Labor Regulations of European Community Law - Term Paper Example

The Treaty establishing a European Economic Community (hereinafter EEC) was signed in Rome on March 25, 1957 and came into force on January 1958. The Preamble to the Treaty of Rome delineates as its purpose to lay the foundations of an ever closer union among the peoples of Europe. The original signatories were Belgium, Germany, France, Italy, Luxembourg and the Netherlands. Specifically, the Treaty of Rome sought a common market and the development of economic activities . . . with free movement of the economic tools of production between its Member States. From the inception of the European Community until the adoption in 1986 of the Single European Act (hereinafter SEA) the concept of free movement was directed exclusively toward the factors of production, i.e., labor, business and capital. Prior to SEA, workers were primarily viewed as mere tools of production and their exercise of rights under the EC Treaty was within that economic context. The SEA introduced a more encompassing view from an individual engaged in free movement as a factor of production, i.e., a worker, to the free movement of a worker as a free movement of a person now appearing as Article 14 (ex Article 7a) of the EC Treaty, which states: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services, and capital is ensured in accordance with the provisions of this Treaty. The movement from viewing an individual as a tool of production to a person with inherent rights was taken one step further with the adoption of individual citizenship status within the EU. Citizenship within the EU occurred as a result of the Treaty on European Union (hereinafter TEU), commonly called the Maastricht Treaty, signed in February 1992 and entered into force on November 1, 1993. The Treaty provides: Every person holding the nationality of a Member State shall be a citizen of the Union…Citizenship of the Union shall complement and not replace national citizenship and…Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. While taking thirty-five (35) years to recognize by Treaty the inclusion within the concept of free movement of tools of production, EU citizenship, various efforts moving in that direction occurred during and after this extended transition period. One of the events came three (3) years after adoption of the SEA with the Charter of Fundamental Social Rights for Workers (hereinafter the Social Charter) in 1989. The Social Charter was initially promoted in 1988 by then EC Commission President Jacques Delors to ensure that workers in the EC would benefit as much as employers from a fully functioning single market. While opposed by the United Kingdom, and its then Prime Minister Margaret Thatcher, the then other eleven (11) Member States, actively supported the Charter. The document, a non-legally binding instrument called for improved pay for workers, better living and working conditions, social security, freedom of association and collective bargaining, health protection and workplace safety, and most controversial of all, information consultation, and worker participation in managing a company. The Maastricht Summit of December 1991 found then U.K. Prime Minister John Major continuing Thatchers opposition to the Social Charter by vetoing its provisions from inclusion within the TEU. The other Member States bound themselves legally to the Charters provisions notwithstanding its exclusion from the TEU. In May 1997, Tony Blair replaced Major with a Labour Government and rejected Thatchers characterization of the Social Charter . . . (as) a socialist charter . . . by acceding to the social policy provisions of the 1997 Amsterdam Treaty which included within its provisions the Social Charter. As noted above, the Treaty of Rome contained few provisions that specifically covered the social needs or aspirations of the peoples of Europe. Free movement of workers and their freedom of establishment to engage in their chosen form of economic activity, however, does appear. Under Article 39 of the EC Treaty, citizens within the EU, due to the abolition of any discrimination based on nationality . . . [,] enjoy the ability: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purposes of employment . . . [and] (d) to remain in the territory of a Member State after having been employed . . . on the same terms, legislatively and administratively, as nationals within their host Member State. Exceptions to this policy, known within the EU as derogations, are allowed for limitations justified on grounds of public policy, public security or public health . . . . It should be noted that the free movement of workers has been more successful in the abstract than in practice. The Commission of the European Communities in a communication issued on February 28, 2001 to the Council of the European Community observed: The right and opportunity to live and work in different Member States within the EU as enshrined in the Treaty of Rome reflects an important political aspiration of Europes citizens, even though the numbers of people actually moving between