.v.).
• Directive 2000/43/CE on racial discrimination

• Directive 2000/78/CE on equal treatment at


work
prevents any disrimination based on sex, racial
or ethnic origin, religion or belief, disability,
age or sexual orientation in employment and
vocational training services,
Working Time

Artt. 7 e 8 Community Charter of


fundamental social rights

DIRECTIVE 93/104/EC of 23 November


1993 concerning certain aspects of the
organization of working time

DIRECTIVE 2003/88/EC of 4 November


2003
EU Legislative Competence on social matters
(art. 137 TCE)
- improvement of the working environment
to protect workers' health and safety
- working conditions by qualified majority
- information and consultation (procedure art 294 TFEU)
- integration of excluded persons (ex 251)
- equality between men and women
*
- social security and social protection by unanimity
*
- protection of unemployed workers by unanimity, but the C.
- representation and collective defence unanimously may decide
- employment for third-country nationals to apply art. 294 TFEU

CJ ruling, UK v. EU Council, C-84/94


Definitions
working time means any period during which the worker is a)
working, b) at the employer's disposal and c) carrying out his
activity or duties, in accordance with national laws and/or practice;

rest period means any period which is not working time;

night time means any period of not less than 7 hours, as defined by
national law, and which must include in any case the period
between midnight and 5 a. m.;

night worker means:


a) on the one hand, any worker, who, during night time, works at least
3 hours of his daily working time as a normal course; and
b) on the other hand, any worker who is likely during night time to
work a certain proportion of his annual working time, as defined at
the choice of the Member State concerned: i) by national legislation,
following consultation with the two sides of industry; or ii) by
collective agreements or agreements concluded between the two
sides of industry at national or regional level;
Definitions

shift work means any method of organizing work in


shifts whereby workers succeed each other at the
same work stations according to a certain pattern,
including a rotating pattern, and which may be
continuous or discontinuous, entailing the need for
workers to work at different times over a given period
of days or weeks;

shift worker shall mean any worker whose work


schedule is part of shift work.
Maximum Daily Working Time
Daily rest
every worker is entitled to a minimum daily rest period
of 11 consecutive hours per 24-hour period
(consequentely the maximum daily working time must
be deemed 13 consecutive hours per day)

Daily breaks
where the working day is longer than six hours, every
worker is entitled to a rest break, the details of which,
including duration and the terms on which it is granted,
shall be laid down in collective agreements or
agreements between the two sides of industry or, failing
that, by national legislation
Maximum Weekly Working time
the period of weekly working time is limited by means of laws,
regulations or administrative provisions or by collective
agreements or agreements between the two sides of industry;
the average working time for each seven-day period,
including overtime, does not exceed 48 hours. The reference
period cannot exceed four months

per each seven-day period, every worker is entitled to a


minimum uninterrupted rest period of 24 hours plus the 11
hours' daily rest. If objective, technical or work organization
conditions so justify, a minimum rest period of 24 hours may
be applied. The reference period cannot exceed 14 days

CJ ruling, UK v. EU Council, C-84/94, annulled the


directive provision stating that the minimum rest period should
in principle include Sunday
Annual leave
every worker is entitled to paid annual leave of at
least four weeks in accordance with the conditions for
entitlement to, and granting of, such leave laid down by
national legislation and/or practice.
The minimum period of paid annual leave may not be
replaced by an allowance in lieu, except where the
employment relationship is terminated.

CJ ruling, C-173/99, the Queen v.Secretary of State for


Trade and Industry (BECTU), (prohibition to adopt a
condition of at least 13 weeks of uninterrupted
employment for accruing the right)
NIGHT WORK
normal hours of work for night workers have
not to exceed an average of eight hours in any
24-hours period;

night workers whose work involves special


hazards or heavy physical or mental strain do
not work more than eight hours in any period
of 24 hours during which they perform night
work.
(work involving special hazards or heavy physical or mental strain
must be defined by national legislation and/or practice or by
collective agreements or agreements concluded between the two
sides of industry)
Health assessment and
transfer of night workers to day work
a) night workers are entitled to a free health
assessment before their assignment and thereafter at
regular intervals, which must comply with medical
confidentiality and may be conducted within the national
health system

b) night workers suffering from health problems


recognized as being connected with the fact that they
perform night work are transferred whenever possible
to day work to which they are suited.
Guarantees for night-time working
Member States may make the work of certain
categories of night workers subject to certain
guarantees, under conditions laid down by national
legislation and/or practice, in the case of workers who
incur risks to their safety or health linked to night-
time working.

Notification of regular use of night workers


an employer who regularly uses night workers must
bring this information to the attention of the
competent authorities if they so request.
Safety and health protection

Member States shall take the measures


necessary to ensure that:

1. night workers and shift workers have safety


and health protection appropriate to the nature
of their work;

2. appropriate protection and prevention services


or facilities with regard to the safety and health
of night workers and shift workers are
equivalent to those applicable to other
workers and are available at all times
Who is protected by labour law ?

Who is a worker ?
regular labour market
registered employment contracts regulated by law

irregular labour market


unregistered employment contracts regulated only
by informal agreement between the parties
disguised employment contracts; e.g. false self
employmente contract
 Standard or typical worker:
full time subordinate worker – a worker subjected
to employer’s power of direction with a well
determined (rigid) working time

 No standard or atypical workers:


- Part time workers subordinate worker
- Fixed term workers
- Temporary Agency workers ?
- Semi-dependent or economically dependent ?
workers
From rejection to recognition and
(later) to promotion of atypical
works

European Union regulation


of atypical workers
Directive 91/383/EEC
supplementing the measures to encourage improvements in the
safety and health at work of workers with a fixed- duration
employment relationship or a temporary employment relationship

Legal basis: art. 137 ECT

- Whereas research has shown that in general workers with a


fixed-duration employment relationship or temporary employment
relationship are, in certain sectors, more exposed to the risk of
accidents at work and occupational diseases than other workers;

- Whereas these additional risks in certain sectors are in part


linked to certain particular modes of integrating new workers into
the undertaking; whereas these risks can be reduced through
adequate provision of information and training from the beginning
of employment;
EU Legislative Competence on social matters
(art. 137 TCE)

- improvement of the working environment


to protect workers' health and safety
- working conditions by qualified majority
- information and consultation (procedure art 294TFEU)
- integration of excluded persons ex art. 251 TCE
- equality between men and women
*
- social security and social protection by unanimity
*
- protection of unemployed workers
by unanimity, but the C.
- representation and collective defence unanimously may
decide to apply art
294 TFEU
- employment for third-country nationals
Definitions
fixed-duration contract of employment: it is concluded
directly between the employer and the worker, where the
end of the contract is established by objective conditions
such as: reaching a specific date, completing a specific
task or the occurence of a specific event;

temporary employment: it is relationship between a


temporary employment business which is the employer
and the worker, where the latter is assigned to work for
and under the control of an undertaking and/or
establishment making use of his services.
temporary worker

temporary agency/employer user


undertaking
Principle of equal protection

The diversity of fixed term contracts and temporary


contracts can not justify different treatment with
respect to working conditions inasmuch as the
protection of safety and health at work are
involved, especially as regards access to personal
protective equipment.
Obligations of Member States
Provision of information to workers
Member States must take the necessary steps to ensure that,
before a worker takes up any activity, he is informed by the
undertaking and/or establishment making use of his services of the
risks which he faces; such information:
- covers, in particular, any special occupational qualifications or
skills or special medical surveillance required, as defined in
national legislation, and
- states clearly any increased specific risks, as defined in national
legislation, that the job may entail.

