European Labour Law in Context: A Review of the Literature

• Date: 01 June 1999
• DOI: http://doi.org/10.1111/1468-0386.00069
• Published date: 01 June 1999
• Author: Brian Bercusson

Review Articles

European Labour Law in Context:

A Review of the Literature

Brian Bercusson*

This essay attempts to convey to the reader some of ideas which have emerged about

the general structure of EC labour law from the many volumes which have been

produced to date. The opening chapter of my book on European Labour Law explains:

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The intellectual challenge of competing conceptualisations is a hallmark of EC law, and EC

labour law is no exception. Students of the subject are confronted with very different

perspectives on the same material—a highly stimulating prospect allowing for debate over the

merits of different analytical frameworks .. . examination of competing conceptualisations . . .

highlight[s] how EC law (and EC labour law) is an intellectual discipline which is in the process

of being developed by academics (and practitioners and judges) from all over Europe. The

shape of EC labour law is not determined by those steeped in the UK or any other national

labour law tradition. Among others, Belgian, Danish, French and Italian, as well as British

labour lawyers are engaged in proposing conceptual frameworks for the EC labour law that

applies in their jurisdictions. A number of the attempts that have emerged in the European legal

literature so far reveal certain trends which illuminate the characteristic intellectual constructs

available.

2

This review is in three parts. Part One analyses a range of books on European

labour law which have emerged in recent years. The product of one or two authors’

attempts to comprehend the new subject, these are classified into a number of models.

3

Part Two looks at three of the most recent books, two of which are collections of

essays from labour lawyers in more than one country.

4

Part Three addresses a more ambitious question: what do these books tell us, or fail

to tell us, about European labour law, and about EC law in general. The answer to this

European Law Journal, Vol. 5, No. 2, June 1999, pp. 87–102

© Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK

and 350 Main Street, Malden, MA 02148, USA

* Brian Bercusson is Jean Monnet Professor of European Law at the University of Manchester and Visiting

Professor at the Swedish National Institute for Working Life, Stockholm.

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European Labour Law (Butterworths 1996), 14–15.

2

For the intellectual framework of my own book, ibid, pp24–25 and chapter 1 generally.

3

This Part is an updated version of a review of books on EC labour law undertaken some five years ago in

my own text on the subject, ibid, chapter 1, pp14–24. Part One covers those books (some now appearing

in later editions), and includes others.

4

This review does not purport to be exhaustive. Above all, it is confined, due to my own linguistic

limitations, to books written in English, French or Italian. I can only apologise to the readers of this

review for this major constraint. One of the texts reviewed is co-authored by a Dane, and one of the two

collections of essays reviewed in Part Two is edited by a Spanish professor and includes a number of

contributions from that jurisdiction; the other collection’s editors include a German professor and has

contributions by three German professors of labour law.

question, it is suggested, lies in other books reviewed in this Part, which deal with the

subjects explored in these texts, but written by experts in disciplines such as industrial

relations and social policy.

I Models of EC Labour Law

Reviewing a number of texts, it is possible to identify five models of EC labour law:

(a) equal treatment and health and safety at work;

(b) the traditional model of national labour law: individual employment and

collective labour law;

(c) a modernised model of national labour law: employment and labour markets;

(d) common market law focussing on the labour market; and

(e) a miscellany of substantive topics affecting labour addressed by the EC law-

making institutions.

A EC Labour Law as Equal Treatment and Health and Safety at Work

The first model is exemplified by two complementary volumes in which Angela Byre,

who is British, collected laws, cases and materials on the social policy of the EC:

Leading Cases and Materials on the Social Policy of the EEC, and EC Social Policy

and 1992: Law, Cases and Materials.

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As their titles indicate, the two volumes (a total

of 925 pages) are a collection of primary materials on EC labour law and social policy.

The outstanding feature of their structure is the division into only three main

elements: sex equality, health and safety, and employment protection. Within this

structure, over 40% of the material is concerned with equality between the sexes, just

under 30% with health and safety, and about one-sixth concerned with employment

protection.

B The Traditional Model of National Labour Law: Individual Employment and

Collective Labour Law

In the text entitled Droit du Travail Communautaire,

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by Roger Blanpain and Jean-

Claude Javillier, respectively Belgian and French professors of labour law, EC labour

law is structured using the traditional categories of individual and collective labour

law. However, individual labour law is dominated by the free movement of workers,

and also includes instruments with a strong collective dimension (collective dismissals,

transfer of undertakings, etc.).

There is relatively little space for collective labour law, and what there is is almost

exclusively to do with workers’ participation, not collective bargaining. Despite the

relatively large amount of EC legislation and case law on equality between men and

women and on health and safety, neither of these is given a proportionate amount of

attention and nothing like that accorded to these topics in the first model.

Another text by Roger Blanpain, with the collaboration of Chris Engels, both

Belgian professors of labour law, European Labour Law,

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adds to Part I on Individual

European Law Journal Volume 5

88 © Blackwell Publishers Ltd. 1999

5

Published by Kluwer, in 1989 and 1992.

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(Litec 1991); 2nd ed, (L.G.D.J. 1995).

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(Kluwer, 2nd ed, 1993). A third and revised edition of 1995 includes only Parts I and II, with an Epilogue.

This is repeated in the 5th and revised edition of 1998.