EU EMPLOYMENT LAW

This book traces the evolution of European Union employment law

and social policy from its essentially economic origins in the Treaty of
Rome through to the emerging themes post-Amsterdam: co-ordination
of national employment policies, modernisation of social laws and
combating discrimination. Each stage of development of Community
employment law and social policy is analysed in depth to give a sense
of perspective to this fast changing field. As the European Union seeks
to meet the challenges of globalisation the need to develop social policy
as a productive factor has come to the fore. The author explains how
the social, economic and employment imperatives of European integration have always been intertwined and how the emergence of
Community employment law from its hitherto twilight existence is
best understood through an examination of consistent strands of policy
development.

EU Employment Law
From Rome to Amsterdam
and Beyond

JEFF KENNER

OXFORD AND PORTLAND, OREGON

2003

Published in North America (US and Canada) by

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Jeffrey Kenner 2003
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In memory of my mother and father,

Lily and Len Kenner

Preface
My aim in writing this book is to offer a contextual and multi-dimensional
analysis of European Union employment law. The idea for the book arose
out of a desire to explain the law as seen and understood through the prism
of its constant evolutionary development over a fifty-year period. By adopting this methodology I hope to offer fresh insights and to challenge commonly held assumptions about the present state of the law and its future
direction. It has also enabled me to approach EU employment law and
broad themes of social policy unencumbered by the conventional requirement to strictly categorise and isolate each area of development. In this way
it has been possible, in a thematic fashion, to explore the interconnectedness of law and policy and identify hierarchies of norms in fields as diverse
as equalities, employment protection, health and safety and employment
promotion.
In particular I will seek to show how the economic and social imperatives of European integration have always been intertwined and how the
emergence of Community employment law from its hitherto twilight existence is best understood through an examination of consistent strands of
policy development. It is hoped that this approach will be attractive not
only for legal scholars but also for students of other disciplines who wish
to engage with the law in this area.
In the long process of writing this book I have been indebted to many
people who kindly offered me advice and support. I would like to especially
thank Tamara Hervey and Joanne Scott who generously gave their time to
read draft chapters and provide helpful comments and suggestions. I am
very grateful to Richard Hart for immediately grasping the idea behind this
book and being prepared to run with it. All of the team at Hart Publishing
have been most understanding and supportive throughout this project. I
would also like to thank my colleagues at the University of Nottingham
and the University of Leicester for their constant encouragement. Finally, I
would like to record my gratitude, as ever, to Jacqueline Abbott for her
patience, constructive criticism and unstinting support.
Jeff Kenner
Nottingham
October 2002

Table of Contents
Table of Cases
Table of Legislation
Table of Treaties and Other Instruments
1 The Emergence of the Social Dimension
I
II

Introduction
Social Policy in the Treaty of Rome
(1) The Ohlin and Spaak Reports
(2) The First Social Chapter
(3) Substantive Obstacles to the Integration of Social Laws

III

Social Policy in the Wider Treaty Context

2 The Communitys New Deal

I
II
III
IV
V

A Human Face for the Community: The First Social

Action Programme
Partial Harmonisation and Flexible Implementation of the
Employment Protection Directives
Equal Pay and Equal TreatmentThe Pivotal Role of the
Court of Justice
Harmonisation of Technical StandardsThe First
Framework Directive on Health and Safety at Work
The Advent of Social Dialogue and Employee Involvement
in UndertakingsDemocratisation or Bargaining?
(1) The Advent of Social Dialogue
(2) Information, Consultation and Participation of Workers
in Undertakings

3 The Single European ActCatalyst for Action I

I
II
III

Introduction
The Social Dimension of the Internal Market
The Single European ActEstablishing the
Internal Market
(1) Introduction
(2) The Internal Market and Social Policy

IV

Health, Safety and the Working Environment

(1) The Excessively Subtle Wording of Article 118a EEC

xv
xxvii
xliii
1
1
2
2
6
10
12
23
23
26
42
55
59
60
62
71
71
73
78
78
79
91
91

Contents
(2) The Scope of the ObligationA Question Of Ergonomics?
(3) A New Approach to Minimum Standards Harmonisation?

Article 118b EECSocial Dialogue: A Means to

an End?

4 The Community Social CharterCatalyst for Action II

I
II

Introduction: One or Two Charters?

The Evolution and Legal Scope of the Community
Social Charter
(1) Citizens Rights or Workers Rights?
(2) The Social Charter, Soft Law and Subsidiarity

III

The Charters Fundamental Social Rights

(1) Fundamental Social Rights of Workers
Community Sources
(2) Fundamental Social Rights of WorkersInternational
Law Sources
(3) Fundamental Social Rights of Persons

5 Community Social Legislation in the Era of the

Social Charter
I
II

A Solid Base of Legislative Achievements?

Taking Full Advantage of Article 118a EEC?
(1) Pregnancy and Maternity
(2) Working Time
(3) Young Workers

III

Improving Living and Working Conditions

(1) Market Functioning under Article 100 EEC
(2) Employee Information (Contract or Employment
Relationship)

IV

Soft LawFilling the Gaps?

(1) Introduction
(2) Commission Recommendation and Code of Practice on
Sexual Harassment
(3) Commission Opinion on an Equitable Wage

Conclusion

6 The Treaty on European Union: Transition or

Transformation?
I
II
III
IV
V

Introduction
The Next Stage of the Process
Eleven March Ahead
The Treaty Framework
The Principle of SubsidiarityPlus a Change, Plus
cest la Mme Chose?

95
99
105
109
109
115
115
125
136
137
142
149

153
153
154
155
168
181
186
186
188
200
200
201
209
212

215
215
217
219
228
230

Contents xi
VI

The Agreement on Social PolicyA Way Out of

the Impasse?
VII Articles 3 and 4Representativeness and Democratic
LegitimacyTwo Sides Of The Same Coin?
(1) The Social Partners Move to Centre Stage
(2) Reinventing Europes Social Policy ArchitectureA
Question of Democratic Legitimacy
(3) RepresentativenessTesting the Criteria

VIII The Framework AgreementsA Qualitative Assessment

(1) Parental Leave
(2) Part-Time Work
(3) Fixed-Term Work

IX

Conclusion

7 From Maastricht to AmsterdamReshaping the European

Social Model
I
II

Searching for Europes Social Soul

Promoting Employment
(1)
(2)
(3)
(4)
(5)

III
IV

Reorganising Work
Combating Social Exclusion
(1)
(2)
(3)
(4)
(5)
(6)
(7)

V
VI

Growth, Competitiveness, Employment

The Green Paper on European Social Policy
The White Paper on European Social Policy
The Council Resolution on Social Policy
The Essen Process

Reconceptualising Social Solidarity

The Communitys Structural Funds
Expanding Community Action
Social Protection
Integrating the Disabled and Older People
Tackling Racism and Xenophobia
The Participatory Approach to Combating Exclusion

Mainstreaming Gender Equality

Consolidation, Compliance and Enforcement of
Community Social Legislation
(1)
(2)
(3)
(4)
(5)

Introduction
Consolidation and Legislative Review
Employment Protection
Sex Equality
Enforcement of Community Social Legislation

8 The Treaty of AmsterdamAn Overview

I
II
III

A Modest Achievement?
Articles 136145 ECRe-unifying Social Policy?
Articles 125130 ECEmployment as a Matter of
Common Concern

235
246
246
249
256
266
267
275
285
291
293
293
295
295
301
303
305
306
310
316
316
318
319
320
321
323
326
328
334
334
335
338
352
363
375
375
382
388

xii

Contents

9 Combating DiscriminationNew Concepts, New Laws,

New Hierarchies?
I
II

Article 13 ECAn Empty Vessel?

The Anti-Discrimination PackageAn Analysis
(1)
(2)
(3)
(4)
(5)
(6)

Scope of the Article 13 EC Directives

Grounds of Discrimination
Concepts of Discrimination
Reasonable Accommodation for Disabled Persons
General Derogations to the Principle of Equal Treatment
Specific Derogations in the Framework Employment
Directive: Religion or Belief, Age, Disability
(7) Positive Action
(8) Remedies, Enforcement, Compliance and Sanctions
(9) The Anti-Discrimination Action Programme

III

The Framework Strategy on Gender Equality: A Way

Forward?

10 Reconceptualising Sex Equality and Market Integration in

the Court of Justice
I
II
III
IV

Introduction
Sex Equality as a Fundamental RightThe Limits of
the Law
The Court of Justice and Positive ActionTowards Full
Equality in Practice?
The Aims of Article 141 ECFrom the Economic to the
Social?

11 The European Employment StrategyReinventing Social

Policy Governance?
I
II
III

416
418
419
423
424
429
429
430
442
458
467

467
469
(1) The Luxembourg Process
469
(2) The Lisbon Process and the Open Method of Co-ordination 482
The Social Policy AgendaFrom Economic to Social,
From Social to Economic?
491
(1) Quality, Quality, Quality
491
The Same Resolve to Converge?

