The impact of EU law

Author:Silviana Sciarra
Profession:Professor of Labour Law
Pages:53-58
SUMMARY

1. Anti-discrimination law.

 
INDEX
CONTENT

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The impact of EU law on the evolution of labour law can be measured in many ways.

A vital result, not comparable with the influence exerted by other large supranational legal systems, is the one affecting legal culture. National academic communities have been deeply influenced by European law.

Courts have also been receptive in the understanding of how EU law penetrates national legal orders. National judges have progressively expanded their horizon by including EU sources among the ones to be enforced.They have also introduced elements of change and adaptation, confirming how powerful judicial institutions can be.

There are countries, like France, in which the presence of a powerful supranational legislature has been acknowledged slowly and at times in a contested way.

On the contrary, in Sweden, ever since this country joined the EU in 1995, or in the United Kingdom, most initiatives of the legislature have been linked to European targets. In Portugal and Greece evolution due to the impact of EU law meant, in some cases, opening up for the first time to completely new patterns of labour law.

There may be instances of disputable impact of EU law, because of side effects on internal labour standards following transposition of a directive.

In this regard, EU law can be used strategically and serve to justify legal interventions which do not encounter widespread and unconditioned acceptance. As a consequence of this attitude, we encounter in some cases an 'ideological' use of EU law, as a justification for internal political disagreement. Examples of this kind emerge from the present study and are often the outcome of changes in government coalitions.

The impact of EU law can also be seen on the building of institutions. Several examples show that in complying with employment policies, specialised bodies have been created within national administrations. Even though such innovations may not always be permanent, they facilitate learning processes and put an emphasis on compliance mechanisms, as well as on the comparability of national responses.

There is no doubt that anti-discrimination law represents the area in which the impact of EU law has been most remarkable, in terms of quality of the legislation and for its dissemination in all countries.

Anti-discrimination law is a field of consolidated tradition in EU law and proves how a slow process of adaptation piloted the introduction - and in other cases the specification -of fundamental constitutional rights. In this field, as the recent 2000 Directives confirm, there is an ongoing open process of evolution, which still has to prove its potential in changing national legislation, as well as in modifying legal culture.

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The results emerging from this comparative study prove that there are many ways to measure the impact of EU law on the evolution of labour law.

It has been stressed repeatedly that patterns of evolution, different from country to country, did not question the solidity of fundamental rights and of constitutional traditions. In this regard, the role of national constitutional courts, acting as guardians of an internal legal coherence - and yet as interlocutors of the ECJ - has been crucial134.

Changes brought about by EU law have deeply influenced national academic communities.

The Italian Constitutional Court, for example, presented a strenuous defence of labour law principles in deciding that a request for a national referendum to repeal legislation on fixed-term contracts and part-time work was not admissible.The Court referred to Article 75 of the Constitution, namely to the prohibition to repeal laws which ratify international treaties.With a very articulate argument, the Court found that the Italian legislation on part-time and fixed-term contracts anticipated compliance with the two European directives covering the same fields. A referendum causing the abrogation of such laws was found not to be admissible because it could have exposed a Member State of the EU to the violation of EU law135.

The British example is most remarkable. Intellectual freedom and open-mindedness have characterised labour law scholarship in the evaluation of EU law and of its impact on the domestic legal system. One could argue that critical approaches taken by the national community of scholars counterbalanced the -at times sceptical or reticent -attitude of the legislature.

In some cases the evolution of labour law has been driven by advanced and sophisticated legal theories, resulting in the re-discovery of a comparative method136. Comparative labour law has progressively gained an invaluable role in the understanding of the many differences which characterise national legal systems. Scholarship, when it follows this path, endorses the process of European integration, by showing that different approaches do not impede a progressive interpretation of supranational legal standards137.

