Constitutional developments

Author:Silviana Sciarra
Profession:Professor of Labour Law

1. The institutional context. 2. The incorporation of the European Convention on Human Rights (ECHR) in national legal systems. 3. The expansion of constitutional rights.


The perspective adopted in this Report when describing the evolution of labour law is a perspective of change, neither of resistance to innovation, nor of strenuous defence of the status quo in national legal systems.

Arguing that respect for fundamental rights in the implementation of employment policies should function as a limit to uncontrolled deregulation is, therefore, a way to interpret labour law reforms in an advanced and modern theoretical framework. Recent constitutional developments in several Member States, as shown in this section, confirm that this approach is already part of national legislative agendas.

The most innovative solutions marking the evolution of labour law are to be found in legal systems characterised by the solidity of constitutional traditions. In most cases this argument goes as far as saying that constitutional rights, while being adaptable to changes in work organisation, still set a limit to deregulatory approaches in legal reforms, thus favouring creativity.

Responses from Member States to the employment guidelines, combined with autonomous choices of national legislatures, let broad areas of labour law emerge as coherent patterns of evolution. A first evidence of autonomous choices and a sign of evolution are to be found in the account of how fundamental rights have been strengthened in some national legal systems, either because of accession to international sources, or because of constitutional reforms.

There is a beneficial mutual influence between the national and the supranational level of law-making for the expansion of fundamental rights. Even the debate on institutional reforms and on the Charter of Fundamental Rights stimulates a positive circulation of ideas.

1. The institutional context.

In the early days of the EEC, the dilemma consisted in making efficiency of the market compatible with social rights. National constitutional traditions, while counterbalancing the weak legal basis in the Treaties, also established a level of protection not to be waived.

In subsequent years, the search for a new equilibrium in the construction of Economic & Monetary Union showed up even more dramatically the absence of employment policies. The aftermath of the Amsterdam Treaty meant a further consolidation of the laboratory of ideas and proposals aiming at the consolidation of supranational fundamental social rights.

2. The incorporation of the European Convention on Human Rights (ECHR) in national legal systems.

In a comparative study on the evolution of labour law such a rich background cannot be ignored. National developments have to be framed within a changing institutional context. National legal systems took on board the adoption of the Charter of Fundamental Rights and reflected on possible implications in the enforcement of European law. Subsequently, national actors in their different capacities have contributed in feeding the work of the Convention on the Future of Europe.14

It is suggested - and should be substantiated by the results of the present research project - that labour law played a key role in national reforms related to the evolving institutional structure of the EU. The accent put on fundamental social rights must be interpreted in conjunction with the authoritative positions expressed by academics and institutions at a European level,15 thus confirming the solidity of national constitutional traditions.

Future constitutional reforms at the European level should be such to preserve coherent national systems of rules. The supranational level should provide a unitary source in which fundamental social rights are not separated from civil and political rights.The Charter of Fundamental Rights adopted at Nice already goes in this direction. In the circulation of international standards, this may represent a point of convergence with sources adopted by the Council of Europe, such as the ECHR and the European Social Charter taken together.

Besides the negative freedom of association, Articles 6 (right to a fair judgment) and 8 (protection of private and family life) of the ECHR have been referred to in Nordic labour law.

In the UK the ECHR was incorporated into British law through the Human Rights Act of 1998 (entered into force on October 2, 2000).The Act is supposed to give further effect to those rights which are already enjoyed under the Convention. It means that while previously the application of the ECHR was limited to cases where law was ambiguous, now courts are obliged to decide cases enforcing Convention rights. Existing and future legislation has to be interpreted in conformity with ECHR and courts have to take Strasbourg case law into account as far as they consider it relevant for the proceedings before them. Direct actions under the Act are permitted against public authorities breaching the rights.16 The relevance of ECHR provisions has been shown in several labour law cases. 17

Nordic countries too have given attention to the ECHR. Denmark incorporated the ECHR into law in 1997. Finland did the same in 1990; in 1995 a new chapter on fundamental rights was inserted in the Constitution, followed by an overall review in 2000. The rights to privacy, freedom of assembly and association, equality, work and social security, are now all granted by the Finnish Constitution.