12 The EU Charter of Fundamental RightsTowards a

European Social Constitution?
I
II

393
400
400
404
406
411
413

Introduction
The European Employment Strategy Comes of Age

(2) Delivering the Social Policy AgendaHarmonisation,

Co-ordination, Co-operation, Partnership

IV

393

Introduction
The Origins of the Charter

498
505
511
511
512

Contents xiii
III
IV
V

The Charters Social Rights and PrinciplesText

and Structure
The Legal Scope of the Charter
Conclusion

Bibliography
Index

517
528
543
547
573

Table of Cases
EUROPEAN COURT OF JUSTICE AND COURT OF FIRST
INSTANCE OF THE EUROPEAN COMMUNITIES
AGS Assedic Pas-de-Calais v Dumon and Froment (Case C235/95) [1998]
ECR I4531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
Abdoulaye v Renault (Case C218/98) [1999] ECR I5723 . . . . . . . . . . . 158, 525
Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische
Industrie (Case 135/83) [1985] ECR 469 . . . . . . . . . . . . . . . . . . . . . . . . 34, 351
Abrahamsson and Anderson v Fogelqvist (Case C407/98) [2000]
ECR I5539 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388, 419, 45557
Airola v Commission (Case 21/74) [1975] ECR 221 . . . . . . . . . . . . . . . . . . . . . 47
Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie
(Case C67/96) [1999] ECR I5751 . . . . . . . 1819, 21, 144, 147, 385, 461, 536
Allen and others v Amalgamated Construction Co Ltd (Case C234/98)
[1999] ECR I8643 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347, 34950
Amministrazione delle Finanze dello Stato v San Giorgio (Case 199/82)
[1983] ECR 3595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77)
[1978] ECR 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 367, 371
Amylum v Council and Commission (Cases 116 and 124/77) [1979]
ECR 3497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Angonese v Cassa di Risparmio di Bolzano SpA (Case C281/98) [2000]
ECR I4139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530
Annibaldi v Sindaco del Comune di Guidonia & Presidente Regione Lazio
(Case C309/96) [1997] ECR I7493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535
Antonissen case, see R v The Immigration Appeal Tribunal, ex parte
Antonissen (Case C292/89)
Awoyemi (Case C230/97) [1998] ECR I6781 . . . . . . . . . . . . . . . . . . . . . . . . 403
BECTU case, see R v Secretary of State for Trade and Industry, ex parte
Broadcasting, Entertainment, Cinematographic and Theatre Union
(BECTU) (Case C173/99)
Badeck and others v Hessischer Ministerprsident (Case C158/97)
[2000] ECR I1875 . . . . . . . . . . . . . . . . . . . . 388, 419, 451, 45457, 464, 525
Barber v GRE (Case C262/88) [1990] ECR
I1889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4950, 55, 35354, 356, 459, 461
Becker v FZA Mnster-Innenstadt (Case 8/81) [1982] ECR 53 . . . . . . . . . . . . . . 52
Becu (Case C22/98) [1999] ECR I5665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Beentjes v Minister van Landbouw en Visserij (Case 31/87) [1988]
ECR 4635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Berg and Busschers v Besselsen (Cases 144145/87) [1988]
ECR I2559 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bettray v Staatssecretaris van Justitie (Case 344/87) [1989] ECR 1637 . . . . . . . 121
Bickel & Franz (Case C274/96) [1998] ECR I7637 . . . . . . . . . . . . . . . . . . . 523

xvi Table of Cases

Bilka Kaufhaus v Weber von Hartz (Case 170/84) [1986]
ECR 1607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 49, 283, 354, 357, 361, 459
Birds Eye Walls Ltd v Roberts (Case C132/92) [1993] ECR I5579 . . . . . 355, 360
Blaizot v Universit de Lige and others (Case 24/86) [1988]
ECR 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402, 531, 544
Booker Aquaculture Ltd & Hydro Seafood GSP Ltd v The Scottish
Ministers (Case C20/00) [2002] ECR (nyr), opinion of 20 Sept 2001 . . . . . . 542
Borelli v Commission (Case C97/91) [1992] ECR I6313 . . . . . . . . . . . . . . . . 528
Bork v Foreiningen Arbejdsledere i Danmark (Case 101/87) [1988]
ECR 3057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Bowden and others v Tuffnells Parcels Express Ltd (Case C133/00)
[2001] ECR I7031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 179803, 541
Boyle and Others v Equal Opportunities Commission (Case C411/96)
[1998] ECR I6041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 166
Brasserie du Pcheur SA v Federal Republic of Germany (Case C46/93)
[1996] ECR I1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367, 370
Brentjens Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor
de Handel in Bouwmaterialen (Cases C115117/97) [1999]
ECR I6025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 385
Brinkmann Tabakfabriken GmbH v Skatteministeriet (Case C319/96)
[1998] ECR I5255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Brown v Rentokil Ltd (Case C394/96) [1998] ECR I4185 . . . . . . . . . . 158, 160
Brown v Secretary of State for Scotland (Case 197/86) [1988] ECR 3205 . . . . . 121
Burstein v Freistaat Bayern (Case C127/97) [1998] ECR I6005 . . . . . . . . . . . . 90
CCE de Vittel and Others v Commission (Case T12/93) [1995]
ECR II1247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
CFDT v Council (Case 66/76) [1977] ECR 305 . . . . . . . . . . . . . . . . . . . . . . . 256
CNAVTS v Thubault (Case C136/95) [1998] ECR I2011 . . . . . . . . . . . . . . . 161
Cassis de Dijon case, see Rewe Zentrale v Bundesmonopolverwaltung
fr Branntwein (Case 120/78)
Castelli v ONPTS (Case 261/83) [1984] ECR 3199 . . . . . . . . . . . . . . . . . . . . . 402
Christini v SNCF (Case 32/75) [1975] ECR 1085 . . . . . . . . . . . . . . . 402, 531, 531
Cinthque v Fdration Nationale des Cinmas
Franais (Cases C60 and 61/84) [1985] ECR 2605 . . . . . . . . . . . . . . . . . . . 530
Collino and Chiappero v Telecom Italia SpA (Case C343/98) [2000]
ECR I6659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 138, 350
Coloroll Pension Trustees Ltd v Russell (Case C200/91) [1994]
ECR I4389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353, 35556
Comet v Produktschap voor Siergewassen (Case 45/76) [1976]
ECR 2043 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 370
Commission v Belgium (Case 102/79) [1980] ECR 1473 . . . . . . . . . . . . . . . . . . 41
Commission v Belgium (Case 215/83) [1985] ECR 1039 . . . . . . . . . . . . . . . . . . 39
Commission v Belgium (Case C229/89) [1991] ECR I2205 . . . . . . . . . . . . . . 462
Commission v Belgium (Case C173/91) [1993] ECR I673 . . . . . . . . . . . . . . . 353
Commission v Council (ERTA) (Case 22/70) [1971] ECR 263 . . . . . . . . . 202, 226
Commission v Council (Case 45/86) [1987] ECR 1493 . . . . . . . . . . . . . . . . . . . 88
Commission v Council (Titanium Dioxide) (Case C300/89) [1991]
ECR I2867 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 88, 255
Commission v Denmark (Case 143/83) [1985] ECR 427 . . . . . . . . . . . . . . 41, 240
Commission v France (Case 312/86) [1988] ECR 6315 . . . . . . . . . . . . . . . . . . 446

Table of Cases xvii

Commission v France (Case 318/86) [1988] ECR 3559 . . . . . . . . . . . . . . 245, 357
Commission v France (Case C45/99) [2000] ECR I3615 . . . . . . . . . . . . . . . . 184
Commission v France (Case C46/99) [2000] ECR I4379 . . . . . . . . . . . . . . . . 172
Commission v France (Case C197/96) [1997] ECR I1489 . . . . . . . . . . . . . . . 159
Commission v Germany (Case 248/83) [1985] ECR 1459 . . . . . . . . . . . . . . . . . 53
Commission v Greece (Case C305/87) [1989] ECR 1461 . . . . . . . . . . . . . . . . 403
Commission v Greece (Case C53/88) [1990] ECR I3931 . . . . . . . . . . . . . . . . 33
Commission v Greece (Case C387/97) [2000] ECR I5047 . . . . . . . . . . . . . . . 365
Commission v Italy (Case 22/87) [1989] ECR 143 . . . . . . . . . . . . . . . . . . . . . 366
Commission v Italy (Case 91/81) [1982] ECR 2133 . . . . . . . . . . . . . . . . . . . . . 41
Commission v Italy (Case 235/84) [1986] ECR 2291 . . . . . . . . . . . . . . . . . . . . 41
Commission v Italy (Case 22/87) [1989] ECR 143 . . . . . . . . . . . . . . . . . . . . . . 30
Commission v Italy (Case C207/96) [1997] ECR I6869 . . . . . . . . . . . . . . . . 159
Commission v Italy (Case C386/98) [2000] ECR I1277 . . . . . . . . . . . . . . . . 172
Commission v Luxembourg (Case 58/81) [1982] ECR 2175 . . . . . . . . . . . . . . . 49
Commission v Luxembourg (Case C111/91) [1993] ECR I817 . . . . . . . . . . . 402
Commission v Luxembourg (Case C47/99) [1999] ECR I8999 . . . . . . . . . . . 184
Commission v Luxembourg and Belgium (Cases 90 and 91/63) [1964]
ECR 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Commission v United Kingdom (Case 61/81) [1982] ECR 2601 . . . . . . . . . . . . . 45
Commission v United Kingdom (Case C146/89) [1991] ECR I3533 . . . . . . . . 178
Commission v United Kingdom (Case C382/92) [1994]
ECR I2435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 67, 104, 371
Commission v United Kingdom (Case C383/92) [1994]
ECR I2479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 37, 40, 67, 104, 371
Coote v Granada (Case C185/97) [1998] ECR I5199 . . . . . . 371, 411, 422, 440
Costa v ENEL (Case 6/64) [1964] ECR 585 . . . . . . . . . . . . . . . . . . . 44, 127, 440
Council v Hautala (Case C353/99P) [2001] ECR (nyr), opinion of 10 July
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542
D and Sweden v Council (Case T264/97) [1999] ECRSC IA 1
and II1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 415
D and Sweden v Council (Cases C122/99P and C125/99P) [2001]
ECR I4139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 415, 442, 535, 538
DEI v Evrenopoulos (Case C147/95) [1997] ECR I2057 . . . . . . . . . . . . . . . 354
dUrso v Ercole Marelli Elettromeccanica Generale (Case C362/89) [1991]
ECR I4105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Dansk Industri (Royal Copenhagen) v Specialarbejderforbundet i Danmark
(Case C400/93) [1995] ECR I1275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357
Dansk Metalarbejderforbund v Nielsen & Son Maskin-fabrik A/S
(Case 248/83) [1985] ECR 553 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 339
Dassonville (Case 8/74) [1974] ECR 837 . . . . . . . . . . . . . . . . . . . . . . . . . . 1415
De Weerd and others (Case C343/92) [1994] ECR I571 . . . . . . . . . . . . . . . . 462
Decker v Caisse de Maladie des Employs Privs (Case C120/95) [1998]
ECR I1831 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 531
Defrenne v Belgian State (Case 80/70) [1971] ECR 445 . . . . . . . . . . . . . . . . . . . 9
Defrenne v Sabena II (Case 43/75) [1976]
ECR 455 . . . . . . . 9, 46, 4850, 54, 86, 94, 203, 35354, 356, 386, 45861, 530
Defrenne v Sabena III (Case 149/77) [1978]
ECR 1365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 47, 329, 433, 45960, 544
Defreyn v Sabena SA (Case C166/99) [2000] ECR I6155 . . . . . . . . . . . . . . . 353