Workers' training
Member States shall take the necessary measures to ensure that
each worker receives sufficient training appropriate to the
particular characteristics of the job, account being taken of his
qualifications and experience.
Obligations of Member States
Use of workers' services and medical surveillance of workers
Member States have the option of prohibiting fixed term and
temporary workers from being used for certain work as defined in
national legislation, which would be particularly dangerous to their
safety or health, and in particular for certain work which requires
special medical surveillance, as defined in national legislation.
Where Member States do not avail themselves of this option, they
must take the necessary measures to ensure that those workers who
are used for work which requires special medical surveillance, as
defined in national legislation, are provided with appropriate special
medical surveillance.

Protection and prevention services


Member States must take the necessary measures to ensure that
workers, services or persons designated to carry out activities related
to protection from and prevention of occupational risks are informed
of the assignment of fixed term and temporary workers.
Temporary employment relationships
Informations
before workers are supplied, a user undertaking and/or
establishment shall specify to the temporary employment
business the occupational qualifications required and the
specific features of the job to be filled; the temporary
employment business shall bring all these facts to the attention
of the workers concerned. This informations must appear in
the contract of assignment.

Responsibility of the user undertaking


without prejudice to the responsibility of the temporary
employment business as laid down in national legislation, the
user undertaking and/or establishment is/are responsible, for
the duration of the assignment, for the conditions connected
with safety, hygiene and health at work.
DIRECTIVE 97/81/EC
concerning the Framework Agreement on part-time
work concluded by UNICE, CEEP and the ETUC

The purposes are:

a) to provide for the removal of discrimination against


part-time workers and to improve the quality of part-
time work;

b) to facilitate the development of part-time work on a


voluntary basis and to contribute to the flexible
organization of working time in a manner which takes
into account the needs of employers and workers.
Definitions
The term 'part-time worker` refers to an employee whose
normal hours of work, calculated on a weekly basis or on
average over a period of employment of up to one year, are less
than the normal hours of work of a comparable full-time
worker.

The term 'comparable full-time worker` means a full-time


worker in the same establishment having the same type of
employment contract or relationship, who is engaged in the
same or a similar work/occupation, due regard being given to
other considerations which may include seniority and
qualification/skills.
Where there is no comparable full-time worker in the same
establishment, the comparison shall be made by reference to
the applicable collective agreement or, where there is no
applicable collective agreement, in accordance with national
law, collective agreements or practice.
Principle of non-discrimination

In respect of (legal or contractual) employment


conditions, part-time workers have not be treated
in a less favourable manner than comparable full-
time workers solely because they work part time
unless different treatment is justified on
objective grounds

principle of pro rata temporis


Obligations of Member States and Social partners

a) Member States, following consultations with the


social partners in accordance with national law or
practice, should identify and review obstacles of a
legal or administrative nature which may limit the
opportunities for part-time work and, where
appropriate, eliminate them;

b) the social partners, acting within their sphere of


competence and through the procedures set out in
collective agreements, should identify and review
obstacles which may limit opportunities for part-time
work and, where appropriate, eliminate them
Opportunities for part-time work
A worker's refusal to transfer from full-time to part-time work
or vice-versa should not in itself constitute a valid reason for
termination of employment
*
As far as possible, employers should give consideration to:
a) requests by workers to transfer from full-time to part-time
work or vice-versa that becomes available in the establishment
or to increase their working time should the opportunity arise;
c) the provision of timely information on the availability of
part-time and full-time positions in the establishment;
d) measures to facilitate access to part-time work at all levels
of the enterprise, including skilled and managerial positions,
and where appropriate, to facilitate access by part-time workers
to vocational training to enhance career opportunities and
occupational mobility;
e) the provision of appropriate information to existing bodies
representing workers about part-time working in the
enterprise
DIRECTIVE 1999/70/EC
concerning the framework agreement on fixed-term
work concluded by ETUC, UNICE and CEEP

The purpose is to:

a) improve the quality of fixed-term work by ensuring the


application of the principle of non-discrimination;

b) establish a framework to prevent abuse arising from


the use of successive fixed-term employment
contracts or relationships
Exclusions

Member States after consultation with the social


partners and/or the social partners may provide that
the directive/agreement does not apply to:

a) initial vocational training relationships and


apprenticeship schemes;

b) employment contracts and relationships which have


been concluded within the framework of a specific
public or publicly-supported training, integration
and vocational retraining programme.
Definitions
the term "fixed-term worker" means a person having an
employment contract or relationship entered into directly
between an employer and a worker where the end of the
employment contract or relationship is determined by
objective conditions such as reaching a specific date,
completing a specific task, or the occurrence of a specific
event.

the term "comparable permanent worker" means a worker


with an employment contract or relationship of indefinite
duration, in the same establishment, engaged in the same or
similar work/occupation, due regard being given to
qualifications/skills.
Where there is no comparable permanent worker in the same
establishment, the comparison shall be made by reference to
the applicable collective agreement, or where there is no
applicable collective agreement, in accordance with national
law, collective agreements or practice.
Principle of non-discrimination

In respect of employment conditions, fixed-term workers shall


not be treated in a less favourable manner than comparable
permanent workers solely because they have a fixed-term
contract or relation unless different treatment is justified on
objective grounds.

principle of pro rata temporis


Period of service qualifications relating to particular conditions
of employment shall be the same for fixed-term workers as for
permanent workers except where different length of service
qualifications are justified on objective grounds
Measures to prevent abuse

Member States must state one or more of the following


measures:
a) objective reasons justifying the renewal;
b) the maximum total duration of successive fixed-term
employment contracts;
c) the number of renewals of such contracts

Member States after consultation with the social partners must,


where appropriate, determine under what conditions fixed-term
employment contracts or relationships:
a) have to be regarded as "successive"
b) have to be deemed to be contracts or relationships of “indefinite
duration”.
Information and employment opportunities
- Employers must inform fixed-term workers about vacancies
which become available in the undertaking or establishment to ensure
that they have the same opportunity to secure permanent positions as
other workers.

- As far as possible, employers should facilitate access by fixed-


term workers to appropriate training opportunities to enhance their
skills, career development and occupational mobility.

- As far as possible, employers should give consideration to the


provision of appropriate information to existing workers'
representative bodies about fixed-term work in the undertaking

- Fixed-term workers must be taken into consideration in


calculating the threshold above which workers' representative
bodies provided for in national and Community law may be
constituted in the undertaking as required by national provisions
Rights of temporary workers

 Principle of equal treatment


The basic working and employment conditions of temporary agency workers
shall be, for the duration of their assignment at a user undertaking, at least those
that would apply if they had been recruited directly by that undertaking to occupy
the same job.

 Right of information and preference in hiring


Temporary agency workers shall be informed of any vacant posts in the user
undertaking to give them the same opportunity as other workers in that
undertaking to find permanent employment.

 Right to be hired directly by the user undertaking


Member States shall take any action required to ensure that any clauses
prohibiting or having the effect of preventing the conclusion of a contract of
employment or an employment relationship between the user undertaking and the
temporary agency worker after his assignment are null and void or may be
declared null and void.