Sweden incorporated the ECHR into law with an Act of Parliament in 1994, following the indications of a government 'Committee on Rights and Freedoms'. Notwithstanding the fact that such a source is not constitutional, national legislation should comply with the principles of the ECHR and national courts may not apply legislation in manifest contrast with it. 18

In Denmark, only trade unions - not individual employees - have locus standi before the Labour Court. If a trade union does not bring the case to the Labour Court, any of its members has the right to apply to the ordinary court. This subsidiary locus standi for individual employees was confirmed in an amendment to the Labour Court Act in 1997.The amendment was introduced to secure compliance with Article 6 ECHR.

In Sweden it has been discussed whether the Labour Court is independent and impartial according to Article 6 ECHR. 19 Art. 8 ECHR has been invoked in several cases concerning drug and alcohol testing. 20

The impact of constitutional reforms may also be evaluated with regard to subsequent changes in legislation.This is the case in Finland, in dismissal law. Before the constitutional reform, unlawful dismissals in the public sector were regulated under rules internal to the administrations. After the reform, the Supreme Administrative Court found that such rules did not constitute sufficient ground for dismissals of individual employees. New legislation was therefore approved, covering a large part of the working population. The constitutional reform in this country also inspired legislation on the protection of privacy.

Examples taken from the Nordic countries indicate how the incorporation of international sources into domestic law has an immediate and visible implication for individuals enforcing their rights in national courts. In the particular case of Sweden, the incorporation of ECHR was also a way to comply uniformly to EC law in view of acceding to the EC.21

Furthermore, recently in France the Cour de Cassation has repeatedly invoked the ECHR, in particular Articles 8 and 14, in cases dealing with the protection of private life, and Art. 6, for guaranteeing fair judgements.22

3. The expansion of constitutional rights.

The expansion of national constitutional rights is a trend in the evolution of labour law which we encounter in several legal systems.

We have previously underlined the role of sources external to the EU, such as the ECHR, in the strengthening of fundamental rights.The protection of fundamental social rights has been constantly guaranteed in France throughout the 1990s, due to a central role acknowledged by the courts to the Constitution and the introduction in the labour code (Art. L 120-2 Labour Code) of new guarantees for the enforcement of individual and collective fundamental rights at plant level.

The 1975 Greek Constitution, greatly influential on the evolution of labour law, was amended in 1986 and 2001. New civil rights were recognised, such as the right to the protection of personal data (new Art. 9A). Such developments were the result of international and European standards. In 2001 the right to collective bargaining in the public sector (new Article 22, paragraph 3) was included. In addition, the recourse to affirmative action to promote equality between men and women is provided for for the first time (new Article 116, paragraph 2).

The Italian Constitutional Law 3/2001 introduced changes in Title V of the 1948 Constitution.The impact on labour law has to do with the distribution of legislative competence between the state and the regions.This highly sensitive subject matter is still in the process of being interpreted. One contentious point has to do with maintaining fundamental labour law rights within the exclusive state competence and delegating to regional competence only very specific legislative interventions.

Several cases are pending before the Constitutional Court and some have been decided. The Court has ruled in favour of a unitary role of legal principles to be kept within state competence and of uniformity in the discipline of fundamental rights. 23 This leaves to the Italian regions the competence to intervene on matters which have to do with all relationships established between individuals and the public administration. One example of a unitary competence is the organisation of services to promote employment on a national level. 24

Legislation on employees' personal data often has a constitutional relevance in the protection of individual employees' dignity at work.We can see examples of such legislation in Finland (2001)25 and in Luxembourg (2002).26 In the Finnish Act, protective measures are directly addressed to employees, specifying what the law on the handling of personal data indicates in more general terms.The influence of the EC Directive 95/46 can be traced in the notion of personal data which can be collected during a life-cycle. In Luxembourg the law transposing the same Directive includes in its Article 11 specific measures on the lawful collection of data at the workplace level, assisted by criminal sanctions. Control is exercised on certain matters by the comité mixte d'enterprise. In Portugal, the new Labour Code of 200327 extensively protects the right to privacy in the employment context in Articles 16 to 21.

The Finnish example of special legislation has led to no case law, so far. In Finland, however, legislative efforts in this field have continued. Late in 2003 the Finnish government submitted a proposal to parliament concerning confidentiality and use of e-mail in working places and drug testing of workers.The proposal is agreed upon among the political parties and central labour market organisations. It lays down both procedural and material rules, aimed at balancing the employee's right to confidentiality and the employer's legitimate prerogatives.