xviii

Table of Cases

Dekker v Stichting Vormingscentrum voor Jong Volwassenen (Case C177/88)

[1990] ECR I3941 . . . . . . . . . . . . . . . . . . . . . . . . . . . 158, 164, 359, 407, 434
Demirel v Stadt Schwbisch Gmnd (Case 12/86) [1987]
ECR 3719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 530
Dthier Equipment v Dassy (Case C319/94) [1998] ECR I1061 . . . . . . . . . . 351
Deutsche Post AG v Sievers and Schrage (Cases 270271/97) [2000]
ECR I929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460, 463
Deutsche Shell AG v Hauptzollamt Hamburg-Hamburg (Case C188/91)
[1993] ECR I363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Deutsche Telekom AG v Schrder (Case C50/96) [2000]
ECR I743 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 354, 356, 46064, 525
Deutsche Telekom AG v Vick and Conze (Cases C234235/96) [2000]
ECR I799 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Dietz v Stichting Thuiszorg Rotterdam (Case C435/93) [1996]
ECR I5223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Dillenkofer and others v Federal Republic of Germany (Cases C178179
and 188190/94) [1996] ECR I4845 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Dinecke Algera v Common Assembly of the ECSC (Cases 7/56 and 37/57)
[19578] ECR 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Don v Mantero (Case 13/76) [1976] ECR 1333 . . . . . . . . . . . . . . . . . . . . 37, 121
Dori (Faccini) v Recreb Srl (Case C91/92) [1994] ECR I3325 . . . . . . . . . 53, 369
Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin
mbH (Case C54/96) [1997] ECR I4961 . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Draehmpaehl v Urania Immobilienservice (Case C180/95) [1997]
ECR I2195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
Duphar (Case 238/82) [1984] ECR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 488
ERT v Pliroforissis & Kouvelas (Case C260/89) [1991]
ECR I2925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384, 530, 535
ERTA case, see Commission v Council (Case 22/70)
Emmott v Minister for Social Welfare and another (Case C208/90) [1991]
ECR I-4269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 37071, 373
Enderby v Frenchay HA (Case C127/92) [1993]
ECR I5535 . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 283, 35758, 362, 420, 459
European Parliament v Council (Cases C65/90 and C295/90) [1992]
ECR I4593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Europices v Sanders and Automotive Industries Holding Company SA
(Case C399/96) [1998] ECR I6965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Everson and Barrass v Secretary of State for Trade and Industry and Bell
Lines Ltd (Case C198/98) [1999] ECR I8903 . . . . . . . . . . . . . . . . . . . . . . 342
Factortame cases, see R v Secretary of State for Transport, ex parte
Factortame Ltd (Case C213/89) and R v Secretary of State for Transport,
ex parte Factortame Ltd (Case C48/93)
Fdration Franaise des Socits dAssurances (FFSA) (Case C244/94) [1995]
ECR I4013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1819
Federolio v Commission (Case T122/96) [1997] ECR II1559 . . . . . . . . . . . . 260
Finalerte Sociedade de Construo Civil Lda and others v Urlaubs- und
Lohnausgleichskasse der Bauwirtschaft (Cases C49/98 and C7071/98)
[2001] ECR I7831 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Forcheri v Belgian State (Case 152/82) [1983] ECR 2323 . . . . . . . . . . . . . 381, 531

Table of Cases xix

Foreningen af Arbejdsledere i Danmark v Daddys Dance Hall A/S
(Case 324/86) [1988] ECR 739 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 37
Foreningen af Arbejdsledere i Danmark v Danmols Inventar (Case 105/84)
[1985] ECR 2639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Foster v British Gas (Case C188/89) [1990] ECR I3313 . . . . . . . . . . . . . . . . . 54
France v Commission (Case C41/93) [1994] ECR I1829 . . . . . . . . . . . . . . . . . 90
Francovich and Bonifaci v Italy (Cases C6/90 and C9/90) [1991]
ECR I5357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 55, 197, 36668, 370
Francovich II v Italy (Case C479/93) [1995] ECR I3843 . . . . . . . . . . . . . . . 340
Frecassetti v Amministrazione delle Finanze dello Stato (Case 113/75) [1976]
ECR 983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Freers and Speckmann v Deutsch Bundespost (Case C278/93) [1996]
ECR I1165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
Garland v British Rail Engineering (Case 12/81) [1982] ECR 359 . . . . . . . . . 4950
Germany v Council (Case C426/93) [1995] ECR I3723 . . . . . . . . . . . . . . . . . 89
Germany v European Parliament and Council (Tobacco Advertising)
(Case C376/98) [2000] ECR I8419 . . . . . . . 8587, 89, 94, 146, 187, 385, 534
Germany and others v Commission (Cases C281/85, C283/85 and C287/85)
[1987] ECR 3203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gerster v Freiestaat Bayern (Case C1/95) [1997]
ECR I5253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 361, 457, 525
Gibraltar v Council (Case C298/89) [1993] ECR I3605 . . . . . . . . . . . . . . . . 260
Gillespie and others v NHSSB and others (Case C342/93) [1996]
ECR I475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 435
Grad v Finanzamt Traunstein (Case 9/70) [1970] ECR 825 . . . . . . . . . . . . . . . . 52
Grant v South-West Trains (Case C249/96) [1998] ECR I621 . . . . 408, 415, 435,
43842, 464, 53537
Grau Hupka v Stadtgemeinde Bremen (Case C297/93) [1994]
ECR I5535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457
Gravier v City of Lige (Case 293/83) [1985] ECR 563 . . . . . . . . . . . . . . . . . . 531
Grimaldi v Fonds des Maladies Professionelles (Case C322/88) [1989]
ECR 4407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
HNL v Council and Commission (Cases 83 and 94/76 and 4, 15 and 40/77)
[1978] ECR 1209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36869
Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb/Opf EV
(Case C421/92) [1994] ECR I1657 . . . . . . . . . . . . . . . . . . . . . . . . . 158, 164
Hallouzi-Choho (Case C126/95) [1996] ECR I4807 . . . . . . . . . . . . . . . . . . . 122
Handels- og Kontorfunktionrernes Forbund i Danmark v Danfoss (Case
109/88) [1989] ECR 3199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357, 420
Handels- og Kontorfunktionrernes Forbund i Danmark (Hertz) v Dansk
Arbejdsgiverforening (Case C179/88) [1990] ECR I3979 . . . . . . . . . . 164, 360
Hauer v Land Rheinland-Pfalz (Case 44/79) [1979]
ECR 3727 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 523, 535
Henke v Gemeinde Schierke and Verwaltungsgemeinschaft Brocken (Case
C298/94) [1996] ECR I4989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3738, 350
Hidalgo (Sanchez) ea v Asociacion de Servicios Aser and Sociedad Cooperativa
Minerva (Case C173/96) [1998] ECR I8237 . . . . . . . . . . . . . . . . . . . . 34950
Hill and Stapleton v Revenue Commissioners (Case C243/95) [1998]
ECR I3739 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362