 Right to free service


Temporary-work agencies shall not charge workers any fees in exchange for
arranging for them to be recruited by a user undertaking, or for concluding a
contract of employment or an employment relationship with a user undertaking
after carrying out an assignment in that undertaking
General provisions of the directive on
no standard workers

“more favour” clause


Member States and/or the social partners can
maintain or introduce more favourable provisions
for workers than set out in this agreement.
*
“no regression” clause
Implementation of the directive does not constitute
valid ground for reducing the general level of
protection afforded to workers in the field of the
agreement (CGCE case Mangold, C-144/04)
DIRECTIVE 75/129/EEC
(as amended by directives 92/56 and 98/59)

Collective Redundancies
Legal basis: art. 115 TFEU (ex 94 TCE)

Whereas, despite increasing convergence, differences


remained between the provisions in force in the Member States
of the Community concerning the practical arrangements and
procedures for collective redundancies and the measures
designed to alleviate the consequences of redundancy for
workers;

these differences can have a direct effect on


the functioning of the common market
Definition of collective redundancies
"collective redundancies" means dismissals effected by an
employer for one or more reasons not related to the individual
workers concerned where, according to the choice of the Member
States, the number of redundancies is:

- either, over a period of 30 days:


1) at least 10 in establishments normally employing more than 20
and less than 100 workers;
2) at least 10 % of the number of workers in establishments
normally employing at least 100 but less than 300 workers;
3) at least 30 in establishments normally employing 300 workers or
more;

- or, over a period of 90 days:


at least 20, whatever the number of workers normally
employed in the establishments in question;
Exclusions
a) collective redundancies affected under contracts of
employment concluded for limited periods of time or
for specific tasks except where such redundancies take
place prior to the date of expiry or the completion of
such contracts;

b) workers employed by public administrative bodies or


by establishments governed by public law;

c) the crews of sea-going vessels;

d) workers affected by the termination of an


establishment's activities where that is the result of a
judicial decision.
1 step - Consultation procedure
Where an employer is contemplating collective
redundancies, he shall begin consultations with the
workers' representatives with a view to reaching an
agreement.

"workers" representatives' means the workers'


representatives provided for by the laws or practices of
the Member States (CJ C-382/92, Commission v. UK)

These consultations shall, at least, cover ways and means


of avoiding collective redundancies or reducing the
number of workers affected, and mitigating the
consequences.
Preventive information

To enable the workers' representatives to make


constructive proposals the employer must supply them
with all relevant information in writing:
- reasons for the redundancies,
- number of workers to be made redundant
- number of workers normally employed
- period over which the redundancies are to be effected.

The employer must forward to the competent public


authority a copy of all the written communications.
2 step - Administrative Procedure
for collective redundancies

a) Notification to the competent public authority in


writing of any projected collective redundancies.

b) This notification must contain all relevant information


concerning the projected collective redundancies and the
consultations with workers' representatives.

c) Employers must forward to the workers'


representatives a copy of the notification to the public
authority.

d) The workers' representatives may send any comments


they may have to the competent public authority.
Procedure for collective redundancies
Projected collective redundancies can take effect not earlier than
30 days after the notification to public authority without prejudice
to any provisions governing individual rights with regard to notice
of dismissal. Member States may grant the competent public
authority the power to reduce this period.

This period has to be used by the competent public authority to


seek solutions in the problems raised by the projected collective
redundancies.

Where the initial period provided by national law is shorter than 60


days, Member States may grant the competent public authority the
power to extend the initial period to 60 days following
notification where the problems raised by the projected collective
redundancies are not likely to be solved within the initial period.
Member States may grant the competent public authority wider
powers of extension.
.
Consequence of the infringement of the procedure

the dismissals are null if they are effected by an employer


without respecting the procedure or not respecting it
properly

“more favour” clause

The Directive does not affect the right of Member States


to apply or to introduce laws, regulations or administrative
provisions which are more favourable to workers
DIRECTIVE 80/987/EEC
(amended by directive 2002/74 EC)

Protection of employees
in the event of the insolvency of their employer

Legal basis: art. 115 TFEU (ex 94 TCE):


Whereas it is necessary to provide for the protection of employees in
the event of the insolvency of their employer, in particular in order to
guarantee payment of their outstanding claims;
whereas differences still remain between the Member States as
regards the extent of the protection of employees in this respect;

efforts should be directed towards reducing these differences,


which can have a direct effect on the functioning of the common
market;
State of insolvency
an employer is deemed to be in a state of insolvency:
a) where a request has been made for the opening of
proceedings involving the employer's assets, as provided
for under the laws of the Member State concerned, to
satisfy collectively the claims of creditors and which
make it possible to take into consideration the claims of
employees
and
b) where the authority which is competent pursuant to the
national laws has:
- either decided to open the proceedings,
- or established that the employer's undertaking or
business has been definitively closed down and that the
available assets are insufficient to warrant the opening of
the proceedings
The Directive is without prejudice to national
law as regards the definition of the terms:

"employee"(CJ, C 334/92, Miret v. Fondo de garantia salarial)


"employer"
"pay"
"right conferring immediate entitlement"
"right conferring prospective entitlement”
Guarantee institutions
Member States must take the measures necessary to ensure that
guarantee institutions guarantee payment of employees'
outstanding claims resulting from contracts of employment or
employment relationships and relating to pay for the period
prior to a given date.

At the choice of the Member States, this date is:


- either that of the onset of the employer's insolvency;

- or that of the notice of dismissal issued to the employee


concerned on account of the employer's insolvency;

- or that of the onset of the employer's insolvency or that on which


the contract of employment or the employment relationship with
the employee concerned was discontinued on account of the
employer's insolvency.
Workers’ Rights
a) Choice of the date of onset of the employer's insolvency:
payment of outstanding claims relating to pay for the last three
months of the contract of employment occurring within a period of
six months preceding that date;

b) Choice of the date of the notice of dismissal:


payment of outstanding claims relating to pay for the last three
months of the contract of employment preceding that date;

c) Choice of the date artenatively of onset of the employer's


insolvency or of the notice of dismissal:
payment of outstanding claims relating to pay for the last 18 months
of the contract of employment preceding those dates.
In this last case, Member States may limit the liability to make
payment to pay corresponding to a period of eight weeks or to
several shorter periods totalling eight weeks.
Organization, financing and operation
of the National Guarantee Institution

a) the assets of the institutions must be independent of the


employers' operating capital and be inaccessible to
proceedings for insolvency;

b) employers must contribute to financing, unless it is


fully covered by the public authorities;

c) the institutions' liabilities have not to depend on


whether or not obligations to contribute to financing
have been fulfilled
Provisions concerning social security
Member States may stipulate that the national guarantees do not
apply to contributions due under national statutory social
security schemes or under supplementary company or inter-
company pension schemes outside the national statutory social
security schemes.
*
Member States must ensure:
a) that non-payment of compulsory contributions due from the
employer, before the onset of his insolvency, to their insurance
institutions under national statutory social security schemes does
not adversely affect employees' benefit entitlement in respect of
these insurance institutions inasmuch as the employees'
contributions were deducted at source from the remuneration paid.
b) to protect the interests of employees and of persons having
already left the employer's undertaking at the date of the onset of the
employer's insolvency in respect of rights conferring on them
immediate or prospective entitlement to old-age benefits,
including survivors' benefits, under supplementary company or
inter-company pension schemes
• CJ, C 334/92, Miret v. Fondo de garantia
salarial
• Corte giustizia UE, sez. I, 11/11/2015, n. 422
• C 561/07 Commission v. Italy
• C 516/10
• C 370/12, Pringle
• Case C-617/10, Åklagaren
• Case C 115/14, Regio Post
DIRECTIVE 77/187/EEC
(amended by directive 92/50)

