European

Labour Law

Lecture 02C

Initially there was no ambition to protect fundamental rights in the EEC.

So the Treaty of Rome did not mention fundamental rights, although later lawyers recognised in some treaty provisions the idea of fundamental rights

For instance

- Arts 7 and 48 EEC (no discrimination on grounds of nationality)

- Art. 119 EEC (equal pay).

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This lack of protection became problematic in the 1970s, after the ECJ had ruled thatEEC law was the supreme law in all MS.

What if EEC law would conflict with fundamental rights as recognised in constitutions of the MS?

Dubious verdicts of the ECJ (Internationale Handelsgesellschaft)

Critical rulings by the Constitutional Courts of Italy and Germany.

1977 Joint Declaration of Council of Ministers, European Parliament and Commission.

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Additionally 2 kinds of actions were considered, but not realised in those years:

- Writing an own EEC Bill of Rights

- Accession by the EEC to the ECHR

In 1989 was realised the text of a Community Charter of Fundamental Social Rights for Workers

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The Community Charter of Fundamental Social Rights for workers was adopted on a Meeting of the EC Heads of State and Government, by all members but not by UK Prime Minister Thatcher. So its legal status has never been clarified.

Still the Commission used it as a kind of a social action programme to propose various Directives many of them have been adopted during the 1990s.

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1997 Amsterdam Treaty brings:

A Provision (Art. 6 TEU) recognising as general principles of EC/EU law

- The ECHR

- The constitutional traditions common to the MS

1999 A Convention to draft the EU Charter of Fundamental Rights (CFREU)

Immediately and unanimously adopted on the European Council of Nice, but what was its legal status???

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2002-2006 Preparation of the Constitutional Treaty

- Art. 6 TEU was to be maintained and extended with the promise that EU shall accede to the ECHR

- The EU Charter of Fundamental Rights (CFREU) was to be inserted in extenso as Part II of the Constitution

Finally, in the Treaty of Lisbon, the Charter was not inserted in extenso. It was only said, that the CFREU is recognised by the EU and “shall have the same legal value as the Treaties” (Art. 6 TEU).

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The CFREU embraces both civil/political rights and social/economic/cultural rights.

Social rights in art. 16-36 CFREU

Protagonists of human rights pin their hopes on this CFREU which has now a binding character.

However 3 shadow sides:

- In many respects the Charter shows more modest texts than comparable rights in other charters

- UK, Poland and Czech Rep. made reservations

- CFREU regards EU law, has no horizontal effects and should be narrowly construed (art. 51/52 CFREU

Ominous Heath case!

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Negotiations with CoE on accession EU to ECHR have started. Ultimately a treaty will be necessary which must be endorsed by all ca. 50 CoE MS

Main questions:

- how to avoid that citizens get “two bites in the apple”?

- how to avoid diverging judgments of the CoJEU and the ECtHR on the same fundamental rights?

Already one resounding example in the right to strike:

- CoJEU in 2007: restrictive judgments Viking/Laval

- ECtHR: in 2010: positive Enerji judgment.

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