xx Table of Cases
Hoekstra (ne Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel
en Ambachten (Case 75/63) [1964] ECR 177 . . . . . . . . . . . . . . . . . . . . . . . 121
Hofmann v Barmer Ersatzkasse (Case 184/83) [1984] ECR 3047 . . . . . . . 161, 457
Hfner and Elser v Macrotron (Case C41/90) [1991] ECR I1979 . . . . . . . . . . 17
Hy Pedersen v Kvickly Skive (Case C66/96) [1998] ECR I7327 . . . . . . 162, 166
Humblet v Belgium (Case 6/60) [1960] ECR 559 . . . . . . . . . . . . . . . . . . . . . . 367
Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide
(Case 11/70) [1970] ECR 1125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 534
Jenkins v Kingsgate (Clothing Productions) Ltd (Case 96/80) [1981]
ECR 911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Jimnez Melgar v Ayuntamiento de Los Barrios (Case C438/99) [2001]
ECR I6915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158, 16566, 288
Johnson v Chief Adjudication Officer II (Case C410/92) [1994]
ECR I5483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37071, 373
Johnston v Chief Constable of the RUC (Case 222/84) [1986]
ECR 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 372, 413, 528, 535
Jrgensen v Foreningen af Speciallger (Case C226/98) [2000]
ECR I2447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360, 362, 46264
Kachelmann v Bankhaus Hermann Lampe KG (Case C322/98) [2000]
ECR I7505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362, 462, 464
Kalanke v Freie Hansestadt Bremen (Case C450/93) [1995]
ECR I3051 . . . . . . . . . . . . . 245, 387, 444, 44750, 45253, 455, 45758, 464
Kampelmann and Others v Landschaftsverband Westfalen-Lippe, Stadtwerke
Witten GmbH v Schade, and Haseley v Stadwerke Altena GmbH (Cases
C253258/96) [1997] ECR I6907 . . . . . . . . . . . . . . . . . . . . 54, 194, 197, 199
Katsikas v Konstatinidis (Cases C132/91 and C138139/91) [1992]
ECR I6577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 522
Keck and Mithouard (Joined Cases C267268/91) [1993] ECR I6097 . . . . . . . 15
Kempf v Staatssecretaris van Justitie (Case 139/85) [1986] ECR 1741 . . . . . . . . 121
Kirsammer-Hack v Sidal (Case C189/91) [1993] ECR I6185 . . . . . . . . . . . . . . 17
Kohll v Union des Caisses de Maladie (Case C158/96) [1998]
ECR I1931 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 531
Konstantinidis v Stadt Altensteig, Standesamt, & Landratsamt Calw,
Ordnungsamt (Case C168/91) [1993] ECR I1191 . . . . . . . . . . . . . . . . . . . 535
Kording v Senator fr Finanz (Case C100/95) [1997]
ECR I5289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 361
Kowalska v Frei und Hansestadt Hamburg (Case 33/89) [1989]
ECR I2591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4950
Kreil v Bundesrepublik Deutschland (Case C285/98) [2000]
ECR I69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 414
Kremzow v Austria (Case C299/95) [1997] ECR I2629 . . . . . . . . . . . . . . . . 535
Krger v Kreiskrankenhaus Ebersberg (Case C281/97) [1999]
ECR I5127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362, 457
Kuratorium fr Dialyse und Nierentransplantation eV v Lewark (Case
C457/93) [1996] ECR I243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 362
Lair v Universitt Hannover (Case 39/86) [1988] ECR 3161 . . . . . . . . . . . . . . 121
Lange v Georg Schnemann GmbH (Case C350/99) [2001]
ECR I1061 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 19899
Larsson v Ftex Supermarked (Case C400/95) [1997]
ECR I2757 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

Table of Cases xxi

Lawrie-Blum v Land Baden-Wrttemberg (Case 66/85) [1986]
ECR 2121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 121
Leifer and others (Case C83/94) [1995] ECR I3231 . . . . . . . . . . . . . . . . . . . . 53
Levez v TH Jennings (Harlow Pools) Ltd (Case C326/96) [1998]
ECR I7835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 370
Levin v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035 . . . . . . 13, 121
Lewen v Denda (Case C333/97) [1999] ECR I7243 . . . . . . . . . . . 163, 166, 273
Liefting and others v Directie van het Akademisch Ziekenhuis bij Universitiet
van Amsterdam (Case 23/83) [1984] ECR 3225 . . . . . . . . . . . . . . . . . . . . . . 50
Liikenne (Oy) Ab v Liskojrvi and Juntunen (Case C172/99) [2001]
ECR I745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Maatschappij Drijvende Bokken BV v Stichting Pensioenfonds voor de
Vervoer-en Havenbedrijven (Case C219/987) [1999] ECR I6121 . . . . . 18, 385
Magorrian and Cunningham v EHSSB and DHSS (Case C246/96) [1997]
ECR I7153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 354, 356, 371
Mahlburg v Land Mecklenburg-Vorpommern (Case C207/98) [2000]
ECR I549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158, 16364
Maison Singer (Case 44/65) [1965] ECR 965 . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Maizena v Council (Case 139/79) [1980] ECR 3393 . . . . . . . . . . . . . . . . . . . . 255
Marleasing SA v La Comercial Alimentation SA (Case C106/89) [1990]
ECR I4135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Marschall v Land Nordrhein-Westfalen (Case C409/95) [1997]
ECR I6363 . . . . . . . . . . . . . . . . . . . . 245, 38788, 419, 44753, 45557, 464
Marshall v Southampton and South-West Hampshire AHA I (Case 152/84)
[1986] ECR 723 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5354, 369
Marshall v Southampton and South-West Hampshire AHA II (Case C271/91)
[1993] ECR I4367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369, 37273, 423
Martnez Sala v Freistaat Bayern (Case C85/96) [1998]
ECR I2691 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38081, 402, 531
max.mobil Telekommunikation Service GmbH v Commission (Case T54/99)
[2002] ECR II (nyr), judgment of 30 Jan 2002 . . . . . . . . . . . . . . . . . . . . . . 540
Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz (Case
C444/93) [1995] ECR I4741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283, 362
Merci Convenzionali Porto di Genova v Siderurgica Gabrielli (Case C179/90)
[1991] ECR I5889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Merckx and Neuhuys v Ford Motors (Cases C171172/94) [1996]
ECR I1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 349
Micheletti v Delegacin del Gobierno en Cantabria (Case C369/90) [1992]
ECR I4239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Ministre Public v Even (Case 207/78) [1979] ECR 2019 . . . . . . . . . . . . . . . . 402
Ministre Public v Stoeckel (Case C345/89) [1991] ECR I4047 . . . . . . . . . . . 159
Molenbroek (Case C226/91) [1992] ECR I5943 . . . . . . . . . . . . . . . . . . . . . . 462
Moroni v Collo GmbH (Case C110/91) [1993] ECR I6591 . . . . . . . . . . . 35354
Mosbk v Lnmodtagernes Garantifond (Case C117/96) [1997]
ECR I5017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
Mulder v Council and Commission (Cases C104/89 and 37/90) [1992]
ECR I3061 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Mutsch (Case 137/84) [1985] ECR 2681 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
Neath v Hugh Steeper Ltd (Case C152/91) [1993] ECR I6935 . . . . . . . . . . . 356
Netherlands v Reed (Case 59/85) [1986] ECR 1283 . . . . . . . . . . . . . 122, 442, 536

xxii

Table of Cases

Nold v Commission (Case 4/73) [1974] ECR 491 . . . . . . . . . . . . . . . . . . . . . . 523

Nolte v Landesversicherungsanstalt Hannover (Case C317/93) [1995]
ECR I4625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283, 362
Ny Moelle Kro (Case 287/76) [1987] ECR 5465 . . . . . . . . . . . . . . . . . . . . . . . 347
OFlynn v Adjudication Officer (Case C237/94) [1996] ECR I2617 . . . . . . . . 407
Oebel (Case 155/80) [1981] ECR 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Onem v Kziber (Case C18/90) [1991] ECR I199 . . . . . . . . . . . . . . . . . . . . . 122
Opinion 1/91, re: EEA [1991] ECR 6079 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Opinion 2/94, re: ECHR [1996] ECR I1759 . . . . . . . . . . . . . . . 114, 439, 51415
P v S and Cornwall CC (Case C13/94) [1996]
ECR I2143 . . . . . . . . . . . . . . . . . . . . 47, 384, 397, 415, 421, 43031, 43537,
43942, 45960, 464, 521, 535
Palmisani v INPS (Case C261/95) [1997] ECR I4025 . . . . . . . . . . . . . . . 51, 371
Parliament v Council (Case C271/94) [1996] ECR I1705 . . . . . . . . . . . . . . . 101
Parti Ecologiste Les Verts v European Parliament (Case 294/83) [1986]
ECR 1339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Pavlov and others v Stichting Pensioenfonds Medische Specialisten (Cases
C180184/98) [2000] ECR I6451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Peterbroeck v Belgian State (Case 312/93) [1995] ECR I4599 . . . . . . . . . . . . . 370
Plaumann v Commission (Case 25/62) [1963] ECR 95 . . . . . . . . . . . . . . . . . . 260
Podesta v CRICA (Case C50/99) [2000] ECR I4039 . . . . . . . . . . . . . . . . . . 354
Portugaia Construes Lda (Case C164/99) [2002] ECR I (nyr), judgment of
24 Jan 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Poucet and Pistre v AGF and Concava (Cases C159160/91) [1993]
ECR I637 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Poverty 4 case, see United Kingdom v Commission (Case C106/96)
Preston v Wolverhampton Healthcare NHS Trust and others and Fletcher and
others v Midland Bank plc (Case C78/98) [2000] ECR I3201 . . . . . . . . . . 371
Pubblico Ministero v Ratti (Case 148/78) [1979] ECR 1629 . . . . . . . . . . . . . . . 52
Punto Casa and PPV (Joined Cases C69/93 and C258/93) [1994]
ECR I2355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
R v The Immigration Appeal Tribunal, ex parte Antonissen (Case C292/89)
[1991] ECR I745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
R v Secretary of State for Employment, ex parte Seymour-Smith and Perez
(Case C167/97) [1999] ECR I623 . . . . . . . . . . . . . . . . 49, 282, 360, 362, 407
R v Secretary of State for Social Security, ex parte Sutton (Case C66/95)
[1997] ECR I2163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
R v Secretary of State for Trade and Industry, ex parte Broadcasting,
Entertainment, Cinematographic and Theatre Union (BECTU) (Case
C173/99) [2001] ECR I4881 . . . . . . . . . . . . . . . . . 177, 17980, 241, 54041
R v Secretary of State for Transport, ex parte Factortame Ltd (Case C213/89)
[1990] ECR I2433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
R v Secretary of State for Transport, ex parte Factortame Ltd (Case C48/93)
[1996] ECR I1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367, 370
Racke v Hauptzollamt Mainz (Case 283/83) [1984] ECR 3791 . . . . . . . . . . . . 523
Rask and Christensen v ISS Kantinservice (Case C209/91) [1993]
ECR I5755 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 38, 34446
Razzouk and Beydoun v Commission (Cases 75/82 and 117/82) [1984]
ECR 1509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 433, 459