Transfer of undertakings
Legal basis: art. 115 TFEU (ex 94 TCE)

• Whereas economic trends are bringing in their wake, at both


national and Community level, changes in the structure of
undertakings, through transfers of undertakings, businesses or parts
of businesses to other employers as a result of legal transfers or
mergers;
• Whereas it is necessary to provide for the protection of employees in
the event of a change of employer, in particular, to ensure that their
rights are safeguarded;
• Whereas differences still remain in the Member States as regards the
extent of the protection of employees in this respect and these
differences should be reduced;

these differences can have a direct effect on the functioning of


the common market
Definitions
a) "transferor" means any natural or legal person who, by
reason of a transfer, ceases to be the employer in respect of
the undertaking, business or part of the business;

b) "transferee" means any natural or legal person who, by


reason of a transfer, becomes the employer in respect of the
undertaking, business or part of the business;

c) "representatives of the employees" means the


representatives of the employees provided for by the laws or
practice of the Member States, with the exception of
members of administrative, governing or supervisory bodies
of companies who represent employees on such bodies in
certain Member States.
Scope and Exclusions
• The Directive applies to the transfer of an undertaking,
business or part of a business to another employer as a
result of a legal transfer or merger, keeping the
previous organizative identity (economic entity).

• The Directive applies where and in so far as the


undertaking, business or part of the business to be
transferred is situated within the territorial scope of the
Treaty.

• The Directive does not apply to sea-going vessels.


Safeguarding of employees' rights
The transferor's rights and obligations arising from a
contract of employment existing on the date of a transfer,
by reason of such transfer, are automatically transferred to
the transferee.

Member States may provide that, after the date of transfer


and in addition to the transferee, the transferor shall
continue to be liable in respect of obligations which arose
from a contract of employment or an employment
relationship.

Following the transfer, the transferee shall continue to


observe the terms and conditions agreed in any collective
agreement on the same terms applicable to the transferor
under that agreement, until the date of termination or
expiry of the collective agreement or the entry into force
or application of another collective agreement.
Safeguarding of employees' rights

Member States may limit the period for observing


such terms and conditions, with the provision that
it can not be less than one year.

Member States shall adopt the measures necessary


to protect the interests of employees and of persons
no longer employed in the transferor's business at
the time of the transfer in respect of rights
conferring on them immediate or prospective
entitlement to old-age benefits, including
survivors' benefits, under supplementary schemes
Prohibition of dismissal

The transfer of an undertaking, business or part of a


business shall not in itself constitute grounds for
dismissal by the transferor or the transferee. This
provision shall not stand in the way of dismissals that may
take place for economic, technical or organizational
reasons entailing changes in the work-force.

If the contract of employment is terminated because the


transfer involves a substantial change in working
conditions to the detriment of the employee, the employer
is regarded as having been responsible for termination
of the contract of employment
Procedure of transfer

The transferor and the transferee are required to inform


the representatives of their respective employees of the
following:
- the reasons for the transfer,
- the legal, economic and social implications of the
transfer for the employees,
- measures envisaged in relation to the employees.

The transferor and the transferee must give such


information to the representatives of his employees in
good time before the transfer is carried out.
Information and consultation
.
The information and consultations must cover at
least the measures envisaged in relation to the
employees.

Member States may provide that where there are no


representatives of the employees in an undertaking
or business, the employees concerned must be
informed in advance when a transfer is about to take
place.
Consequence of the infringement of the procedure

the transfers are null if they are effected by an employer


without respecting the procedure or not respecting it
properly

“more favour” clause

The Directive does not affect the right of Member States


to apply or to introduce laws, regulations or administrative
provisions which are more favourable to workers
European Works Councils

Directive 1994/45/CE
Directive 2009/38/CE
adopted on the basis of art. 2 of the Protocol
on Social Policy annexed to the Treaty
establishing the European Community
The purpose:
to improve the right to information and to
consultation of employees in Community-scale
undertakings and Community-scale groups of
undertakings.

Alternative choice between:


- European Works Council
or
- a procedure for informing and consulting
Definitions
a) 'Community-scale undertaking' means any undertaking with at
least 1000 employees within the Member States and at least 150
employees in each of at least two Member States;
b) 'Community-scale group of undertakings' means a group of
undertakings with the following characteristics:
- at least 1000 employees within the Member States,
- at least two group undertakings in different Member States, and
- at least one group undertaking with at least 150 employees in one
Member State and at least one other group undertaking with at
least 150 employees in another Member State;
c) 'employees' representatives' means the employees'
representatives provided for by national law and/or practice;

* the prescribed thresholds for the size of the workforce shall be


based on the average number of employees, including part-time
employees, employed during the previous two years calculated
according to national legislation and/or practice.
Definition of 'controlling undertaking'
• an undertaking which can exercise a dominant influence over
another undertaking ('the controlled undertaking') by virtue, for
example, of ownership, financial participation or the rules
which govern it.

• The ability to exercise a dominant influence is presumed, without


prejudice to proof to the contrary, when, in relation to another
undertaking directly or indirectly:
a) holds a majority of that undertaking's subscribed capital; or
b) controls a majority of the votes attached to that undertaking's
issued share capital; or
c) can appoint more than half of the members of that undertaking's
administrative, management or supervisory body.

The law applicable in order to determine whether an undertaking is


a 'controlling undertaking' shall be the law of the Member State
which governs that undertaking.
Special negotiating body (SNB)
a) the central management is bound to initiate negotiations for the
establishment of a European Works Council or an information
and consultation procedure on its own initiative or at the written
request of at least 100 employees or their representatives in at
least two undertakings or establishments in at least two
different Member States.
b) The Member States shall determine the method to be used
for the election or appointment of the members of the special
negotiating body (SNB) who are to be elected or appointed in
their territories.
c) The SNB has a minimum of 3 and a maximum of 17 members.
d) In these elections or appointments, it must be ensured:
- that each Member State in which the undertaking has one or
more establishbments is represented by one member,
- that there are supplementary members in proportion to the
number of employees working in the establishments.
e) Any expenses relating to the negotiations must be borne by the
central management.
The possible choices of the SNB

a) The SNB has the task of determining, with the central


management, by written agreement:
a.1) the scope, composition, functions, and term of office of the
European Works Council or
a.2) the arrangements for implementing a procedure for the
information and consultation of employees.
the SNB acts by a majority of its members.
*
b) The special negotiating body may decide, by at least two-thirds
of the votes, not to open negotiations or to terminate the
negotiations already opened. Such a decision shall stop the
procedure to conclude the agreement. A new request to convene
the SNB may be made at the earliest two years after the
abovementioned decision unless the parties concerned lay down a
shorter period.
Agreement of establishing
an European Work Council (EWC)

a) the coverage of the agreement;


b) the composition of the EWC, the number of members,
the allocation of seats and the term of office;
c) the functions and the procedure for information and
consultation of the EWC;
d) the venue, frequency and duration of meetings of the
EWC;
e) the financial and material resources to be allocated to the
EWC;
f) the duration of the agreement and the procedure for its
renegotiation.
Agreement of establishing an information
and consultation procedure

