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Lecture 2 European Labour Law and Social Security
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This document contains all the notes I took during lecture 2 of the course 'European Labour Law and Social Security Law'. I passed this course with an 8!
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Lecture 2 Enforcement and Fundamental Rights23th of April 2019
EUCFR and Social Rights: We are going to talk about the fundamental rights and the
enforcement of European Labour Law. The two aspects are clearly related. The EU charter,
which is binding since 2009, has additional value for the enforcement of EU labour law.
Enforcement of social rights in classic EU labour law: Many of the rights are granted by
directives. Directives do not produce horizontal direct effect and this is a problem for EU
labour law. We can have a lot of directives, but what is the use when employees cannot go
to court and sue their employers and enforce this rights in horizontal dispute. However, we
see in recent case law that the court of justice had developed alternatives for the rule that
directives do not produce direct horizontal effect.
Social rights in internal market law: the issue here is that we have an internal market and
freedoms, and these are by nature economic freedoms. How do these economic freedoms
relate to social rights? The second pillar is a balancing of the economic and social values of
the EU.
Protection of social rights and EMU austerity measures: this topic will not be on the
exam, but it is important to have heard of it.
The court of justice of Van Gent and Loos / Costa Enel has ordered the direct effect and the
supremacy of EU law. EU law always prevails over national law. That has led to a lot of
controversy when it comes to the protection of fundamental rights. EU law did not protect
fundamental rights. This mean that if the national law does protect fundamental rights,
EU law prevails over national law that MS have to sacrifice fundamental right
protection.
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, But the court of justice said in the Solange-case that fundamental rights also constitute
unwritten principles of EU law. Since the 1960s, you can say fundamental rights are part of
EU law / are general principles of EU law. The discussion is always about civil and political
rights. Social rights seem to get a little bit less attention than the other rights. The whole
notion however, that fundamental rights are general principles also extends to social rights.
This is an unwritten general principle of EU law. The fact that it is unwritten, is towards
citizens a little but dissatisfactory. The political view was to make these rights visible for the
citizens. In Nice we adopted the EUCFR but it was non-binding yet. Since Lisbon we have
the EUCFR which is the same one as from Nice, the big difference being that it is now
binding since 2009. So we have a long document containing a long list of rights which are
binding and must be respected. The member states must respect this.
The charter, and that is quite unique, covers both civil and political rights and economic and
social rights. In the council of Europe, we have two instruments:
1) ECHR: covers mainly civil and political rights and we have;
2) The Charter which is a separate treaty, a separate charter which contains the classic
social rights.
What is the main difference between these rights?
Civil and political rights are the negative rights and the state should let them exist. They exist
and must be respected. Think about the freedom of movement / religion etc. Economic and
social rights are traditionally defined in terms of positive obligations of the state. States must
ensure that everybody has access to education / healthcare / employment etc. The state has
a duty to intervene to make sure that these rights are guaranteed.
In the council of Europe system, these two treaties have a clear cut distinction and the
distinction has to do with supervision. With civil and political rights you can enforce it and go
to court. With economic and social rights, the idea is much more that you cannot go to court
to enforce it. The right of employment does not give you the right to go to court and claim a
job. It is a duty for the state to have a micro economic industry. All states must report under
the social charter by the ministers about what measures they have taken. There is no judicial
enforcement. Keep in mind the classic distinction that it does not in the same way hold true
to EU law. When you speak of social rights in EU law, rights which seem in nature more civil
and political but which are applied in the field of labour law, are also referred to as social
rights. For example: equal pay for men and women. In EU law these laws are often referred
to as social rights. You can also think about the right to strike. Workers and representatives
have the right to strike. You apply it in the field of labour law. However, in the classic way of
thinking it is not completely correct. To conclude, keep in mind the distinction between civil
and political and social and economic rights.
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