Table of Cases xxiii

Regeling v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid (Case
C125/97) [1998] ECR I4493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
Rewe v Landwirtschaftskammer Saarland (Case 33/76) [1976]
ECR 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 370
Rewe Zentrale v Bundesmonopolverwaltung fr Branntwein (Cassis de Dijon)
(Case 120/78) [1979] ECR 649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 75
Rinner Khn v FVW (Case 171/88) [1989] ECR 2743 . . . . . . . . . . . . . . . . . . . 49
Roquette Frres v Council (Case 138/79) [1980] ECR 3333 . . . . . . . . . . . . . . . 255
Royal Scholten Honig (Cases 103 and 145/77) [1978] ECR 2037 . . . . . . . . . . . 369
Rush Portuguesa Ltda v Office Nationale dImmigration (Case C113/89)
[1990] ECR 1417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rutili v Minister for the Interior (Case 36/75) [1975] ECR 1219 . . . . . . . . . . . 535
Rygaard v Str Mlle Akustik (Case C48/94) [1995]
ECR I2745 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 34546, 34950
SPUC v Grogan (Case C159/90) [1991] ECR I4685 . . . . . . . . . . . . . . . . . . . 441
Sabbatini v European Parliament (Case 20/71) [1972] ECR 345 . . . . . . . . . . . . . 47
Schmidt v Spar und Leihkasse (Case C392/92) [1994] ECR I1311 . . . 38, 34447
Schumacker v Finanzamt Kln-Altstadt (Case C279/93) [1995]
ECR I225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Sevince v Staatssecretaris van Justitie (Case C192/89) [1990]
ECR I3461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Seymour-Smith and Perez case, see R v Secretary of State for Employment, ex
parte Seymour-Smith and Perez (Case C167/97)
Sindicato de Mdicos de Asistencia Pblica (SIMAP) v Conselleria de Sanidad
y Consumo de la Generalidad Valenciana (Case C303/98) [2000]
ECR I7963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 180
Sirdar v The Army Board (Case C273/97) [1999] ECR I7403 . . . . . . . . . 53, 413
Sloman Neptun Schiffahrts v Seebetriebsrat Bodo Ziesemer der Sloman
Neptun Schiffahrts (Cases C7273/91) [1993] ECR I887 . . . . . . . . . . . . . 7, 17
Smith v Advel Systems (Case C408/92) [1994] ECR I4435 . . . . . . . . . . . . . . 356
Sodemare SA and others v Regione Lombardia (Case C70/95) [1997]
ECR I3395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Sofrimport v Commission (Case C152/88) [1990] ECR I2477 . . . . . . . . . . . . 369
Sophie Redmond Stichting (Dr) v Bartol (Case C29/91) [1992]
ECR I3189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Spain v Council (Case C350/92) [1995] ECR I1985 . . . . . . . . . . . . . . . . . . . . 86
Spano and others v Fiat Geotech and Fiat Hitachi (Case C472/93) [1995]
ECR I4321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Spijkers v Gebroeders Benedik Abbatoir CV (Case 24/85) [1986]
ECR 1119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 34446, 348
Stadt Lengerich v Helmig (Cases C399, 409 and 425/92 and C34, 50 and
78/93) [1994] ECR I5725 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361, 457
Steenhorst Neerings v Bestuur van de Bedrijfsvereniging voor
Detailhandel, Ambachten en Huisvrouwen (Case C338/91) [1993]
ECR I5475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37071, 373
Steymann v Staatssecretaris van Justitie (Case 196/87) [1988]
ECR 6159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Sutton case, see R v Secretary of State for Social Security, ex parte Sutton
(Case C66/95)

xxiv Table of Cases

Szen v Zehnacker Gebudereinigung GmbH Krankenhausservice (Case
C13/95) [1997] ECR I1259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 34550
Tele Danmark A/S v Handels- og Kontorfunktionrernes Forbund i Danmark
(Case C109/00) [2001] ECR I6993 . . . . . . . . . . . . . . . . . . . . . . 158, 164, 166
Temco Service Industries SA v Imzilyen and others (Case C51/00) [2002]
ECR (nyr), judgment of 24 Jan 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . 34950
Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassersen Schoonmaakbedrijf (Case C109/91) [1993]
ECR I4879 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 35354, 356, 459
Titanium Dioxide case, see Commission v Council (Case C300/89)
Tobacco Advertising case, see Germany v European Parliament and Council
(Case C376/98)
Torfaen BC v B & Q (Case 145/88) [1989] ECR 765 . . . . . . . . . . . . . . . . . . . . 14
UNECTEF v Heylens (Case 222/86) [1987] ECR 4097 . . . . . . . . . . . . . . . . . . 528
Union Europenne de lArtisan et des Petits et Moyennes Entreprises
(UEAPME) v Council (Case T135/96) [1998]
ECR II2335 . . . . . . . . . . . . . . . . . . . . . . . . . . 227, 251, 25556, 25960, 262
United Kingdom v Commission (Poverty 4) (Case C106/96) [1998]
ECR I2729 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
United Kingdom v Council (Working Time Directive) (Case C84/94) [1996]
ECR I5755 . . . . . . . . . . . . . . . . . 47, 8690, 92, 94, 9799, 101, 16869, 173,
178, 181, 184, 233, 24041, 311, 385, 527
Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v Amilcar Oliveira
Rocha and others (Cases C50/98, C5254/98 and C6869/98) [2001]
ECR I783 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Van de Woude v Stichting Beatrixoord (Case C222/98) [2000]
ECR I7111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Van den Akker v Stichting Shell Pensioenfonds (Case C28/93) [1994]
ECR I4527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Van Duyn v Home Office (Case 41/74) [1974] ECR 1337 . . . . . . . . . . . . . . . . 204
Van Gend en Loos v Nederlande Administratie der Belastingen (Case 26/62)
[1963] ECR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4344, 85, 127, 440
Van Schijndel and Van Veen v Stichting Pensioenfonds voor
Fysiotherapeuten (SPF) (Cases C430431/93) [1995]
ECR I4705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 51, 370
Vidal (Hernndez) SA v Gmez Prez and others (Joined Cases C127/96,
C229/96 and C74/97) [1998] ECR I8179 . . . . . . . . . . . . . . . . . . . . 348, 350
Von Colson and Kamann v Land Nordrhein Westfalen (Case 14/83) [1984]
ECR 1891 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 51, 37273
Vroege v NCIV Instituut voor Volkhuisvesting BV and Stichting Pensioenfonds
VCIV (Case C57/93) [1994] ECR I4541 . . . . . . . . . . . . . . . . . . . . . . . . . 355
Wachauf v Germany (Case 5/88) [1989] ECR 2609 . . . . . . . . . . . . . . . . . . . . . 535
Webb v EMO Air Cargo (Case C32/93) [1994]
ECR I3567 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158, 160, 16364, 360, 407
Working Time Directive case, see United Kingdom v Council (Case C84/94)
Worringham and Humphries v Lloyds Bank (Case 69/80) [1981]
ECR 767 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50
Yousfi v Belgium (Case C58/93) [1994] ECR I1353 . . . . . . . . . . . . . . . . . . . 122
Zaera v Instituto Nacional de la Seguridad Social (Case 126/86) [1987]
ECR 3697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table of Cases xxv

Ziemann (Horst) v Ziemann Sicherheit GmbH and Horst Bohn
Sicherheitsdienst (Case C247/96) [1998] ECR I8237 . . . . . . . . . . . . . . . . .

349

NATIONAL COURTS
France
Ministre de lintrieur v Cohn-Bendit [1980] CMLRev 543 . . . . . . . . . . . . . . .

43

United Kingdom
Bracebridge Engineering v Derby [1990] IRLR 3 . . . . . . . . . . . . . . . . . . . . . .
British Telecommunications v Williams [1997] IRLR 668 . . . . . . . . . . . . . . . .
CRE v Dutton [1989] IRLR 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Carmichael and another v National Power [2000] IRLR 43 . . . . . . . . . . . . . . .
Duke v GEC Reliance Ltd [1988] 1 AC 618 . . . . . . . . . . . . . . . . . . . . . . . . . .
Finnegan v Clowney Youth Training Programme [1990] 2 AC 407 . . . . . . . . . . .
Institu Cleaning v Heads [1994] IRLR 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Mandla v Dowell Lee [1983] 2 AC 548 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nethermere (St Neots) Ltd v Gardiner [1984] IRLR 240 . . . . . . . . . . . . . . . . .
Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 . . . . . . . . . . . .
Porcelli v Strathclyde Regional Council [1986] IRLR 134 . . . . . . . . . . . . . . . .
R v Secretary of State for Defence, ex parte Perkins [1997] IRLR 297 . . . . . . .
Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 . . . . . . . . . . . .
System Floors Ltd v Daniel [1981] IRLR 475 . . . . . . . . . . . . . . . . . . . . . . . . .
Wadman v Carpenter Farrer Partnership [1993] IRLR 373 . . . . . . . . . . . . . . .