Such interesting initiatives by national legislatures do not diminish the importance of a specific and much awaited directive on the collection of employees' data. This is perhaps one of the fields in which reference to fundamental rights does not in itself suffice to provide full protection to the individuals. Legal techniques must be modernised and take into account different ways of protecting the individual in different phases of the life-cycle.28

Another way of looking at the role of fundamental rights is to consider how they operate in contractual relationships and whether they change the balance of powers and obligations.This is particularly interesting for fundamental rights of a 'new' generation, including rights enshrined in the Nice Charter of Fundamental Rights.

Let us consider the issue of lifelong training. In French law, from 1992 onwards, the notion of 'obligation to train' has become more and more precise. It implies that the employer can impose a training programme within the contents of the individual contract of employment. In case of restructuring, the employee cannot be dismissed if the employer has not fully exploited the possibility of 'adapting' the employee to a changing working environment in the enterprise. Case law has had a considerable impact on this evolution. In 1992, the Cour de Cassation delivered two key decisions.The Court argued that there are 'implicit obligations' -obligations d'adaptation et de reclassement -in the employment contract so that without the employer first attempting adaptation, dismissal lacks a just cause.

In this perspective, evolution of labour law in France aims to create an obligation directly enforceable in contracts of employment. The right to training is also enshrined in collective agreements (starting with a 1991 inter-sector agreement, followed by a series of other agreements). The 2003 Inter-professional Agreement and the 2004 Bill, which is still being discussed in parliament, deal with different actions, so that each specific training need can be taken into account.The ' développement des compétences ' is an interesting solution being discussed. It requires the worker's written consent and takes place during working time.After one year, the trained worker has priority in assignment to the job for which the specific qualification has been gained.

Training can also take place outside working time, for a maximum of 80 hours per year, if there is an agreement between the employer and the worker, with half pay.

----------------------------- See also national contributions available at:

It may suffice to mention the active role of ETUC. One example is U. Muckenberger (ed.), Manifesto Social Europe, 2001, ETUI, Brussels. See also R. Blanpain, B. Hepple, S. Sciarra, M. Weiss, Fundamental Social Rights: Proposals for the European Union, 1996, Peeters, Leuven; European Commission, Directorate General, Employment, Industrial Relations and Social Affairs, DG V, For the Europe of civic and social rights: report by the Comite des Sages: Brussels, October 1995 - February 1996, 1996, Office for Official Publications of the EC, Luxembourg; Report of the Reflection Group preparing the agenda for the 1996 IGC, SN 509/95.

G. Morris,'The Human Rights Act and the Public/Private Divide in Employment Law', (1998) Industrial Law Journal, pp. 293 ff. 17

See K. D. Ewing,'The Human Rights Act and Labour Law', (1998) Industrial Law Journal, pp. 278-279. 18

I. Cameron, An Introduction to the European Convention on Human Rights, 2002, Iustus, Uppsala, 4th edition, pp. 154 ff. I owe to Jonas Malmberg this quotation and the ones in the next two footnotes.

See van Peijpe in: J. Malmberg (ed.), Effective Enforcement of EC Labour Law, 2003, Kluwer Law International, The Hague, pp. 141 ff. The ECHR has recently declared a complaint concerning the impartiality of the Labour Court admissible. Judgement forthcoming (appl. no. 41579/98 Kellerman).A case concerning Denmark was declared inadmissible by the ECHR in 2002 (Appl. no. 58341/00 Madsen).

Swedish Labour Court (for instance AD 2001 nr 3), on Art. 8.

I. Cameron, An Introduction to the European Convention on Human Rights, 2002, Iustus, Uppsala, 4th edition, p. 155. 22

National Report on France, Chapter I, section 2. 23

Corte Costituzionale 359/2003; 361/2003.

Corte Costituzionale 363/2003.

Act on the protection of personal integrity in working life, 477/2001 (Report on Finland). 26

Law 2 August 2002, of 13 August 2002, transposing the relevant Directive. See Report on Luxembourg. 27

Decreto-Lei n° 99/2003 of 27 August 2003.The new code entered into force on 1 December 2003. 28

The lack of specific legislation applying to employment is indicated, for example, in the Greek Report (see Chapter I, section 4).