• The central management and the SNB may decide, in


writing, to establish one or more information and
consultation procedures instead of a EWC.
• The agreement must stipulate by what method the
employees' representatives must have the right to meet to
discuss the information conveyed to them.
• This information must be related in particular to
transnational questions which significantly affect
workers' interests.
Forced establishment of information and
consultation procedure

- where the central management and the special


negotiating body so decide, or
- where the central management refuses to commence
negotiations within six months of the request or
- where, after three years from the date of this request,
they are unable to conclude an agreement.
Subsidiary Requirements
a) The competence of the EWC is limited to information and
consultation on the matters which concern the Community-scale
undertaking as a whole or at least two of its establishments situated in
different Member States.
b) The EWC is composed of employees of the Community-scale
undertaking elected or appointed from their number by the employees'
representatives or, in the absence thereof, by the entire body of
employees. The election or appointment of members of the European
Works Council must be carried out in accordance with national
legislation and/or practice.
c) The EWC have a minimum of 3 members and a maximum of 30.
Where its size so warrants, it shall elect a select committee from
among its members, comprising at most three members. It shall
adopt its own rules of procedure.
d) In the election or appointment of members of the EWC, it must be
ensured:
• that each Member State in which the Community-scale undertaking
has one or more establishments is represented by one member,
• that there are supplementary members in proportion to the number of
employees working in the establishments
Subsidiary Requirements
e) 4 years after the EWC is established it shall examine whether to open
negotiations for the conclusion of the agreement or to continue to
apply the subsidiary requirements
f) The EWC shall have the right to meet with the central management
once a year, to be informed and consulted, on the basis of a report
drawn up by the central management, on the progress of the business
of the Community-scale undertaking and its prospects. The meeting
shall relate in particular to:
- structure, economic and financial situation;
- probable development of the business and of production and sales;
- situation and probable trend of employment, investments, and
substantial changes concerning organization, introduction of new
working methods or production processes,
- transfers of production, mergers, cut-backs or closures of
undertakings, establishments or important parts thereof, and collective
redundancies.
g) Where there are exceptional circumstances affecting the employees'
interests (relocations, closure of establishments or undertakings or
collective redundancies), the EWC shall have the right to be
informed.
h) The operating expenses shall be borne by the central management.
Directive 2002/14/CE
purpose: to establish a general framework for informing
and consulting employees in the European Community

field of applying: according to the choice made by


Member States, to
a) undertakings employing at least 50 employees in any
one Member State, or
b) establishments employing at least 20 employees in any
one Member State.

Right of employees’ representatives or, in absence, of


employees to be informed by management on the progress
of the business of the undertaking and its prospects
Information and consultation have to cover
recent and probable development of the
undertaking's or the establishment's activities and
economic situation;
situation, structure and probable development of
employment within the undertaking or
establishment and on any anticipatory measures
envisaged, in particular where there is a threat to
employment;
decisions likely to lead to substantial changes in
work organisation or in contractual relations,
Information and Consultation conditions
 Information must be given at such time, in such fashion and with
such content as are appropriate to enable employees' representatives
to conduct an adequate study and, where necessary, prepare for
consultation.
 Consultation must take place:
a) while ensuring that the timing, method and content thereof are appropriate;
b) at the relevant level of management and representation, depending on the
subject under discussion;
c) on the basis of information supplied by the employer and of the opinion
which the employees' representatives are entitled to formulate;
d) in such a way as to enable employees' representatives to meet the
employer and obtain a response, and the reasons for that response, to any
opinion they might formulate;
e) with a view to reaching an agreement on decisions within the scope of the
employer's powers
Confidential information
 employees‘ representatives, and any experts who assist them, are
not authorised to reveal to employees or to third parties, any
information which, in the legitimate interest of the undertaking
or establishment, has expressly been provided to them in
confidence.
 This obligation continue to apply, wherever the said
representatives or experts are, even after expiry of their terms of
office.
 Member States may provide, in specific cases and within the
conditions and limits laid down by national legislation, that the
employer is not obliged to communicate information or
undertake consultation when the nature of that information or
consultation is such that, according to objective criteria, it would
seriously harm the functioning of the undertaking or
establishment or would be prejudicial to it.
Protection of employees' representatives

Member States shall ensure that employees'


representatives, when carrying out their
functions, enjoy adequate protection and
guarantees to enable them to perform properly
the duties which have been assigned to them.
Protection of rights

 Member States provide for appropriate measures in the


event of non-compliance by the employer or the
employees' representatives. In particular, they have to
ensure that adequate administrative or judicial procedures
are available to enable the obligations deriving from the
Directive to be enforced.
 Member States provide for adequate sanctions to be
applicable in the event of infringement of this Directive by
the employer or the employees' representatives.
 The sanctions must be effective, proportionate and
dissuasive.
Charter of Fundamental Rights of the
European Union

Massimo Pallini
University of Milan
In 2008 the Treaty of Lisbon has incorporated the
Charter of Nice in the Treaty on functioning of EU

NEW Article 6 TEU


The Union recognises the rights, freedoms and principles set out in
the Charter of Fundamental Rights of the European Union of 7
December 2000, as adapted at Strasbourg, on 12 December 2007,
which shall have the same legal value as the Treaties.

but

The provisions of the Charter shall not extend in any way the
competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be
interpreted in accordance with the general provisions in Title VII of
the Charter governing its interpretation and application and with
due regard to the explanations referred to in the Charter
Treaty of Lisbon has only planned, but not
statued the accession to ECHR

NEW Art. 6 TEU


2. The Union shall accede to the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Such
accession shall not affect the Union's competences as defined in
the Treaties.
3. Fundamental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms
and as they result from the constitutional traditions common to
the Member States, shall constitute general principles of the
Union's law.
Article 5
Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. Trafficking in human beings is prohibited.


Article 6
Right to liberty and security

Everyone has the right to liberty and security of person.

Article 10
Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion. This right
includes freedom to change religion or belief and freedom, either alone or in
community with others and in public or in private, to manifest religion or belief, in
worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national


laws governing the exercise of this right.
Article 11
Freedom of expression and information

1. Everyone has the right to freedom of expression. This right


shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.


Article 12
Freedom of assembly and of association

1. Everyone has the right to freedom of peaceful assembly and to freedom of


association at all levels, in particular in political, trade union and civic
matters, which implies the right of everyone to form and to join trade unions
for the protection of his or her interests.

2. Political parties at Union level contribute to expressing the political will


of the citizens of the Union.
Article 14
Right to education
1. Everyone has the right to education and to have access to vocational
and continuing training.
2. This right includes the possibility to receive free compulsory
education.
3. The freedom to found educational establishments with due respect for
democratic principles and the right of parents to ensure the education
and teaching of their children in conformity with their religious,
philosophical and pedagogical convictions shall be respected, in
accordance with the national laws governing the exercise of such
freedom and right.
Article 15
Freedom to choose an occupation and right to
engage in work
1. Everyone has the right to engage in work and to pursue a freely chosen or
accepted occupation.

2. Every citizen of the Union has the freedom to seek employment, to work, to
exercise the right of establishment and to provide services in any Member State.

3. Nationals of third countries who are authorised to work in the territories of the
Member States are entitled to working conditions equivalent to those of citizens of
the Union.
Article 16
Freedom to conduct a business

The freedom to conduct a business in accordance with Union


law and national laws and practices is recognised.
Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic
or social origin, genetic features, language, religion or belief, political or
any other opinion, membership of a national minority, property, birth,
disability, age or sexual orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to


any of their specific provisions, any discrimination on grounds of
nationality shall be prohibited.
Article 23
Equality between women and men

Equality between women and men must be ensured in all areas,


including employment, work and pay.