208
207
405
124
54
54
208
405
125
36
208
433
207
194
207

USA
Brown v Pro Football 116 US 2116 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Fibreboard Products Corporation v NLRB 379 US 203 (1964) . . . . . . . . . . . . . 65
Ligett v Lee US 557 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
Linkletter v Walter 381 US 618 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Plessey v Ferguson 163 US 567 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
Robinson v Jacksonville Shipyards Inc 57 FEP Cases 971 (DC Fla 1991) . . . . . 207
United Mine Workers of America v Pennington 381 US 657 (1965) . . . . . . . . . . 20

INTERNATIONAL TRIBUNALS
European Commission and Court of Human Rights
Airey (1979) Series A no 32/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B v United Kingdom (App no 16106/90) 10 Feb 1990 . . . . . . . . . . . . . . .
C and LM v United Kingdom (App no 14753/89) 9 Oct 1989 . . . . . . . . . .
Cossey (1990) Series A no 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
da Silva Mouta v Portugal (App no 33290/96) (2001) 31 EHRR 47 . . . . .
Gustafsson v Sweden, 25 Apr 1996, RJD 1996II 9 . . . . . . . . . . . . . . . . .
Herkhoven and Hinke v The Netherlands (App no 15666/89) 19 May
1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

...
...
...
...
441,
...

528
438
438
415
538
145

...

438

xxvi Table of Cases

National Union of Belgian Police v Belgium 27 Oct 1975, Series A
no 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rees v United Kingdom judgment of 17 Oct 1986, Series A no 106 . . . . . 415,
S v United Kingdom (App no 11716/85) 14 May 1986 . . . . . . . . . . . . . . . . . .
Schmidt and Dahlstrm v Sweden judgment of 6 Feb 1976, Series A
no 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sigurjonnson v Iceland judgment of 30 June 1993, Series A no 264 . . . . . 144,
Smith and Grady v United Kingdom (App nos 33985/96 and 33986/96)
[1999] IRLR 73; [2000] 29 EHRR 493 . . . . . . . . . . . . . . . . . . . . 414, 441,
Swedish Engine Drivers Union v Sweden 6 Feb 1976, Series A no 20 . . . . . . .
X and Y v United Kingdom (App no 9369/81) 3 May 1983 . . . . . . . . . . . . . . .
Young, James and Webster judgment of 13 Aug 1981, Series A no 44 . . . . 144,

145
432
438
147
523
538
145
438
523

International Court of Justice

Serrarens case, Recueil International de Jurisprudence du Travail,
Geneva 1927 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

256

UN Human Rights Committee (ICCPR)

Toonen v Australia 31 Mar 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

438

Table of Legislation
EUROPEAN COMMUNITY LEGISLATION
Directives
Dir 75/117/EEC Equal Pay Directive (OJ 1975
L45/19) . . . . . . . . . . . . . . . . . . . . . . . . . 4142, 4546, 4849, 386, 459
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 386
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37172
Dir 75/129/EEC Collective Redundancies Directive (OJ 1975
L48/29) . . . . . . . . . . . . . . . . . . . . . . . 27, 3133, 39, 67, 139, 33839, 36364
Art 1(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 64
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 39
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Arts 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 135
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Dir 76/207/EEC Equal Treatment Directive (OJ 1976 L39/40) . . . . . 42, 51, 5355,
158, 162, 16466, 204, 2089, 24445, 281, 288, 371, 373,
387, 397, 4001, 406, 409, 411, 419, 423, 425, 427,
430, 437, 44243, 457, 464
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245, 447
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 53, 158, 406, 43132, 444
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 413
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
(4) . . . . . . . . . . . . 201, 245, 419, 44243, 44549, 45152, 454, 45657, 464
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 158, 205
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 205
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 159, 205
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 164, 43132
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 371, 373, 440
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Dir 77/187/EEC Acquired Rights Directive (OJ 1977 L61/26) . . . . . . . . 2728, 30,
3239, 67, 124, 340, 343, 348, 352, 522
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Recitals 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

xxviii

Table of Legislation

Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Art 3(1)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3435
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 64
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4041
Dir 77/576/EEC on the provision of safety signs at work in order to indicate
certain hazards (OJ 1977 L229/12) . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Dir 78/610/EEC on the protection of the health and safety of workers from
risks related specifically to exposure to vinyl chloride monomer
(OJ 1978 L197/12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Dir 79/7/EEC Social Security Directive (OJ 1979
L6/24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 53, 245, 355, 418
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 372
Art 7(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Dir 80/987/EEC Insolvency Directive (OJ 1980
L283/23) . . . . . . . . . . . . . . . . . . . . . . 2829, 3233, 340, 343, 352, 366
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 341
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Arts 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 135
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Dir 80/1107/EEC First Framework Directive on the protection of workers from
risks related to exposure to chemical, physical and biological agents
at work (OJ 1980 L327/8) . . . . . . . . . . . . . . . . . . . . . 57, 59, 1001, 338
Dir 82/60/EEC on the protection of workers from the risks related to
exposure to metallic lead and its ionic compounds at work
(OJ 1982 L247/12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Dir 82/605/EEC (OJ 1982 L247/12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
Dir 83/447/EEC on the protection of workers from the risks related to
exposure to asbestos at work (OJ 1983 L263/25) . . . . . . . . . . . . . . . . 58
Dir 86/188/EEC on the protection of workers from the risks related to the
exposure to noise at work (OJ 1986 L137/28) . . . . . . . . . . . . . . . . . . . 58
Dir 86/378/EEC Occupational Social Security Directive (OJ 1986
L225/40) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 53, 35455, 357, 362
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Art 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355

Table of Legislation xxix

(1)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Art 6(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35455
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
Art 9a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Dir 86/379/EEC on the classification, packaging and labelling of dangerous
preparations (OJ 1988 L187/14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Dir 86/613/EEC on self-employment (OJ 1986 L359/56) . . . . . . . . . . . . . . . 42, 53
Dir 88/364/EEC on the protection of workers by banning certain specified
agents and/or certain work activities (OJ 1988 L179/44) . . . . . 58, 94, 338
Dir 88/379/EEC on the classification, packaging and labelling of dangerous
preparations (OJ 1988 L187/14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Dir 88/599/EEC on standard checking procedures on recording equipment
in road transport (OJ 1988 325/55) . . . . . . . . . . . . . . . . . . . . . . . . . 175
Dir 88/642/EEC amending Dir 80/1107/EEC on the protection of workers
from the risks related to chemical, physical and biological agents at
work (OJ 1988 L356/74) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 94
Dir 89/178/EEC amending Dir 88/379 (OJ 1989 L64/18) . . . . . . . . . . . . . . . . . 87
Dir 89/391/EEC Framework Directive on Safety and Health of Workers at
Work (OJ 1989 L183/1) . . . . . . . . . 59, 83, 1005, 12223, 155, 17172,
181, 281, 366, 527
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Recitals 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 171
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 184
Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 412
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
(f)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(3)(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

xxx Table of Legislation

Art 8(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023
(b)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 105
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 15556
Dir 89/392/EEC on the approximation of laws relating to machinery
(OJ 1989 L183/9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Dir 89/552/EEC Broadcasting Directive (OJ 1989 L298/23) . . . . . . . . . . . . . . . 394
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Dir 89/656/EEC on the use of personal protective equipment (OJ 1989
L393/181) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Dir 89/686/EEC on the approximation of laws concerning personal
protective equipment (OJ 1989 L399/18) . . . . . . . . . . . . . . . . . . . . . . 87
Dir 90/269/EEC on the manual handling of loads (OJ 1990 L156/9) . . . . . . . . 103
Dir 90/394/EEC on reducing the risks relating to exposure to carcinogens
(OJ 1990 L196/1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Dir 91/322/EEC amending Dir 80/1107/EEC (OJ 1991 L177/22) . . . . . . . . . . . . 57
Dir 91/382/EEC amending Dir 83/477/EEC (OJ 1991 L206/16) . . . . . . . . . . . . . 58
Dir 91/383/EEC on health and safety at work (OJ 1991
L206/19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 276, 281, 341, 351
Dir 91/533/EEC on Employee Information (Contract or Employment
Relationship) (OJ 1991 L288/32) . . . . . . . . 123, 139, 188, 191, 199, 213
Preamble
Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 191
(2)(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19091, 193, 196, 19899
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 19192, 195, 19899
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19193, 19599
(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 193
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 193, 197
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 195
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 195, 197