Member States have not generally matched up to this aspiration throughout much of the Unions history. While recognizing that the development of new economic opportunities within the EU will reduce the pressure . . . for increasing the physical re-location of people[,] the EU Commission looked to the United States for mobility comparisons. Notwithstanding the dissimilarity between the U.S. and the EU, the Commission observed: • Mobility in the EU is guaranteed by law. • Less than 2% of EU nationals are resident in another Member State. • Mobility, annually, of EU nationals within the EU is less than 0.4%--some 1.5 million people, it is 6 times higher in the U.S. • In 1998 migration between States in the U.S. was approximately 2.4% of the population. • Considerable diversity on the level of mobility within the EU exists, ranging from over 1.2% on an annual basis for Germany and Denmark to the lowest of less than 0.2% for France, Spain and Greece. • Even mobility between regions within EU Member States is low, i.e., Spain 0.6%, Germany 1.2% and the United Kingdom 1.6%. In the U.S., mobility between counties within a State is about 3% annually. • EUs low level of mobility within the Union constitutes a constraint on economic activity. The Commission then proceeded to lay out a program to the EU Council to remedy by 2006 the EUs lack of mobility, develop work skill improvement and the removal of barriers to mobility. Existing mobility within the EU, according to studies, occurs primarily among highly qualified labour and in high-technology and growth industries, including services. The age group 16-30, and especially . . . the age group 21-25 . . . are most inclined to engage in free movement within the EU for economic advancement. As can be readily gleaned, the right of free movement exists within the EU, but its utilization is low. Expansion, however, has occurred in the service sector of the economy. The EC Treaty contains no definition as to what constitutes a worker. Prior to the SEA, the concept of free movement was limited to those designated as workers, individuals engaged in economic activity. With the adoption of the SEA, the concept was expanded to include all citizens within the EU. The European Court of Justice (hereinafter ECJ), played a major role in shifting the focus of EU provisions on free movement relating to natural persons away from mere factors of production. The ECJ in its role to ensure that in the interpretation and application of this Treaty the law is observed [,] has developed a body of case law to effectuate the free movement of persons. The ECJ has resolved cases including, but not limited to, Member States seeking to exclude the Treatys coverage of trainees, [Lawrie-Blum v. Land Baden-Wurttemberg, 1986 E.C.R. 2121 (1986)] individuals working for their board and keep, [Steymann v. Staatssecretaris van Justitie, 1988 E.C.R. 6159 (1988)] individuals working below established national criteria for subsistence wages [Levin v. Staatssecretaris van Justitie, 1982 E.C.R. 1035 (1982)], and concerning whether professional football players were workers and thereby not bound to rules enacted by national athletic associations to limit their mobility [Union Royale Belge de Societes de Football Assoc. (ASBL) v. Bosman, 1995 E.C.R. I-4921]. In all the foregoing instances the person performing the task was determined to be a worker and in the process the ECJ frustrated a number of countries in their immigration policies. For instance in [Lawrie-Blum v. Land Baden-Wurttemberg, [1986 E.C.R. 2121 (1986)], the ECJ held that: “15 The commission takes the view that the criterion for the application of article 48 is the existence of an employment relationship , regardless of the legal nature of that relationship and its purpose. The fact that the period of preparatory service is a compulsory stage in the preparation for the practice of a profession and that it is spent in the public service is irrelevant if the objective criteria for defining the term worker, namely the existence of a relationship of subordination vis-a-vis the employer, irrespective of the nature of that relationship, the actual provision of services and the payment of remuneration, are satisfied . 16 Since freedom of movement for workers constitutes one of the fundamental principles of the community, the term worker in article 48 may not be interpreted differently according to the law of each member state but has a community meaning. Since it defines the scope of that fundamental freedom, the community concept of a worker must be interpreted broadly (judgment of 23 march 1982 in case 53/81 Levin v Staatssecretaris van Justitie (1982) ECR 1035 ). 