The principle of equality shall not prevent the maintenance or


adoption of measures providing for specific advantages in favour of
the under-represented sex.
Article 26
Integration of persons with disabilities

The Union recognises and respects the right of persons


with disabilities to benefit from measures designed to
ensure their independence, social and occupational
integration and participation in the life of the community.
Article 27
Workers' right to information and consultation
within the undertaking

Workers or their representatives must, at the appropriate


levels, be guaranteed information and consultation in
good time in the cases and under the conditions provided
for by Union law and national laws and practices.
Article 28
Right of collective bargaining and action

Workers and employers, or their respective organisations, have, in


accordance with Union law and national laws and practices, the right to
negotiate and conclude collective agreements at the appropriate levels and,
in cases of conflicts of interest, to take collective action to defend their
interests, including strike action.
Article 29
Right of access to placement services

Everyone has the right of access to a free placement service.

Article 30
Protection in the event of unjustified dismissal

Every worker has the right to protection against unjustified dismissal, in


accordance with Union law and national laws and practices.
Article 31
Fair and just working conditions

1. Every worker has the right to working conditions which


respect his or her health, safety and dignity.

2. Every worker has the right to limitation of maximum working


hours, to daily and weekly rest periods and to an annual period
of paid leave
Article 32
Prohibition of child labour and protection of
young people at work

The employment of children is prohibited. The minimum age of admission to


employment may not be lower than the minimum school-leaving age, without
prejudice to such rules as may be more favourable to young people and
except for limited derogations.

Young people admitted to work must have working conditions appropriate to


their age and be protected against economic exploitation and any work likely
to harm their safety, health or physical, mental, moral or social development
or to interfere with their education.
Article 33
Family and professional life

1. The family shall enjoy legal, economic and social protection.

2. To reconcile family and professional life, everyone shall have the right to
protection from dismissal for a reason connected with maternity and the
right to paid maternity leave and to parental leave following the birth or
adoption of a child.
Article 34
Social security and social assistance
1. The Union recognises and respects the entitlement to social security benefits and
social services providing protection in cases such as maternity, illness, industrial
accidents, dependency or old age, and in the case of loss of employment, in
accordance with the rules laid down by Union law and national laws and
practices.

2. Everyone residing and moving legally within the European Union is entitled to
social security benefits and social advantages in accordance with Union law and
national laws and practices.

3. In order to combat social exclusion and poverty, the Union recognises and
respects the right to social and housing assistance so as to ensure a decent
existence for all those who lack sufficient resources, in accordance with the rules
laid down by Union law and national laws and practices.
Article 45
Freedom of movement and of residence

1. Every citizen of the Union has the right to move and reside freely within
the territory of the Member States.

2. Freedom of movement and residence may be granted, in accordance


with the Treaties, to nationals of third countries legally resident in the
territory of a Member State.
Article 51
Field of application

1. The provisions of this Charter are addressed to the institutions, bodies, offices
and agencies of the Union with due regard for the principle of subsidiarity and to
the Member States only when they are implementing Union law. They shall
therefore respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers and respecting the limits of
the powers of the Union as conferred on it in the Treaties.

2. The Charter does not extend the field of application of Union law beyond the
powers of the Union or establish any new power or task for the Union, or modify
powers and tasks as defined in the Treaties.
Article 52
Scope and interpretation of rights and
principles
1. Any limitation on the exercise of the rights and freedoms recognised by
this Charter must be provided for by law and respect the essence of those
rights and freedoms. Subject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet
objectives of general interest recognised by the Union or the need to
protect the rights and freedoms of others.

2. Rights recognised by this Charter for which provision is made in the


Treaties shall be exercised under the conditions and within the limits
defined by those Treaties
Article 52
Scope and interpretation of rights and
principles
3. In so far as this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human Rights and
Fundamental Freedoms, the meaning and scope of those rights shall be
the same as those laid down by the said Convention. This provision shall
not prevent Union law providing more extensive protection.

4. In so far as this Charter recognises fundamental rights as they result


from the constitutional traditions common to the Member States, those
rights shall be interpreted in harmony with those traditions.
Article 52
Scope and interpretation of rights and
principles
5. The provisions of this Charter which contain principles may be implemented by
legislative and executive acts taken by institutions, bodies, offices and agencies of
the Union, and by acts of Member States when they are implementing Union law,
in the exercise of their respective powers. They shall be judicially cognisable only
in the interpretation of such acts and in the ruling on their legality.

6. Full account shall be taken of national laws and practices as specified in this
Charter.

7. The explanations drawn up as a way of providing guidance in the


interpretation of this Charter shall be given due regard by the courts of the
Union and of the Member States.
Article 53
Level of protection

Nothing in this Charter shall be interpreted as restricting or adversely


affecting human rights and fundamental freedoms as recognised, in
their respective fields of application, by Union law and international
law and by international agreements to which the Union or all the
Member States are party, including the European Convention for the
Protection of Human Rights and Fundamental Freedoms, and by the
Member States' constitutions.
Article 54
Prohibition of abuse of rights

Nothing in this Charter shall be interpreted as implying any right


to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms recognised in this
Charter or at their limitation to a greater extent than is provided
for herein
Convention for the Protection
of Human Rights
and Fundamental Freedoms

Massimo Pallini
University of Milan
Convention for the Protection of Human
Rights and Fundamental Freedoms
signed at Rome, on 1950 november 4th

It’s not an European legal source,

but an international treaty bingind only for the


contractual Parties, which are the States joined the Council
of Europe (to be distinguished from the UE Council).
European Court of Human Rights
ensures the observance of the engagements undertaken by the High Contracting
Parties

The Court shall consist of a number of judges equal to that of the High
Contracting Parties.

The judges aree elected by the Parliamentary Assembly with respect to each High
Contracting Party by a majority of votes cast from a list of three candidates
nominated by the High Contracting Party.

The judges are elected for a period of 9 years. They may not be re-elected.

No judge may be dismissed from office unless the other judges decide by a
majority of two-thirds that that judge has ceased to fulfil the required conditions.
European Court of Human Rights
The Court may receive applications from any High Contracting Party and from
any person, non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.

The Court may only deal with the matter after all domestic remedies have
been exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken.

Just satisfaction: If the Court finds that there has been a violation of the
Convention or the protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.
Binding force and execution of judgments of
European Court of
:
Human Rights
 The High Contracting Parties undertake to abide by the final judgment of the Court
in any case to which they are parties.

 The final judgment of the Court shall be transmitted to the Committee of


Ministers, which shall supervise its execution.

 If the Committee of Ministers considers that the supervision of the execution of a


final judgment is hindered by a problem of interpretation of the judgment, it may refer
the matter to the Court for a ruling on the question of interpretation. A referral decision
shall require a majority vote of two thirds of the representatives entitled to sit on the
Committee.

 If the Committee of Ministers considers that a High Contracting Party refuses to


abide by a final judgment in a case to which it is a party, it may, after serving formal
notice on that Party and by decision adopted by a majority vote of two thirds of the
representatives entitled to sit on the Committee, refer to the Court the question
whether that Party has failed to fulfil this obligation.