Table of Legislation xxxi

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19193
(e)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19192
(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19193
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19193, 198
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19192
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 199
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19193, 195
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 193
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 19394
(1), (a)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 193
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12324, 19091, 195, 19799
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 199
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 19596
Dir 91/555/EEC amending Dir 88/379 (OJ 1991 L76/35) . . . . . . . . . . . . . . . . . 87
Dir 92/56/EEC Collective Redundancies Directive amending Dir 75/129/EEC
(OJ 1992 L245/3) . . . . . . . . . . . . . . . . 28, 32, 87, 139, 188, 33839, 363
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(3), (v)(vi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Dir 92/85/EEC Pregnancy and Maternity Directive (OJ 1992
L348/1) . . . . . . . . . . . . . . . . . 98, 123, 129, 135, 141, 155, 158, 16162,
164, 16768, 186, 288, 527
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Recital 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 156
Recitals 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 166
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 166
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 166
(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15657, 163, 166
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15657, 159, 163, 166
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 166
(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156, 159, 166
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
(2)(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

xxxii

Table of Legislation

Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15657, 160, 162, 166

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 160, 166
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15758, 160, 16466
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 16566, 288
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 16061, 166
(2), (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 160, 166
Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Annex I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15657
Annex II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Dir 93/104/EC Working Time Directive (OJ 1993 L307/18) . . . 58, 88, 9899, 123,
129, 138, 155, 168, 171, 17376, 17879, 181,
18385, 233, 240, 273, 312, 337, 527, 54041
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 178
Recital 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 169
Recital 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 178
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
(2), (a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17071, 177, 17980, 541
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 176, 312
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
(4), (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
(b), (i)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
(7)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Arts 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16972
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16972, 184
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 169
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17072
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 177
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 177
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17072
Arts 912 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170, 312
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17172
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 178
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 174
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17172
(2.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 175
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 176

Table of Legislation xxxiii

(ii)(viii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
(d), (i)(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
(2.2)(2.3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Art 17a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Art 17b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Art 18(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17273, 185, 52728
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Dir 94/33/EC Young Workers Directive (OJ 1994 L216/12) . . . . . . . . . . . . 98, 123,
129, 149, 155, 181, 184, 186, 527
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 181
Recital 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Recital 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Recital 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Recital 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(a)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(b)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18283
Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182, 185
(3)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182, 185
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Art 10(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18284
(3)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 17(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18485
Annex
Points III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

xxxiv Table of Legislation

Dir 94/45/EC European Works Councils Directive (OJ 1994
L254/64) . . . . . . . . . . 64, 69, 141, 241, 248, 29192, 315, 340, 363, 382
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Art 2(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 315
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
Annex 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Dir 95/46/EC on the protection of individuals with regard to the processing
of personal data and the free movement of such data
(OJ 1995 L281/31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Dir 96/34/EC Parental Leave Directive (OJ 1996 L 145/4) . . . . . . . . . . . . 141, 166,
227, 242, 249, 253, 259, 267, 270,
27475, 291, 311, 332, 382, 527
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251, 267
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
(1a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Dir 96/71/EC Posted Workers Directive (OJ 1996 L18/1) . . . . . . 15, 122, 138, 193
Dir 96/94/EC amending Directive 80/1107/EEC (OJ 1996 L338/86) . . . . . . . . . . 57
Dir 96/97/EC amending Dir 86/378/EEC (OJ 1997 L46/20) . . . . . . 42, 53, 35457
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Art 6(1)(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356
Dir 97/74/EC amending Dir 94/45/EC (OJ 1998 L10/20) . . . . . 141, 315, 363, 382
Dir 97/75/EC amending Dir 96/34/EC (OJ 1998 10/24) . . . . . . 141, 242, 267, 382
Dir 97/80/EC Burden of Proof Directive (OJ 1997 L14/16) . . . . 249, 282, 291, 332,
35759, 362, 382, 406, 408, 42021
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282, 35961, 407
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35859
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
Arts 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
Dir 97/81/EC concerning the Framework Agreement on part-time work
(OJ 1998 L14/9) . . . . . . . . . . . . . . . . 133, 139, 167, 191, 249, 253, 275,
277, 282, 291, 311, 341, 351, 382, 475
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382

Table of Legislation xxxv

Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Dir 98/23/EC amending Dir 97/81/EC (OJ (1998 L131/10) . . . . . . . . . . . 139, 191,
275, 277, 382
Dir 98/24/EC Chemical Agents Directive (OJ 1998 L131/11) . . . . . . . . . 5758, 338
Dir 98/43/EC on the approximation of laws on the advertising and
sponsorship of tobacco products (OJ 1998 L213/9) . . . . . . . . . . . . . . . 85
Dir 98/50/EC amending Dir 77/187/EEC on the approximation of the
laws of the Member States relating to acquired rights
(OJ 1998 L201/88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 87, 341, 348
Preamble
Recital 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34850
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348, 350
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Art 2(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Dir 98/52/EC amending Dir 97/80/EC (OJ 1998 L205/66) . . . . . . . . 249, 357, 382
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
Dir 98/59/EC consolidating Dirs 75/129/EEC and 92/56/EEC on collective
redundancies (OJ 1998 L225/16) . . . . 28, 32, 87, 139, 188, 338, 340, 363
Art 1(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 64
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Arts 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Dir 99/63/EC on the Agreement on the organisation of working time of
seafarers (OJ 1999 L167/33) . . . . . . . . . . . . . . . . . . . 171, 175, 253, 527
Dir 99/70/EC Fixed-term Work Directive (OJ 1999 L175/43) . . . . . . . . . . 139, 167,
249, 253, 275, 282, 285, 288, 341, 351, 475
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285, 374
Dir 99/95/EC on seafarers hours of work on board ships using Community
ports (OJ 2000 L14/29) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 527
Dir 2000/34/EC amending Dir 93/104/EC (OJ 2000
L195/41) . . . . . . . . . . . . . . . . . . . . . . . 16869, 171, 174, 179, 527, 541
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17576
(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Dir 2000/43/EC Race Equality Directive (OJ 2000 L180/22) . . . . . . 206, 360, 374,
399402, 4045, 407, 40910, 414, 419, 421, 423, 524, 531
Preamble
Recitals 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
Recital 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404, 524
Recital 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Recital 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

xxxvi Table of Legislation

(2), (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 4089, 522
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401, 531
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4023
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
(g)(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418, 457
Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(1)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406, 410, 420
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
Arts 1112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420, 426
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420, 422
(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374, 420, 423
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Dir 2000/78/EC Framework Employment Directive (OJ 2000
L303/16) . . . . . . . . . . . . . . . . . . 150, 206, 211, 360, 399, 4012, 4045,
407, 40910, 412, 41416, 41923, 425, 439, 536
Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Recital 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Recital 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4001
Recitals 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Recital 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
Recital 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Recital 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Recital 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414, 418
Recital 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404, 418
Recitals 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
Recital 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41516, 536
Recital 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Recital 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
Recital 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 404
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

Table of Legislation xxxvii

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406, 415, 41718
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
(b)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206, 4089, 417, 522
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
Art 3(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402, 404
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41112
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418, 457
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(1)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406, 410, 417, 420
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420, 426
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420, 426
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374, 420
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420, 423
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423
Dir 2000/79/EC on the European Agreement on the Organisation of Working
Time of Mobile Workers in Civil Aviation (OJ 2000
L302/57) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 175, 253, 527
Dir 2001/23/EC consolidating Dirs 77/187/EEC and 98/50/EC on acquired
rights (OJ 2001 L82/16) . . . . . . . . . . . . . . . . . . 28, 34, 38, 87, 348, 350
Preamble
Recital 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348, 350
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 352
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

xxxviii

Table of Legislation

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
(2)(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 64
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Dir 2001/86/EC supplementing the Statute for a European company with
regard to the involvement of employees (OJ 2001
L294/22) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 315, 474, 497
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 2(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Dir 2002/14/EC on a General Framework for Improving Information and
Consultation Rights of Employees (OJ 2002 L80/29) . . . . . 315, 364, 474,
49697, 503, 527, 532
Preamble
Recital 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496
First Framework Directive on Health and Safety at Work . . . . . . . . . . . . 26, 5559

Regulations
1612/68/EEC on free movement of workers (OJ 1968
L257/2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 12122, 401,
Preamble
Recital 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1408/71/EEC on social security systems (OJ 1971 L149/2) . . . . . . . . . 13, 121,
1365/75/EEC (OJ 1975 L139/1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3820/85/EEC on the harmonisation of certain social legislation relating to
road transport (OJ 1985 L370/1) . . . . . . . . . . . . . . . . . . . . . . . . . . .
3821/85/EEC on recording equipment in road transport (OJ 1985
L371/8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4255/88/EEC laying down provisions for implementing Reg
2052/88/EEC as regards the European Social Fund (OJ 1988
L374/21)
Art 1(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2434/92/EEC on SEDOC (OJ 1992 L245/1) . . . . . . . . . . . . . . . . . . . . . . . . . .

