The ECJ and labour law: A 2008 retrospective

Industrial Law Journal

Volumn 38, Issue 2, 2009, Pages 180-208

  Kilpatrick, Claire ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67049137971     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwp012     Document Type: Article

References (112)

1. P. Davies, 'Case-note on Rüffert', 37 ILJ (2008) 293
2. M. Pilgerstorfer and S. Forshaw, 'Transferred Discrimination in European Law' (2008) 37 ILJ 384
3. C. Barnard, 'The UK and Posted Workers: The Effect of Commission v Luxembourg on the Territorial Application of British Labour Law', (2009) 38 ILJ 122.
4. Signed 26 February 2001, entered into force 1 February 2003.
5. Hence, Commission v Austria (C-465/01, [2004] ECR I-8291) is counted because the Court found that excluding non-Austrian workers from various worker representation functions and institutions breached free movement of workers' rules.
6. C-384/02 Grøngaard [2005] ECR I-9939.
7. Although the directive regulating the contracts of commercial agents (Directive 86/653) provides useful food for thought for labour lawyers, I have not included any decisions concerning that directive in the years examined.
8. C-184/02, [2004] ECR I-7789.
9. C-227/04P Lindorfer v Council of the EU [2007] ECR I-6467.
10. See also below section 6.
11. C-144/04 Mangold [2005] ECR I-9981, C-13/05 Chacón-Navas [2006] ECR I-6467, C-411/05 Palacios [2007] ECR I-8531, Lindorfer above n.7.
12. C-303/06 Coleman, judgment 17 July 2008 on disability, C-427/06 Bartsch, judgment 23 September 2008 on age.
13. Mangold above n.9, C-212/04 Adeneler [2006] ECR I-6057, C-268/06 Impact, judgment 15 April 2008.
14. C-256/01 Allonby [2004] ECR I-873, C-17/05 Cadman [2006] ECR I-9583.
15. C-147/02 Alabaster [2004] ECR I-3101, C-506/06 Mayr, judgment 26 February 2008.
16. C-313/02 Wippel [2004] ECR I-9483, C-220/02 Osterreichischer [2004] ECR I-5907.
17. C-203/03 [2005] ECR I-935.
18. C-117/01 KB [2004] ECR I-541.
19. Above n.7.
20. Discussed below section 2.
21. Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835.
22. For example, in 2008, Rüffert and Commission v Luxembourg - see below section 5.
23. Hence in 2008, Impact and Coleman were decided by 11-judge Grand Chambers while Bartsch, Maruko and Mayr were decided by 13-judge Grand Chambers.
24. See S. Sciarra (ed.) Labour Law in the Courts: National Courts and the ECJ (Hart, 2001).
25. C-437/05 Vorel [2007] ECR I-331 (Czech Republic).
26. See generally, M. Bobek,' Learning to Talk: Preliminary Rulings, the Courts of the New Member States and the Court of Justice' (2008) 45 Common Market Law Review 1611.
27. C-341/05, [2007] ECR I-11767, C-438/05, [2007] ECR I-10779.
28. See, in a large literature on these two decisions, A. Davies, 'One Step Forward, Two Steps Back? Laval and Viking at the ECJ' (2008) 37 ILJ 126
29. J. Malmberg and T. Sigeman, 'Industrial Action and EU Economic Freedoms: The Autonomous Collective Bargaining Model Curtailed by the European Court of Justice' (2008) 45 Common Market Law Review 1115
30. N. Reich, 'Free Movement v. Social Rights in an Enlarged Union - the Laval and Viking Cases Before the ECJ', (2008) German Law Journal 125
31. P. Syrpis and T. Novitz, 'Economic and Social Rights in Conflict: Political and Judicial Approaches to Their Reconciliation' (2008) EL Rev. 411
32. the rich contributions in 10 Cambridge Yearbook of European Legal Studies (2007-08).
33. See below section 5.
34. The remaining four 'miscellaneous' cases are Chamber cases with an AG Opinion. While each is of interest, for space reasons, they are not considered in detail here. See Joined Cases C-55 and 56/07 Michaeler judgment 24 April 2008 (Clause 5(1)(a) PTWAD used to strike down an Italian law discouraging part-time work), C-313/07, Kirtruna, judgment 16 October 2008 (ARO: Insolvency), C-396/07 Juuri, judgment 27 November 2008 (ARD: Transfer on date of expiry of collective agreement; guidance on employer responsibility when employee conditions worsen under new applicable collective agreement after transfer), C-306/07 Ruben-Andersen, judgment 18 December 2008 (interpreting applicability of internal dispute resolution mechanism in Article 8 Employee Information Directive (91/533)).