However, EU law can in some cases be used strategically, to justify legal interventions which do not encounter widespread and unconditional acceptance.This proved to be the case in labour law reforms of the labour market and in the regulation of working conditions affecting workers' health and safety. As a consequence, we encounter an 'ideological' use of EU law in some cases.The latter may be taken almost as a justification for domestic political disagreement. Examples of this kind emerge from the present study and are developed in national reports, often as the outcome of changes in national governments.

National courts have also been deeply influenced by the understanding of how EU law penetrates national legal orders138. National judges have progressively expanded their horizon by including EU sources among the ones to be enforced.They have also introduced elements of change and adaptation, confirming how powerful judicial institutions can be.The selection of cases sent to the ECJ through the mechanism of preliminary ruling procedures proves that significant domains of labour law are part of a constructive interchange139. All this confirms that national judges are relevant actors in the ongoing process of integration through law.

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However, a detailed comparative study of certain areas of labour law, such as the ones dealt with in Sections V and VI, proves that the evolution of labour law relies on legislatures, both at the national and the supranational level.The suggestion emerging from the present study is to start a new phase of positive integration through law.This will imply measures aimed at enhancing further coherence in the evolution of national laws, by assessing some binding principles

It is difficult to ascertain whether compliance with EU law was also at the origin of complexity and fragmentation in the style adopted by the legislature.

A number of reports comment on the fact that legislators have been hyperactive, often reiterating interventions on previous texts and cross-referring to other laws140.

It is more likely that complexity and at times lack of clarity in drafting legislation has to do with the nature of the measures required. Labour law reforms aimed at broad regulation - at times re-regulation - of the labour market fall into a new evolutionary pattern.The scope of legal intervention is often so wide that it seems more correct to talk in terms of employment law, rather than labour law141.

This terminology is suggested with several implications. It includes legislation related to the individual contract of employment and, in a much wider perspective, to employment policies under the OMC. In contrast to legislation implementing fundamental rights, employment policies are open to more frequent changes and may vary over the years.

The combination of the two techniques, as for example the right not to be discriminated coincides with the aspiration to be employed under just and equitable conditions, constitutes a great challenge for the future of labour law.

If we look at some national cases, we find interesting signs of evolution due to the impact of EU law.

There are countries, like France, in which the presence of a powerful supranational legislature has been acknowledged slowly and at times in a contested way. One example worth quoting is the difficult acceptance of the ECJ's ruling Stoeckel, which brought about the repeal of the ban on night work for women in November 2001142. On the other hand, the Renault case in 1997 showed the limits of EU legislation and prompted necessary legislative measures143.

The Cour de Cassation started to show a more open attitude towards EU law after 2001. The overall disposition towards EU law has slowly changed in the last ten years. It is now reported as a widespread impression that the supranational legal system brought about guarantees for minimum rights of workers, notwithstanding the pressure due to restructuring and economic dismissals.

In Greece and in Italy, changes introduced by recent reforms in compliance with EU law are described as 'modernisations' and are mainly related to the search for more flexibility in the labour market, which also determines changes in individual labour law.

In Greece it is recognised that innovations have been introduced because of EU law, for example, with the transposition of the Working Time Directive144. Even the current harsh confrontation with the Commission on the implementation of the Directive on fixed-term contracts confirms the extraordinary impact of EU law.

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There may also be cases of disputable impact of EU law because of side effects on internal labour standards following a transposition of a directive.

This is the case with the 1998 British Working Time Regulations, transposing the 1993 Working Time Directive. The introduction of standards in this field has been counterbalanced by controversy over the derogations which, according to some commentators, go beyond the scope of the Directive145.

In Italy too the transposition of the Working Time Directive has given rise to similar criticism, since the legislature introduced standards not provided for in the Directive.

The transposition of the Part-time Work Directive, both in Italy and in the UK, has given rise to very controversial evaluations, whereas for a country like Portugal it meant introducing legislation for the first time in this field.

Formal notice from the Commission was sent to the Swedish government in March 2002, to signal difficulties in the implementation of the Working Time Directive. In Sweden both the Fixed-term and Part-time Directives introduced significant changes through the enforcement of the equal treatment principle.