 If the Court finds a violation of an High Contracting Party, it shall refer the case to
the Committee of Ministers for consideration of the measures to be taken. If the Court
finds no violation in fulfilling its judgements, it shall refer the case to the Committee
of Ministers, which shall close its examination of the case.
Article 4
Prohibition of slavery and forced labour
1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this article the term "forced or compulsory labour" shall not
include:
a) any work required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of this Convention or during
conditional release from such detention;
b) any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
c) any service exacted in case of an emergency or calamity threatening the
life or well-being of the community;
d) any work or service which forms part of normal civic obligations.
Article 9
Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such


limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of others.
Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting, television or cinema
enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary
Article 11
Freedom of assembly and association
1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions
for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such
as are prescribed by law and are necessary in a democratic society in the
interests of national security or public safety, for the prevention of disorder or
crime, for the protection of health or morals or for the protection of the rights
and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of the armed forces, of
the police or of the administration of the State.
Article 14
Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this


Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.
Health and safety at work in EU
DIRECTIVE 89/391/EEC
on the introduction of measures to
encourage improvements in the safety and
health of workers at work
(amended by Regulation (EC) 882/2003,
Directive 2007/30/EC, Regulation (EC)
1137/2008)
EMPLOYERS' OBLIGATIONS
 The employer shall have a duty to ensure the safety and health of
workers in every aspect related to the work.

 Where an employer enlists competent external services or


persons, this shall not discharge him from his responsibilities

 the employer must take the measures necessary for the safety and
health protection of workers, including prevention of occupational
risks and provision of information and training, as well as provision
of the necessary organization and means.

 the employer shall be alert to the need to adjust these measures to


take account of changing circumstances and aim to improve existing
situations.

 Member States may exclude or limit employers' responsibility where


occurrences are due to unusual and unforeseeable circumstances,
beyond the employers' control, or to exceptional events, the
consequences of which could not have been avoided despite the
exercise of all due care.
EMPLOYERS’ OBLIGATIONS
The employer shall implement the measures of protection on the
basis of the following general principles of prevention:
a) avoiding risks;
b) evaluating the risks which cannot be avoided:
c) combating the risks at source;
d) adapting the work to the individual, especially as regards the design
of work places, the choice of work equipment and the choice of
working and production methods, with a view, in particular, to
alleviating monotonous work and work at a predetermined workrate
and to reducing their effect on health.
e) adapting to technical progress;
f) replacing the dangerous by the non-dangerous or the less
dangerous;
g) developing a coherent overall prevention policy which covers
technology, organization of work, working conditions, social
relationships and the influence of factors related to the working
environment;
h) giving collective protective measures priority over individual
protective measures;
i) giving appropriate instructions to the workers.
Protective and preventive services
the employer must designate one or more workers to carry out
activities related to the protection and prevention of occupational
risks for the undertaking and/ or establishment.
If competent personnel in the undertaking and/ or establishment
lacks, the employer must enlist competent external services or
persons.
In all cases:
— the workers designated must have the necessary capabilities and the
necessary means,
— the external services or persons consulted must have the necessary
aptitudes and the necessary personal and professional means
— the workers designated and the external services or persons
consulted must be sufficient in number to deal with the organization
of protective and preventive measures, taking into account the size of
the undertaking and/ or establishment and/ or the hazards to which
the workers are exposed and their distribution throughout the entire
undertaking and/ or establishment.
WORKERS' OBLIGATIONS
Each worker is responsible to take care as far as possible of his own safety
and health and that of other persons affected by his at work in accordance
with his training and the instructions given by his employer.
Workers must in particular:
a) make correct use of machinery, apparatus, tools, dangerous substances,
transport equipment and other means of production;
b) make correct use of the personal protective equipment supplied to them and,
after use, return it to its proper place;
c) refrain from disconnecting, changing or removing arbitrarily safety devices
fitted, e.g. to machinery, apparatus, tools, plant and buildings, and use such
safety devices correctly;
d) immediately inform the employer and/ or the workers with specific
responsibility for the safety and health of workers of any work situation they
have reasonable grounds for considering represents a serious and
immediate danger to safety and health and of any shortcomings in the
protection arrangements;
e) cooperate with the employer and/ or workers with specific responsibility for
the safety and health of workers, for as long as may be necessary to enable
any tasks or requirements imposed by the competent authority to protect the
safety and health of workers at work to be carried out;
f) cooperate with the employer and/ or workers with specific responsibility for
the safety and health of workers, for as long as may be necessary to enable
the employer to ensure that the working environment and working conditions
are safe and pose no risk to safety and health within their field of activity.
Worker information
The employer must take appropriate measures so that workers
and/or their representatives in the undertaking and/ or
establishment receive all the necessary information concerning:
a) the safety and health risks and protective and preventive
measures and activities in respect of both the undertaking and/ or
establishment in general and each type of workstation and/ or job;
b) the measures taken pursuant to protect workers’ health.

The employer must take appropriate measures so that workers


with specific functions in protecting the safety and health of
workers, or workers' representatives with specific responsibility for
the safety and of workers shall have access, to carry out their
functions and in accordance with national laws and/ or practices,
to:
a) the risk assessment and protective measures;
b) the list and reports on protective measures and risks;
c) the information yielded by protective and preventive measures,
inspection agencies and bodies responsible for safety and health
Consultation and participation of workers
 Employers must consult workers and/ or their representatives and
allow them to take part in discussions on all questions relating to
safety and health at work.
This presupposes:
— the consultation of workers,
— the right of workers and/ or their representatives to make proposals,
— balanced participation in accordance with national laws and/ or
practices.

 Workers or workers' representatives with specific responsibility for


the safety and health of workers must be consulted in advance and
in good time by the employer with regard to:
a) any measure which may substantially affect safety and health;
b) the designation of workers to the preventive and protective
services;
c) the information about risks at work and adopted protective
meausures;
d) the enlistment of the competent services or persons outside the
undertaking and/ or establishment;
e) the planning and organization of the workers training.
Consultation and participation of workers
 Workers' representatives have the right to ask the employer to take
appropriate measures and to submit proposals to him to that end to
mitigate hazards for workers and/ or to remove sources of danger.

 Employers must allow workers' representatives with specific


responsibility for the safety and health of workers adequate time off
work, without loss of pay, and provide them with the necessary
means to enable such representatives to exercise their rights and
functions deriving from this Directive.

 Workers and/ or their representatives are entitled to appeal to the


authority responsible for safety and health protection at work if they
consider that the measures taken and the means employed by the
employer are inadequate for the purposes of ensuring safety and
health at work

 Workers' representatives must be given the opportunity to submit


their observations during inspection visits by the competent authority
Training of workers
 The employer must ensure that each worker receives adequate
safety and health training, in particular in the form of information and
instructions specific to his workstation or job:
— on recruitment,
— in the event of a transfer or a change of job,
— in the event of the introduction of new work equipment or a
change in equipment,
— in the event of the introduction of any new technology.
 The training has to be:
— adapted to take account of new or changed risks, and
— repeated periodically if necessary.
 The employer must ensure that workers from outside undertakings
and/ or establishments engaged in work in his undertaking and/ or
establishment have in fact received appropriate instructions
regarding health and safety risks during their activities in his
undertaking and/ or establishment.
 Workers' representatives with a specific role in protecting the safety
and health of workers shall be entitled to appropriate training.
 The training referred may not be at the workers' expense and must
take place during working hours.
Health surveillance
 To ensure that workers receive health surveillance appropriate to
the health and safety risks they incur at work, measures must be
introduced in accordance with national law and/ or practices.

