Prof. Dr. Christof Kerwer. EU Labour Law. Baku State University. April 2013

Transcription

1 Prof. Dr. Christof Kerwer EU Labour Law Baku State University April 2013

2 5 Fundamental Freedoms and Labour Law

3 I. Free movement of workers (Art. 45 TFEU, RE (EU) 492/2011) 1. Regulatory content a) Access to the labour market b) Principle of non-discrimination c) Prohibition of restrictions

4 I. Free movement of workers b) Principle of non-discrimination Equal treatment with regard to all working conditions EU primary law: Art. 45 II TFEU EU secondary law: Art. 7 I RE (EU) 492/2011 Direct effect also between private individuals In collective agreements (Walrave case) In individual contracts (Angonese case) Consequences: Each discriminatory provision in collective agreements or individual contracts is void Discriminated persons can refer to this principle and claim the same benefits as the favoured group

5 I. Free movement of workers ECJ: Bosman Case (C-415/93) Problem: compatibility of nationality clauses and transfer fees in the professional football sector with the free movement of workers ECJ: Nationality clauses violate the principle of non-discrimination as a part of the free movement of workers ECJ: Transfer fees do not violate the principle of non-discrimination but constitute a restriction on the freedom of movement free movement also contains a comprehensive prohibition of restriction ECJ s arguments: Wording and scheme of Art. 45 TFEU Synchronisation with the other fundamental rights Ratio legis: Creation of a European labour market

6 I. Free movement of workers c) Prohibition of restriction Content Prohibition of measures that prevent or deter EU citizens from leaving their country of origin in order to exercise their right to freedom of movement Boundary Action is only in conflict with the prohibition of restriction if it affects the access to the labour market significantly (Graf ruling) Direct effect between private individuals? Affirmed for collective private provisions (Bosman ruling) No rulings yet for individual contract provisions

7 I. Free movement of workers 2. Effects on the employment relationship a) Conclusion of an employment contract Ensuring equal chances of getting a job ( if ) No discrimination against foreign applicants Boundary: Art. 45 IV TFEU ( public administration ) Public administration must be interpreted strictly e.g.: trainee teacher (Lawrie-Blum case) Equal treatment in recruitment ( how ) No less favourable contractual arrangements without objective justification e.g.: fixed term contracts without objective ground (Spotti case)

8 I. Free movement of workers 2. Effects on the employment relationship b) Existing employment relationship Equal treatment in all working conditions E.g.: bonuses, severance pay, redundancy pay E.g.: access to trade unions and works council Forbidden: direct/indirect discrimination In particular, discrimination which is irrespective of the nationality but mostly affects foreigners to their detriment is forbidden (indirect discrimination) e.g.: reckoning of periods of employment (Schöning-Kougebetopoulou case)

9 II. Freedom to provide services 1. General (Art. 56 TFEU) Freedom of a service provider to pursue his activity temporarily in another Member State Content similar to other fundamental freedoms: Principle of non-discrimination Prohibition of restriction

10 II. Freedom to provide services 2. Problem: Posting of employees Right of service provider to post workers to a destination State Not dependent on recruiting local staff Third-state nationals may also be posted Restrictions must serve a legitimate purpose and must be proportionate to the attainment of this objective e.g. no work permit required Most important complex of problems: minimum wage ECJ: minimum wage is compatible with Art. 56 TFEU

11 1. General III. Freedom of establishment Freedom to carry on an economic activity in a stable and continuous way in one or more Member States Freedom of movement for the self-employed persons 2. Problem: Strikes against relocations Trade unions try to prevent or complicate relocations by collective (industrial) actions (strikes, boycotts, etc.) Problem: Such measures of the trade unions may interfere with the freedom of establishment On the other hand: employees and trade unions make use of their right to collective action

12 III. Freedom of establishment ECJ: Viking Case (C-438/05) Rules of the Treaty on freedom of establishment apply to collective actions no general exemption is accepted But: recognition of the right to strike as a (European) fundamental right (see Art. 28 CFR) A balance must be found between fundamental freedoms and fundamental rights neither of these categories has absolute priority Measures must serve the protection of workers as a legitimate aim and they must be proportionate Consideration if these requirements are fulfilled must be carried out by the national court