The present research also shows the impact of EU law on the building of institutions. Several examples indicate that in complying with employment policies, specialised bodies have been created within national administrations. Even though such innovations may not always be permanent, they facilitate learning processes and put an emphasis on compliance mechanisms as well as on the comparability of national responses.

The report on Finland highlights how the social partners accepted the challenge of EU membership and contributed to fulfilling its obligations.This has also increased co-operation for the transposition of legislation. The apparatus of semi-mandatory law put in action in Denmark, relevant for the transposition of EU law with the social partners' participation, is equally interesting.

In Chapter IV, section 2, reference is made to committees created in Greece and France for the promotion of social dialogue and facilitating implementation of employment policies. Bodies created within the administration for monitoring the concrete enforcement of such policies are equally valuable tools in strengthening what should become a permanent learning process. The openness of such a process confirms that the impact of EU law goes beyond the binding legal effects due to the transposition of directives.

1. Anti-discrimination law

There is no doubt that anti-discrimination law represents the area in which the impact of EU law has been most remarkable, in terms of quality of the legislation and for its dissemination in all countries.

In Ireland the Employment Equality Act 1998, the purpose of which was to outlaw discrimination in employment on nine separate grounds (gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller Community) further implemented Directives 75/117/EEC and 76/207/EEC and anticipated Directives 2000/43/EC and 2000/78/EC.

In the UK, in 2003 the government introduced two new regulations covering discrimination on the grounds of sexual orientation [the Employment Equality (Sexual Orientation) Regulations 2003] and religion or belief [the Employment Equality (Religion and Belief) Regulations 2003].The 1995 Disability Discrimination Act was also amended in 2003, and is due to take effect from October 2004. New laws on age discrimination are expected in 2005.All these pieces of legislation implement the Directives 2000/43/EC and 2000/78/EC.

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In Greece the transposition - which is still in the process of being completed - of Council Directives 2000/43/EC (implementing the principle of equal treatment of persons irrespective of racial or ethnic origin) and 2000/78/EC (establishing a general framework for equal treatment in employment and occupation) implies opening up to notions previously unknown such as harassment and indirect discrimination.Another major innovation, departing from civil law principles, regards the reversal of the burden of proof, following the transposition of Directive 97/80/EC146.

In Italy too the Decrees147 transposing the 2000 Directives opened up the system to the new concept of harassment, not previously regulated.They also included among discriminatory acts those based on religion, personal conviction, handicaps, age and sexual orientation.The two recent Decrees have been criticised for their unnecessarily wide derogations to the principle of non-discrimination. For instance, some requisites for the hiring of workers in the army and the police, as well as in jails, even related to the above mentioned areas of anti-discrimination law, are considered genuine qualifications for employment. Furthermore, a very wide derogation from the principle of non-discrimination is introduced with no link to specific cases, but simply based on 'objective justifications'. Finally, it appears completely out of context in a text devoted to anti-discrimination measures an article in which it is stated that people found guilty of pornography and other sex-related crimes can be refused employment in several places, including schools, centres for care and social assistance148.

In Finland the Equality Act was amended after accession to the EU.This piece of legislation presents an interesting combination of normative principles and soft law indications, which are meant to promote equality, particularly in working life.The 'equality pools', derived from nationwide agreements on income policy, favour wage increases for low-wages groups. Such increases are paid to both women and men, although the number of poorly paid women is higher149.

In equality law, Sweden went beyond EU law, providing the duty to take active measures in the 1999 Ethnic Discrimination Act, not as wide as that enshrined in the 2000 Equality Act, but extremely important also in comparative terms. The notion of work of equal value was introduced and the employer's obligation to promote equal opportunities with regard to wages was further specified150.

In Denmark, proposals to expand the Equal Pay Act were presented in 2001 by the then Social Democratic government, but then stopped in Parliament by the Conservative/Liberal government. Rather than setting an obligation for employers to draw up statistics, as in the previous proposal, the task to identify situations of wage discrimination was assigned to the Employment Ministry151.