35. Above n.9.
36. See the summary by AG Sharpston in Bartsch, points 32-7.
37. Inspired it seems by AG Tizzano (points 84 and 101).
38. Para.77.
39. Above n.7.
40. Above n.9.
41. C-427/06, judgment 23 September 2008.
42. Consolidated with the other gender equality at work directives in Directive 2006/54/EC effective from 15 August 2009.
43. Above n.9.
44. C-388/07, Opinion of 23 September 2008.
45. The judgment of 5 March 2009 in C-388/07 Heyday does little to encourage the view that a coherent and consistent approach has been developed by the Court in the age discrimination area. See the analysis of M. Connolly, this issue.
46. C-267/06 Maruko, judgment 1 April 2008.
47. C-54/07 Feryn, judgment 10 July 2008.
48. See, similarly, the decision on the recital concerning retirement in the FETD, Palacios above n.9 at para 44.
49. C-303/06 Coleman, judgment 17 July 2008.
50. See further, Pilgerstorfer and Forshaw above n.1.
51. Above n.38.
52. C-506/06, judgment 26 February 2008.
53. C-268/06, judgment 15 April 2008.
54. C-307/05, [2007] ECR I-7109.
55. The fact that 'employment conditions' are undefined in Clause 4(1) is not apt to render the clause insufficiently precise. Additionally, neither Clause 4(2) (allowing application of the pro rata temporis principle where appropriate) nor Clause 4(3) which entrusts social partners and the Member States with the definition of arrangements for facilitating 'application' of the principle of non-discrimination affect in any way the substance of that principle.
56. Such as Case 2/74 Reyners [1974] ECR 671,
57. Case 43/75 Defrenne II [1976] ECR 455.
58. C-6/90 and 9/90 Francovich [1991] ECR I-5357, paras 12-22.
59. C-364/07, Order of 12 June 2008.
60. Above n.11.
61. Article 137(2) EC which permitted the adoption of the Fixed-term Work Directive to which the Agreement based on Article 139 EC was attached.
62. For Analysis of the UK's position when implementing the FTWAD, see C. Kilpatrick, 'His New Labour Reconfigured Employment Legislation?' (2003) 32 ILJ 135, 150-1. C-14/04 Dellas [2005] ECR I-10253.
63. See also Maruko above, s 3.
64. Above n.9.
65. Article 43 EC for the self-employed.
66. A posted worker is a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works (Article 2 PWD).
67. Above n.24.
68. There have been two main disputes, one concerning the Total oil refinery in Killinghome, North Lincolnshire; the other concerning power-station construction contracts made by Alstom with EU contractors in Kent and Staythorpe. Both concerned two main issues: Allegations of posted workers being paid less than that specified in the applicable UK collective agreement (the National Agreement for the Engineering Construction Industry); refusals by EU contractors to consider job applications from qualified UK applicants. The Total dispute received more press coverage and was resolved in just over a week by ACAS mediation between the employers, the GMB and UNITE on 5 February 2009. The Alstom dispute is still ongoing.
69. C-310/07 Holmqvist, judgment 16 October 2008.
70. C-246/06 Rüffert, judgment 3 April 2008, C-319/06 Commission v Luxembourg, judgment 19 June 2008.
71. See respective analyses of Davies and Barnard above n.1.
72. Directive 96/71/EC.
73. Compare the rationales discussed by Paul Davies above n.1.
74. Although it is possible to envisage an additional 'very strong worker protection' approach in which Article 49 EC is instead considered a priori non-applicable. This is paralleled in the competition law context by C-67/96 Albany [1999] ECR I-5751. However, it remains to determine the precise circumstances in which Article 49 EC is a priori inapplicable: Much turns on whether these boundaries are tightly or widely drawn - see also Anne Davies above n.25 at 139-41.
75. C-113/89, [1990] ECR I-1417.
76. Same as those for building sector - see next note.
77. Where a State has no facility for declaring collective agreements universally applicable, certain other broadly applicable (national, territorial, industry wide) collective agreements are allowed to set the host-state standards applicable to posted workers.
78. C-60/03, [2004] ECR I-9553.
79. C-165/98, [2001] ECR I-2189.
80. See also Joined Cases C-49/98, 50/98, 52-54/98 and 68-71/98 Finalarte [2001] ECR I-7831