 These measures have to be such that each worker, if he so


wishes, may receive health surveillance at regular intervals.

 Health surveillance may be provided as part of a national health


system.

Risk groups
 Particularly sensitive risk groups must be protected against the
dangers which specifically affect them.
Ruling to read by next Wednesday

EHRC - Koufaki e Adedy c. Greece


7.5.2013
EHCR - Conceicaoã Mateus c. Portugal
8.10.2013
*
CJEU 27 november 2012, C 370/2012,
Pringle
CJEU 26 february 2013, C 617/10
Åklagaren
Global trade and social dumping
The international legal sources and their problems:

ILO Conventions – scarce efficacy of enforcement

EU Law – strong efficacy of enforcement but applied only to EU


MSs and intenal competition on basis of principle of the state of
origin in cae of posted workers

WTO Agreements – their competence is generally deemed not


including the respect of labour standard by States joining them.
The new doctrine «like products» try to interpret labour standars
as binding conditions of production to protect human life likely it
has been tried for rules to proect enviroment and animal life (see
Shrimps and Tuna/Dolphin cases)
ILO normative sources
Conventions

Recommendations

Declarations, resolutions and conclusions


ILO Conventions
 Conventions are species of international treaties, normative,
mandatory and programmatic documents.
 They have to be approved by qualified majority (two-thirds
majority).
 Nevertheless, only after internal ratification they become
formal sources of domestic Law, heteronomous normative
sources.
 if a Convention does not reach the two-thirds majority, it is
still possible to agree to such a Convention among the
Members which supported it
ILO Conventions
 Fundamental Conventions are those defined as such by the 1998 ‘Declaration of
Fundamental Principles and Rights at work’, which aimed to constitute an
universal set of workers´ rights, ensuring that social advances follows economic
development: a) Freedom of Association and Protection of the Right to Organize
Convention, 1948 (No. 87), b) Right to Organize and Collective Bargaining
Convention, 1949 (No. 98); c) Forced Labour Convention, 1930 (No. 29); d)
Abolition of Forced Labour Convention, 1957 (No. 105); e) Minimum Age
Convention, 1973 (No. 138); f) Worst Forms of Child Labour Convention, 1999
(No. 182); g) Equal Remuneration Convention, 1951 (No. 100); h) Discrimination
(Employment and Occupation) Convention, 1958 (No. 111).
 ‘Priority’ Conventions are those which are strongly encouraged By the ILO
“because of their importance for the functioning of the international labour
standards system”: a) Labour Inspection Convention, 1947 (No. 81); b) Labour
Inspection (Agriculture) Convention, 1969 (No. 129) ; c) Tripartite Consultation
(International Labour Standards) Convention, 1976 (No. 144); d) Employment
Policy Convention, 1964 (No. 122).
 ‘Ordinary’ Conventions are those which are not classified as priority or
fundamental ones.
ILO Declarations, resolutions and conclusions

 Recommendations are documents approved by the


Conference on general assembly by a two-thirds majority.
They do not become mandatory and do not set up rights or
obligations for the ILO members. They are referential rules,
material sources of Law, which should be used as inspiration
by States on the elaboration of their own social politics and
domestic legislation.

 Declarations and Conclusions are documents adopted by the


Administrative Council and by the Conference, stating ILO
fundamental principles and essential objectives, so as technical
regulations.
ILO enforcement procedures
 The ILO has the right and the duty to perform periodical
examinations regarding the application of standards in every country.

 This assessment is performed by both the ‘Committee of Experts on


the Application of Conventions and Recommendations and by the
‘Committee on the Application of Standards’. Those technical reports
are based on direct contacts with the State authorities, and have
relevant political importance, influencing governments to adopt
recommendations and even to ratify conventions.

 The assessment is then discussed by the ‘Conference Committee on


the Application of Standards’.
ILO enforcement procedures
• In the cases of Conventions´ breaches, trade unions, employers´ associations and
ILO Member States may recur to, respectively, two elementary procedures:
• The representation of non-observance of Conventions may be ddressed by
employers´ associations and trade unions to the International Labour Office
(Secretariat), which receives the documents, informs the government and the
Governing Body. The Council, then, determines its admission, and sets up a
committee composed by three members. This committee, thereafter, decides to hear
governmental arguments. Afterwards, the Council may publicize the reclamation (,
or to proceed its filing. It may also address specific recommendations to the
government or start a complaint procedure.
• The complaints of non-observance may be requested by a delegate of the
International Labour Conference, by the Administrative Council or by an ILO
Member State (notwithstanding only if it has ratified the controversial Convention).
Once a complaint is received, the Governing Body may request the manifestation of
the demanded State or directly proceed to the constitution of a Commission of
Inquiry – which shall study the case independently, and request the necessary
information from the complained State, which has the duty to fully cooperate.
Afterwards, the Commission delivers a report which presents its conclusions and
recommendations.
ILO procedure of complaint
the demanded State within three months may take a triple
option:
 Accept the report and its recommendations;

 Refuse the report and its recommendations – on this case the


Council delivers its own recommendations and send the case to
the Committee of Experts on the Application of Conventions and
Recommendations and to the Conference;

 Request the sending of the affaire to the International Court of


Justice, which shall take a final decision which may “affirm, vary
or reverse any of the findings or recommendations of the
Commission of Inquiry, if any”. Notwithstanding, the possibility to
take cases of labor rights violations to the International Court of
Justice has yet to occur.
ILO procedure of complaint
If a violation is confirmed, a solution is not satisfactory negotiated and the country
refuses to comply with the ILO recommendations or the ICJ decision, then there is
the option to apply concrete sanctions on the demanded Members States, through
the application of Article 33 of the Constitution of the ILO, which states:
“In the event of any Member failing to carry out within the time specified the
recommendations, if any, contained in the report of the Commission of Inquiry, or in
the decision of the International Court of Justice, as the case may be, the Governing
Body may recommend to the Conference such action as it may deem wise and
expedient to secure compliance therewith.”

This article, nevertheless, deliberately does not specify which sanctions may be applied,
and, in praxis, it works as an efficacious threat mechanism against Member States.
Thus, it was never concretely applied by the ILO, and remains an open tool. Scholars
argue that, hypothetically, Article 33 may include not only the end of technical
assistance and international cooperation, but also sanctions of other international
bodies, such as the end of loans from the World Bank and the International Monetary
Fund, and monetary and trade sanctions on the World Trade Organization system.
Social clauses in multilateral
or bilateral trade agreements

 North American agreement on Labour Cooperation


(NAALC – annex of NAFTA)

 Domenican Republic and Central America Free trade


Agreement (DR-CAFTA)

 MERCOSUR (Argentina, Brazil, Paraguay, Uruguay)


Unilateral social clauses

GPS – Generalyzed System of Preferences

(see Massachusettes vs. Myanmar products


EU vs. Myanmar products)

It’s debateful their compatibility with the WTO


regulation of free trade becuase these cluases risk to be
deemed as protectionist measures able to distort
competition on global market
Corporate Social Responsability
 Corporate codes of conduct
 Framework agreements
 NGOs’ social responsability standards
 ISO standards
 social label on the products

They are all unilateral obligation taken automously by


companies without any binding legal effect and their
enforcement is addressed only by the pressure customers
can make avoiding to buy products of the companies
doesn’t respect them

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