In Germany, the Civil Code has been repeatedly amended following rulings of the European Court of Justice. Sanctions are now very effective for discrimination in recruitment procedures on the ground of gender152.

Finally, Spain should be mentioned. The latest intervention in anti-discrimination law is framed in a ' Ley-omnibus ', approved on 30 December 2003 and refers to the EU Directives. Given the unusual choice of the legislature, under pressure at the end of the year and therefore forced to mix together very different legal measures, evolution in this case will need to be tested in the future.

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Anti-discrimination law is a field of consolidated tradition in EU law and proves how a slow process of adaptation piloted the introduction - and in other cases the specification - of fundamental constitutional rights. In this field, as the recent 2000 Directives confirm, there is an ongoing open process of evolution which is proceeding very quickly. It still has to prove its potential in transforming national regulation as well as in modifying legal culture.

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[134] A.-M. Slaughter,A. Stone Sweet, J.Weiler, The European Courts and National Courts, 1998, Hart Publishing, Oxford.

[135] Corte Costituzionale 41/2000.

[136] For example in J. Malmberg (ed.), Effective enforcement of EC labour law, 2003, Aspen Publishers, Uppsala. See also K. Kilpatrick, 'Community or Communities of Courts in European Integration? Sex Equality Dialogues Between UK Courts and the ECJ' (1998), 4 European Law Journal 121.

[137] A recent attempt to undergo comparative labour law is made by S. Sciarra, P. Davies, M. Freedland (eds.), Employment policy and the regulation of part-time work in the European Union. A comparative analysis, CUP, forthcoming.

[138] For an example see C. Kilpatrick,T. Novitz, P. Skidmore (eds.), The Future of Remedies in Europe, 2000, Hart Publishing, Oxford.

[139] This result emerges from a research on preliminary references conducted in several EU countries. See S. Sciarra (ed.), Labour Law in the Courts. National Courts and the European Court of Justice, 2001, Hart Publishing, Oxford.

[140] In France - to mention a very recent example - a group of experts, the Commission de Virville, has been asked to put forward proposals for simplification of existing law.

[141] This idea is clearly presented by S.Yannakourou in the Greek report, as an explanation of a national pattern in the evolution of labour law, but also stands as a comparative observation, drawing on other country reports.

[142] To this path-breaking decision very controversial debates started in both Germany and Italy, leading in the end to the abolition of the ban on night-work for women.

[143] The European Company Regulation (2157/2001) and Directive (2001/86) were unlocked following the controversy raised by Renault's decision. Above all, it created the conditions for the adoption of the so-called 'National Information and Consultation Directive (2002/14) and the launching of a European debate on corporate restructuring (a first consultation of the European social partners was launched in January 2003).

[144] The Greek report, quotes difficulties with the concrete enforcement of working time regulation.

[145] S. Deakin and G. S. Morris, Labour Law, 2001, 3rd edition, Butterworths, London, p. 49. See also K. Kilpatrick, 'Has New Labour Reconfigured Employment Legislation?' (2003), Industrial Law Journal Vol. 32, Issue 3, p. 141 who quotes the Better Regulation Taskforce and its evaluation that 40 % of UK employment law derives from EU requirements.

[146] See the Greek report, Chapter III, section 1.1.4 and Chapter IV, section 1.1.

[147] Decrees 9 July 2003, n. 215 and 216.

[148] D. Gottardi,'Dalle discriminazioni di genere alle discriminazioni doppie o sovrapposte: le transizioni', (2003) Giornale di Diritto del lavoro e di relazioni industriali, p. 447.

[149] Finnish Report, section 4.1.

[150] Swedish Report, section 4.1.

[151] Danish Report, section 4.1.

[152] For a comparative study on the role of courts in equality cases see C. Kilpatrick, in S. Sciarra (ed.), Labour law in the courts. National Judges and the European Court of Justice, 2001, Hart Publishing, Oxford.