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College 2 aantekeningen Comparative Labour Law
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Comparative labour lawLecture 2
Part 2A - EU
1. Main Sources of International and European Labour Law and Social Security Law
Global
● The United Nations in New York (UN)
● The International Labour Organisation in Geneva (ILO)
Semi global
● The Organisation of Economic Cooperation and Development (OECD)
European
● The Council of Europe (CoE)
o Much more comprehensive than the EU
o 47 member states (instead of the 27 as the EU does)
o Cannot take decisions and issue rules that immediately bind member states
▪ Thus not an ideal form to make labour laws
● The European Community/European Union (EC/EU)
2. Examples of Institutions and Standards
a. The UN
the UN Covenant on Economic, Social and Cultural Rights
b. The ILO
the convention on the freedom of association of trade union
c. The OECD
the Code for Multinational Enterprises
d. CoE
the European Social Charter (ESC)
e. EU
the Regulation on Free Movement of workers
3. Three Kinds of Impact of International Standards
Three main types of impact can be discerned:
a. An indirect and voluntary impact
● Rules and norms originated from united nations, ILO and OECD and council of Europe
(safe for European conventions of human rights) have this impact. All European
countries have ratified many rules and norms set by united nations, ILO, and council
of Europe. However, they also refuse to ratify several other rules and norms set by
these organisations. States in Europe are free to ratify or not to ratify the rules of
these organisations. The authority of these organisations is too weak to impose
these rules and norms against the member states’ will. Thus, to have an impact,
these laws must first be ratified by a member state. As soon as they have ratified
this, the state must bring their own laws in line with that norm. However, states may
neglect this.
● In this case, citizens may comment on this.
b. An immediate and mandatory impact and
c. A vague impact: soft law.
4. Two Approaches to The Incorporation of International Standards in National Law
A. The dualist approach (e.g. DE, IT, UK and IR)
● Citizens can only invoke treaties and conventions ratified by their country in so far as
they have been transposed by the legislator into acts of parliament
, B. The monist approach (e.g. NL, BE, FR and SP)
● Citizens can indeed invoke treaties and conventions ratified by their country,
provided that the terms of the treaty/convention by the very nature and content is
suitable for direct applicability.
5. A Summary
Both approaches have in common that states are free to accept the international standards or not to
accept (ratify) the standards.
The difference between dualism and monism is essentially about the condition at which the accepted
(ratified) standard can be invoked in court.
⮚ In a dualist country, after ratification, a further act of transposition is necessary before the
international standard becomes part of the legal order in that country
⮚ In a monist country, ratification of an international standard is enough for that standard to
become part of the legal order, given that this is directly applicable in court.
There is, alternatively, another adoption option available in which member states have ratified
norms, but have failed to bring their national provisions in line with them. For such cases, the
organisations sometimes offer procedures for complaints. These procedures may lead to options, or
even decisions, of supervising bodies for violation of the relevant norm. sometimes these procedures
are only open for governments of all member states, sometimes to trade unions and employers
associations, and sometimes to all citizens involved however, member states can neglect the
opinions and decisions of the supervising bodies resulting from those procedures because they have
a different opinion, and then it has no real effect.
⮚ Labour law and social security law can have a certain effect on labour law, although in an
indirect and voluntary basis. They only have an impact when a state voluntarily ratifies norms
and adapts its laws to these rules. It also may keep their national provisions, even when they
do not seem to be in line with the ratified norms.
6. Council of Europe
● The European Convention on Human Rights and Fundamental Freedoms (ECHR), 1950
o Only one document that has a comparable, strong, immediate, mandatory effect on
national laws similar to the EU laws. All member states of council of Europe are
bound to respect the standards of this convention; all member states have accepted
this convention (binding)
● Supervised by the European Court of Human Rights (ECtHR) in Strasbourg
Most international and European rules are minimum standards; countries may only refrain from
maintaining these rules if their own rules are in favour of the workers
7. Strong Binding Force Of EC/EU Law
● EU Member States gave up art of their sovereignty
● They cannot refuse to apply EU standards
● They must accept priority for these standards and active enforcement
● If a membership disapproves of a regulation or directive, they can use their membership to
try and block the enactment of the instrument. This is a viable option, as it’s the council of
ministers that has the final say in regulations and directives issued by the EU.
● Most labour law and social security law items dare the opposition of 4 or 5 EU member
states in the council of ministers is enough to block the adoption of a measure; sometimes
even 1-member state can block. So; for member states this council of ministers is the last
chance to protect their interest; once an EU law has been passed, the member states have
been bound by it, whether they agree or not.
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