European Labour and Social Security Law – Literature Notes Week 1: Working Time
T. Jaspers et al, European Labour Law, 2019, Chapter 1 (pp.1-43)
1.1 European Labour Law: Significance, Sources and Scope
1.2 The European Union and Development of Social Policy
1.3 The Competences of the EU Legislature
1.3.1 Introduction
1.3.2 The Legislative Competences
1.3.2.1 Conferral of Powers and Types of Powers
1.3.2.2 Subsidiarity and Proportionality
1.3.3 EU Labour Legislation: Form and Legal Basis
1.3.3.1 EU Legislative Instruments for Labour Law
(a) Regulations and Directives
Regulations have general application and are binding in their entirety and directly
applicable in all Member States (Article 288 TFEU). Examples in labour law are
Regulation 492/2011 on freedom of movement for workers and Regulation 883/2004
on the coordination of social security. In labour law, regulations are exceptional: for
the major part of EU labour law, the main principle is that Member States remain
competent to design and organise their national systems.
Considering then that national systems have important differences, directives, which
leave them more discretion, may be more appropriate. Unlike regulations, however,
directives must be transposed, meaning that, in principle, they do not create directly
applicable rights or duties for private persons or organisations.
(b) Specific Characteristics of Labour Law Directives: Implementation by Social
Partners
European labour law gives social partners (i.e. employers’ and employees’
organisations) an important role (on EU, national, sectoral, and undertaking level),
which can be seen as contributing to flexibility and to the principle of subsidiarity.
The role of social partners is regulated, in the first place, by Article 153(3) TFEU,
which provides that a Member State can leave it to ‘management and labour’
(meaning social partners) to introduce the necessary measures by agreement to
transpose or implement a directive or decision. A second special role for social
partners exists at the EU level, as their agreements can under some conditions be
implemented by means of a directive (see Article 155 TFEU).
1.3.3.2 Legal Basis
(a) Article 153 TFEU
Article 153 TFEU gives a legal basis for adopting legislation on social policy issues,
including labour law. Before Amsterdam, labour legislation had to be based on
Articles 115 (internal market) or 352 (‘catch all provision’), both of which require
unanimity. There is no general legislative competence to adopt social policy
instruments, as the powers and voting procedures vary depending on the area
concerned (e.g. workers’ health and safety, information and consultation, etc.).
According to paragraph (2), directives can be adopted following the OLP by the
Council and the EP after consulting the ESC and the CoR. In four sensitive areas,
however, unanimity in the Council is required and the EP does not have co-decision
, rights: social security and protection of workers; protection of workers where their
employment contract is terminated; representation and collective defence of
workers and employers, and; conditions of employment for TCN’s. Furthermore,
paragraph (4) provides that the directives shall not affect the right of Member States
to define the fundamental principles of their social security systems. Moreover, in
the areas of combating social exclusion and the modernisation of social protection
systems, there are no powers to adopt legislative instruments, according to Article
151 TFEU, as a result of which, under Article 153(2)(a), only ‘measures designed to
encourage cooperation between Member States’ may be taken. Such measures are
often called soft law instruments and best practices, as they are not meant to
harmonise national legislation by binding law.
Article 153(5) TFEU then explicitly mentions in which areas of labour law the EU does
not have any legislative powers at all: pay, the right of association, the right to strike
or the right to impose lock outs. Still, the freedom to provide services and the
freedom of establishment have had, in their interpretation of the CJEU, serious
influence on the right to strike, for instance. Finally, other measures apart from
legislative acts may have an effect on an excluded area, such as employment policy
on wages.
The directives based on Article 153(2) have two specific characteristics. One is that
they can only impose minimum requirements (see Article 153(2)(b)), and the second
is the requirement that the interests of small and medium-sized undertakings should
be considered (under the same Article), which sometimes has the effect of directives
only being applicable to enterprises with a minimum number of workers.
Finally, Article 157(3) provides a legal basis for the OLP to be used to ensure the
application of the principle of equal opportunities and equal treatment of men and
women in matters of employment and occupation, including pay. This exists
alongside Article 153(1)(i), which mentions ‘equality between men and women
regarding labour market opportunities and treatment at work’.
(b) Article 155 TFEU: European Social Partners as ‘Legislature’
In the areas mentioned in Article 153 TFEU, social partners can make agreements
that can be implemented by directives, which contributes to the ‘European social
dialogue’ that the Commission must support under Article 154(1) TFEU. First, it is
relevant to remark that Article 154(2-3) TFEU provides that the Commission must
consult management and labour (the social partners) on the possible direction of
Union action before submitting proposals in the social policy field. However,
according to Article 155(2) TFEU, the agreement can also be implemented by a
decision (i.e. a directive) of the Council after a joint request by the signatory parties.
Since the Treaty does not define who are to be considered and consulted as social
partners, the Commission has developed criteria in the Communication concerning
the applicability of the Agreement on social policy. Furthermore, in the Ueapme case,
it was established that the principle of democracy requires that the participation of
the people be assured, and that, when a degree of representativity is lacking, the
Commission and the Council must refuse to implement the agreement.
Agreements of European social partners that have been implemented by a directive
are: the Directive on parental leave (96/34/EC), the Directive on part-time work
(97/81/EC), and the Directive on fixed-term labour contracts (1997/70/EC).
(c) Article 115 TFEU
Although Article 115 TFEU is not related directly to social objectives and subjects, it
can serve as the legal basis for directives intended to harmonise parts of national
labour law. It allows the Council, acting unanimously under an SLP, to harmonise laws
for the purpose of the establishment or functioning of the internal market. Since
differences between national labour law can lead to distortion of competition on the
