Why the ECJ rulings highlight the need for a reinvigorated
social Europe
It is probably fair to say that the European
Court of Justice (ECJ) is an institution not used to hitting the
headlines. However, its recent judgments in the Viking, Laval and
Rüffert cases, have understandably given rise to consternation
amongst trade unionists across the whole of Europe. In them, the
court appears to give a higher priority to the freedom of
circulation of capital and labour across the European market than
to the rights of trade unions to take industrial action or make
collective agreements. With the revision of the decade-old Working
Time Directive and legislation on temporary agency workers still
deadlocked by the failure of Member States to agree a deal in
Council, these judgments have served to add to the frustrations
felt by many trade unionists about the progress of European social
legislation.
However, any moves to heap the blame on the
Court are misplaced. It is important to remember that the ECJ can
only rule on disputes that are referred to it about the scope and
meaning of existing law. If its rulings show that existing laws are
inadequate, it is up to us to change the law.
In these particular cases, changes to European
law (and to national law in some countries) can provide remedies to
the insufficiencies that have been shown up by these judgments.
These judgments have been based on legislation
adopted under the existing European treaties. The Treaty of Lisbon
will, if anything, make it easier to rectify the current legal
situation thanks to its changes to the decision making procedures.
It also contains some important new social safeguards that do not
exist in the current treaties, and the treaty makes the Charter of
Fundamental Rights legally binding on the EU institutions. The
charter includes a number of social and work-place rights,
including the right to negotiate collective agreements, take
collective action and to fair workplace conditions. The EU
institutions and Member States, when implementing EU law, will have
to respect these rights. Suggestions that the Lisbon Treaty should
not be ratified because of these court judgements are totally
misplaced.
Over the next few months, Socialist
politicians, including Labour MEPs, and the ETUC should discuss and
define exactly what legislative changes are needed at European
level. This discussion must reach clear conclusions in time to
feature in the electoral programmes for 2009. They would include,
for instance, a revision of the Posted Workers Directive.
Of course, there will be a political battle to
bring in the necessary changes to legislation. Nowadays, we have to
fight such political battles not just at local and national level
but at European level. The necessary legislation, if not adopted
before then, should feature in the manifesto of the Party of
European Socialists for the 2009 European elections, and the PES
should make it clear that it will not approve the appointment of
the new European Commission following the elections (nor vote for a
President of the Commission, who will henceforth be elected by
Parliament) unless there is a clear commitment that the Commission
will put the necessary legislation before Parliament.
Action is also needed at national level in
some Member States. For example, the court rulings hinged on the
fact that collective agreements are not enshrined in law in some
countries and therefore do not bind those that are not party too
them (eg service providers in other Member States). Recognising
collective agreements as legally binding in national law (as is the
case in some countries) would avoid some of the difficulties caused
by the recent cases.
Either way, this is an opportunity for us as
Labour politicians to demonstrate that the concept of social Europe
will not be steamrollered by the liberalising tendencies of
Barroso. The EU is not a project designed to enable unrestrained
market forces - and, as the Socialist Vice President of the
Commission, Margot Wallstrom, recently said, "the right of
collective bargaining and action is not secondary to internal
market rules". Indeed, this approach is embodied in the Lisbon
Treaty, which commits the EU to "a social market economy, aiming at
full employment and social progress". It is time to start making
this a reality.
Richard Corbett MEP
(This article was first published in Tribune magazine in
May 2008)
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