17 That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned, the essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.” Thus, national definitions of worker must take into account the community meaning of worker as defined from time to time by the ECJ. Another example of an expansive definition which completely changed the national immigration policies of states is Steymann v. Staatssecretaris van Justitie, [1988 E.C.R. 6159 (1988)] wherein the Court held that Article 2 of the EEC Treaty must be interpreted as meaning that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work. Similarly, in Union Royale Belge de Societes de Football Assoc. (ASBL) v. Bosman, [1995 E.C.R. I-4921] the Court laid down a number of principles which have far-reaching consequences on national immigration policies. Firstly, the Court held that It is not necessary, for the purposes of the application of the Community provisions on freedom of movement for workers, for the employer to be an undertaking; all that is required is the existence of, or the intention to create, an employment relationship. Secondly, Rules governing business relationships between employers in a sector of activity fall within the scope of the Community provisions relating to freedom of movement for workers if their application affects the terms of employment of workers. That is true of rules relating to the transfer of players between football clubs which, although they govern the business relationships between clubs rather than the employment relationships between clubs and players, affect, because the employing clubs must pay fees on recruiting a player from another club, players opportunities for finding employment and the terms under which such employment is offered. Thirdly, the Court held that the Community provisions concerning freedom of movement for persons and freedom to provide services do not preclude rules or practices in sport which are justified on non-economic grounds which relate to the particular nature and context of certain competitions. Such a restriction on the scope of the provisions in question must remain limited to its proper objective and cannot, therefore, be relied upon to exclude the whole of a sporting activity from the scope of the Treaty. Furthermore, the Court held that the freedom of movement for workers, guaranteed by Article 48 of the Treaty, is a fundamental freedom in the Community system and its scope cannot be limited by the Communitys obligation to respect the national and regional cultural diversity of the Member States when it uses the powers of limited extent conferred upon it by Article 128(1) of the EC Treaty in the field of culture. In a few words, in reaching a definition of a worker, the ECJ concluded the term encompassed a person who: (1) performed services for and under the direction of another person in return for which he receives remuneration[;] [Lawrie-Blum v. Land Baden-Wurttemberg, 1986 E.C.R. 2121] (2) engaged in activity for which one only receives their substance for their work, which must be regarded as an economic activity, and the economic activity, however, must be genuine and effective [Steymann v. Staatssecretaris van Justitie, 1988 E.C.R. 6159 (1988)] for the provider to be deemed a worker; (3) the determination of a worker and what constitutes economic activity may not be defined by reference to the national laws of the Member States . . .[;] [Levin v. Staatssecretaris van Justitie, 1982 E.C.R. 1035 (1982)] and (4) national legislation cannot be the basis to defeat Treaty rights possessed by citizens of the EU nor may the rules of private associations be utilized to prevent freedom of movement [Union Royale Belge de Societes de Football Assoc. (ASBL) v. Bosman, 1995 E.C.R. I-4921]. The general and consistent thrust of the ECJ has been to strike down barriers and obstacles to the free movement of workers and, more recently, citizens of the EU in general. The ECJ has declared European Community Law holds supremacy over national law. Indeed, it has stated: [N]o appeal to provisions of internal law of any kind whatever can prevail [Commission v. Italian Republic, 1972 E.C.R. 527]. Attempts to exercise the defense of force majeure have fallen upon deaf ears at the ECJ. In Commission v. Belgium [1970 E.C.R. 237], the Member State argued that the government had performed its responsibility in that it sent to the national assembly legislation to effectuate a directive. However, through no fault of the Belgium government, the legislation had not over a two year period been enacted, nor could it compel passage by the legislative branch in a democracy. The government argued before the ECJ that under Belgiums constitutional separation of powers nothing further on its part could be done. The ECJ rejected this defense, concluding that the Member State had an absolute obligation to implement, notwithstanding the constitutionally based separation of powers defense or the national assemblys failure to act. The EC Treaty and the legal process developed under that document, once adopted by the Member State is, according to the ECJ, an integral part of the legal system of each of the Member States. Under such circumstances, a national court is bound to apply that law in cases before it where applicable [Costa v. ENEL, 1964 E.C.R. 585 (1964)]. While EU law may be supreme, the issue of whether all or only portions of the EC Treaty were directly effective was resolved early in the judicial history of the Community. In NV Algemene Transport-en-Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration [1963 E.C.R. 1 (1963)] the ECJ held that certain provisions of the EC Treaty are available to citizens of the EU and as such may be invoked by them in national courts. In doing so, the ECJ recognized a legal heritage consisting of rights . . . by reason of [the] obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community. Initially, van Gend & Loos was criticized as judicial activism, but it is today a cornerstone of ECJ case law and has been consistently followed. Citizens of the EU, by reason of this decision, have been able to litigate against their home or host Member State to enforce EC Treaty generated rights, including the right of free movement [Duyn v. Home Office, 1974 E.C.R. 1337 (1974)]. The concept of direct effect on issues of free movement to enforce rights of EU citizens against Member States is also available to impact relations between individuals and to create [direct] rights in respect of [the individuals concerned] which [the] national courts must safeguard. [Belgische Radio en Televisie v. SV SABAM 1974 E.R.C. 51, 62 (1974)] Derogations to free movement, establishment, and the right to provide services may be justified for public policy, security or health reasons. The ECJ has adopted a rule of reason mandating that any restriction be objectively necessary and justified in pursuance of a public interest not incompatible with a Community goal. Whatever restriction is applied must have equal application to persons providing services within the Member State. Under the principle of proportionality, the derogation must be proportional to the goal sought to be achieved when applied to non-nationals. In Reyners v. Belgium [1974 E.C.R. 631] it was argued that the EC Treaty derogations related to official authority in both establishment and the right to provide services applied to the profession of a lawyer (avocat) in Belgium. The ECJ rejected the contention, holding that while attorneys exercised a judicial function they did not enjoy official power or powers of coercion over citizens. As the Court observed: Professional activities involving contacts, even regular and organic, with the courts, including even compulsory co-operation in their functioning, do not constitute, as such, connection with the exercise of official authority. The most typical activities of the profession of avocat, in particular, such as consultation and legal assistance and also representation and the defense of parties in court, even when the intervention or assistance of the avocat is compulsory or is a legal monopoly, cannot be considered as connected with the exercise of official authority. The exercise of these activities leaves the discretion of judicial authority and the free exercise of judicial power intact. The transformations which have taken place over the past 20 years as regards the change from viewing the freedom of movement clause of the EU as applicable to factors of production for establishing a common market and applying to workers incidentally as a factor of production to the freedom of movement as a human right of natural persons in EU by slowly expanding the definition of worker has frustrated the national political ambitions regarding EU borders and their insertion into law has brought about a fundamental change to the nature of sovereignty as expressed in borders. Immigration policy is one of the primary expressions of sovereignty as the right to control the movement of natural persons across a nation’s borders. Our traditional concept of the state as an area around which one can draw a line of sovereignty in red ink no longer applies to the EU. The pooling of sovereignty which is at the heart of the EU project has changed the meaning of borders and their application. This in turn has led to new tensions regarding the relationship of law and borders within the new configuration of sovereignty. National immigration policies are now threatened by the ECJ at any time expanding the definition of worker by the use of judicial activism. While ensuring freedom of movement within the EU as a right for every EU citizen has its merits, the same should come about by Community Legislation and Treaty rather than activist measures by the ECJ. Otherwise EU states would have uncertainty relating to its immigration policies and might view the ECJ’s actions as violative of their sovereignty. Bibliography A. Hering, Towards An EU Charter of Fundamental Rights, 7 Maastricht J. Eur. & Comp. L. III (2000) A.M. Arnull et al., European Union Law (2000) Catherine Barnard, EC Employment Law (1996) D. Bruce Shine, The European Unions Right of Free Movement of Workers, 30 U. Mem. L. Rev. 817 (2000) D. Bruce Shine, The European Unions Lack Of Internal Borders In The Practice Of Law: A Model For The United States?, 29 Syracuse J. Intl L. & Com. 207 Elizabeth Freeman, A Common Market for Professionals, 33 Current Legal Probs. 57 (1980). Hjalte Rasmussen, European Community Case Law (1993) John Mccormick, Understanding The European Union 164-70 (1999) Paul Craig & Grainne De Burca, EC Law (1996) Stephen Weatherill & Paul Beaumont, EC Law (1995) (2d ed. 1995) Read More