81. C-164/99 Portugaia Construções [2002] ECR I-787.
82. Above n.62.
83. Above n.62.
84. The law was a public procurement provision requiring certain labour standards to be protected by public contractors.
85. Above n.1 at 295.
86. Commission v Luxembourg, para. 26.
87. For textbook examples of this understanding of Article 3(7) (underlining the U-turn) see AG Mengozzi in Laval above n.24 and AG Bot in Rüffert above n.62, the latter given before judgment in Laval
88. Paras 80-1 Laval, para. 33, Rüffert.
89. See further Barnard above n.1 at 129.
90. Paras 8-81. Instead, it allows voluntary employer agreements to higher host-state standards, or higher home-state standards.
91. Para 82.
92. Para 84.
93. Intriguingly, though this is not part of the facts before the Court, apparently Sweden had expressly had recourse to Article 3(10) PWD for 'freedom of association'. It is a pity this point was not taken before the ECJ. For the information on Sweden see Malmberg and Sigeman above n.25.
94. Para 68.
95. Para. 108.
96. C-117/96, [1997] ECR I-5017.
97. C-198/98, [1999] ECR I-8903.
98. Directive 2002/74/EC amended Directive 80/987/EC.
99. Recital 7 Directive 80/987/EC.
100. This is considered signifi cant by AG Ruiz-Jarabo Colomer in his Opinion in Holmqvist.
101. In this sense the legal basis of the PWD (Articles 47(2) and 55 EC) may be significant. A different view of the legal basis' significance, whereby the Court's 'worker-protective' approaches to the PWD were not sustained by its legal basis, is proposed by Paul Davies, 'The Posted Workers' Directive and the EC Treaty', 31 ILJ (2002) 298 at 300, 305.
102. See V. Hatzopoulos and T. Uyen Do, 'The Case-law of the ECJ Concerning the Free Movement of Services: 2000-2005' (2006) 43 Common Market Law Review 923. However, there are important ways in which the 'new approach' to posted workers, with its insistence on minimum standards, appears stricter than the general Article 49 EC case-law.
103. In turn, this makes the victorious defeat of the first draft of the Services Directive 2006/123 (Bolkestein draft), in part because of its emphasis on home-state control in relation to inter alia posted workers, seem truly pyrrhic so far as posted workers are concerned.
104. Against Luxembourg (twice, C-70/08, judgment 9 October 2008, C-340/07, judgment 6 March 2008), Italy (twice, C-504/06, judgment 25 July 2008, C-46/07, judgment 13 November 2008) and France (C-226/06, judgment 5 June 2008). Two of the cases concerned health and safety, two straightforward failures to transpose directives.
105. C-246/06 Velasco-Navarro, judgment 17 January 2008 (Directive 2002/74 did not affect freedom possessed by Member States to include/exclude unfair dismissal compensation as 'pay')
106. C-498/06 Robledillo-Núñez, judgment 21 February 2008 (guarantee institution could lawfully refuse to pay unfair dismissal compensation owed to employees whose compensation had been agreed in an extra-judicial conciliation settlement). Both build on C-442/00 Rodriguez-Caballero [2002] ECR I-11915. 94 C-128-131/07 Molinari Order 16 January 2008: Until the legislature acts to restore equality in whichever way it sees fit, national courts are obliged to extend the most favourable treatment to those disadvantaged by the discrimination. See also Vassilakis above n.50.
107. C-361/07, Order 16 January 2008.
108. C-287/08, Order 3 October 2008.
109. For an excellent recent illustration see C-350 and C-520/06 Schutz-Hoff, Stringer, judgment 20 January 2009 paras 37-41.
110. See above section 2.
111. See generally C. Kilpatrick 'New EU Employment Law and Policy' in G. de Búrca and J. Scott (eds), Law and Governance in the EU and the US (Hart, 2006); on new regulatory agendas and techniques in the working-time context see C. Barnard, S. Deakin and R. Hobbs, 'Reflexive Law, Corporate Social Responsibility and the Evolution of Labour Standards: The Case of Working Time' in O. De Schutter and S. Deakin (eds), Social Rights and Market Forces: Is the open Coordination of Employment and Social Policies the Future of Social Europe? (Bruylant, 2005), 205.
112. Litigation on equality law and working-time are both powerful examples.