403
403
121
13
402
403
13
122
13
138
56
175
175

331
137

Table of Legislation xxxix

2081/93/EEC Structural Funds Framework Regulation (OJ 1993
L193/95) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314, 319
2084/93/EEC European Social Fund (ESF) Regulation (OJ 1993
L193/39) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 314, 319, 474
118/97/EC amending and consolidating Reg 1408/71/EEC (OJ 1997 L28/1) 121, 138
1035/97/EC establishing a European Monitoring Centre on Racism and
Xenophobia (OJ 1997 L151/1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
1466/97/EC on the strengthening of the surveillance of budgetary positions
and the surveillance and co-ordination of economic policies
(OJ 1997 L209/1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
1467/97/EC on speeding up and clarifying the implementation of the
excessive deficit procedure (OJ 1997 L209/6) . . . . . . . . . . . . . . . . . . . 471
781/98/EC on Staff Regulations (OJ 1998 L113/4) . . . . . . . . . . . . . . 415, 442, 536
1346/2000/EC on insolvency proceedings (OJ 2000 L160/1) . . . . . . . . . . . . 34142
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341
1049/2001/EC on public access to European Parliament, Council and
Commission documents (OJ 2001 L145/43) . . . . . . . . . . . . . . . . . . . . 378
Preamble, Recital 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
2157/2001/EC on the Statute for a European Company (SE) (OJ 2001
L294/1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 315, 474, 497
Preamble, Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497

NATIONAL LEGISLATION
Australia
Sex Discrimination Act 1984
s 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

209

Belgium
Collective Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Decree of 18 Sept 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

364
207

Canada
Charter of Human Rights and Freedoms
s 10.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

209
380

Denmark
September Agreement 1899 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Working Environment Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

40
97

France
Labour Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

207
207

xl

Table of Legislation

Germany
Basic Law
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Art 28(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Federal Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444, 455
Hessen Equal Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451, 45354
para 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452

Irish Republic
Constitution . . . . . . . . . . . . . . . . . . . . . . . . .
Employment Equality Act 1998 . . . . . . . . . . . .
Employment Equality Agency Code of Practice .
Minimum Notice and Terms of Employment Act

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441
411
207
189

Flexibility and Security Agreement 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

310

Netherlands

Norway
Working Environment Act 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

97

South Africa
Constitution
s9 ......................................................

380

Sweden
Discrimination of People with Disabilities Act 1999 . . . . . . . . . . . . . . . . . . . .

411

United Kingdom
Contracts of Employment Act 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Criminal Justice and Public Order Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Disability Discrimination Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Employment Rights Act 1996
s 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
Equal Pay Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Health and Safety at Work Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Maternal and Parental Leave etc Regulations 1999 (SI 1999/3312) . . . . . . . . . . 160
National Minimum Wage Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Northern Ireland Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
Protection from Harassment Act 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Race Relations Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4045
Trade Union Reform and Employment Rights Act 1993
s 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Transfer of Undertakings (Protection of Employment) Regulations
(SI 1981/1794) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Table of Legislation xli

Reg 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Working Time Regulations (SI 1998 No 1833; revised by SI
1999/3372) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124,
s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Working Time (Amendment) Regulations 2001 (SI 2001/3256) . . . . . . . . . . . . .

35
186
124
179

USA
Americans with Disabilities Act 1990
s 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Civil Rights Act 1964 (42 USC 2000e-2(a)(1)), Title VII . . . . . . . . . . . . . . . . 209
Clayton Act 1914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Delaware Corporation Act 1899 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
National Labor Relations Act 1964
s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
s 8(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
s 9(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Sherman Act 1870 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Table of Treaties and

Other Instruments
Benelux Customs Union 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Benelux Treaty on Economic Union 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Charter of Fundamental Rights of the European Union 2000 . . . . . . 111, 131, 145,
328, 382, 384, 397, 41516, 429, 461,
49192, 496, 51121, 523, 52545
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440, 51718, 520, 538
Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512, 518
Recital 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 531
Recitals 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519
Recitals 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520
Recital 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 520
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409, 521
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Arts 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 522, 536
Arts 1011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52223, 536
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523, 53940
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 523, 525, 538
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52425
Arts 2425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413, 524
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519, 52527
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . 519, 52526, 53334, 53637, 53940
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519, 52526, 533
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52628, 532
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 521, 527, 54041
Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52627

xliv Table of Treaties and Other Instruments

Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519, 526, 528
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528, 532
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519, 525
Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519
Arts 3738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540
Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532, 540
(1)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528, 532
Arts 4950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532
Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 52829, 540
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52934
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53234
Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 528, 540
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533, 541
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 523, 53738
Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 528, 530, 53840
Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 528, 53940
Ch I on Dignity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
Ch II on Freedoms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52122
Ch III on Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 523
Ch IV on Solidarity . . . . . . . . . . . . . . . . . . . . . . . . 521, 52527, 540, 54344
Ch V on Citizens Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
Ch VI on Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521, 528
Ch VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Annex I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
Annex II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
Charter of Rome 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Community Charter of Fundamental Social Rights of Workers 1989 (Social
Charter) . . . . . . . . . . . . . . 73, 78, 91, 98, 111, 11520, 12526, 12831,
13336, 138, 14049, 15254, 169, 177, 179, 181, 18687, 200,
211, 213, 220, 233, 23537, 242, 244, 267, 276, 29192,
303, 316, 321, 339, 343, 352, 381, 383, 386, 401, 496,
51214, 518, 520, 526, 530, 532, 542, 544
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 13032, 13536, 13840, 240
Recital 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Recital 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 381
Recital 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13132
Recital 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Recital 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 133
Recital 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 135, 240
Point 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 13637
Points 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13637
Point 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 142
Point 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 14243, 210, 276, 526

Table of Treaties and Other Instruments xlv

para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Point 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 14243, 276
Point 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 136, 13839, 532
Point 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 129, 136, 138, 177, 527
Point 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 136, 13839
Point 10 . . . . . . . . . . . . . . . . . . . . . . . . 117, 13637, 142, 15052, 525, 528
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Point 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 136, 142, 144
Point 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 142, 144, 526
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Point 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 142, 14446, 52526
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Point 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 142, 144, 526
Point 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 137, 523
Point 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 140, 156, 244, 267
Points 1718 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 141, 526
Point 19 . . . . . . . . . . . . . . . . . . . . . . 117, 129, 137, 141, 156, 169, 177, 527
Point 20 . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 129, 137, 142, 148, 181, 527
Point 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 142, 148, 527
Point 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 137, 142, 148, 181, 527
Point 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 142, 148, 527
Point 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 137, 14950, 524
Point 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 14950, 524
Point 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 137, 149, 151, 524
Point 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 133, 136, 237, 239, 532
Point 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 129, 136, 143, 152, 237
Points 2930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 237
Title I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Title II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 136
Community Staff Regulations . . . . . . . . . . . . . . . . 47, 122, 41516, 442, 536, 538
Convention on Human Rights and Biomedicine
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Council of Europe Convention for the Protection of Individuals with regard to
the Automatic Processing of Personal Data 1981 . . . . . . . . . . . . . . . . 522
Declaration of Philadelphia 1944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
EECMorocco Co-operation Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
European Atomic Energy Community Treaty 1957 (Euratom) . . . . . . . . . . . . . . . 1
European Coal and Steel Community Treaty 1951 (ECSC) . . . . . . . . 1, 44, 61, 256
Preamble
Recital 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 256
Art 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
European Community (EC) Treaty, formerly European Economic
Community (EEC) Treaty 1957, as amended, Single European
Act 1987, Treaty on European Union 1993, Treaty of
Amsterdam 1999 . . . . . . . . . . . . 14, 6, 9, 12, 14, 21, 45, 61, 69, 74, 76,
79, 8586, 94, 109, 111, 117, 122, 130, 132, 134, 153,
186, 212, 218, 220, 22223, 225, 227, 229, 23132,
241, 353, 379, 450, 472, 486, 513, 523

xlvi Table of Treaties and Other Instruments

Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 109, 130
Art 2 . . . . . . . . . . . . . . . . . . . . . . 12, 20, 37, 87, 229, 236, 305, 334, 379, 386,
388, 429, 461, 470, 514, 525, 534
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 219, 229, 379
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(d)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(g) (ex Art 3(f)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(j) (ex Art 3(i)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(2) . . . . . . . . . . . . . . . . . . . . . . 334, 379, 386, 401, 427, 429, 461, 475, 525
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
Art 5 (ex Art 3b) . . . . . . . . . . . . . . . . . . . 85, 114, 133, 222, 227, 23031, 514
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 234
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 231
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 234
Art 7 (ex Art 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321, 529
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Art 8b EEC(repealed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Art 10 (ex Art 5) . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 46, 52, 55, 80, 202, 367
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4344
Art 12 (ex Art 6) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 51, 38081, 402, 52324
Art 13 . . . . . . . . . . . . . . . 131, 150, 206, 20910, 324, 374, 377, 379, 37981,
386, 393403, 405, 412, 415, 42325, 427, 429,
436, 439, 44142, 457, 475, 52224, 538
Art 14 (ex Art 7a EC; ex Art 8a EEC) . . . . . . . . . . . . . . . . . . . . 79, 81, 86, 534
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7980
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Art 15 (ex Art 7c EC; ex Art 8cEEC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 81
Art 17 (ex Art 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 316, 378, 523
Arts 1822 (ex Arts 8a8e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 316, 378
Art 28 (ex Art 30) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 75
Art 29 (ex Art 34) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Art 30 (ex Art 36) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 7576, 89
Art 39 (ex Art 48) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213, 121, 137, 402
Art 40 (ex Art 49) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213, 121, 137
Art 41 (ex Art 50) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 121, 137
Art 42 (ex Art 51) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 1213, 121, 137
Art 43 (ex Art 52) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 143
Art 44 (ex Art 54) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
(3)(g) (ex Art 54(3)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 67
Arts 4546 (ex Arts 5556) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Art 47 (ex Art 57) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Art 48 (ex Art 58) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 137
Art 49 (ex Art 59) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Art 55 (ex Art 66) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Arts 6169 (ex Arts 73i73q) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376, 403

Table of Treaties and Other Instruments xlvii

Art 81 (ex Art 85) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 1819, 147, 386, 537
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1920
Art 82 (ex Art 86) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 1819
Arts 8385 (ex Arts 8789) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Art 86 (ex Art 90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 1819
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1617
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Art 87 (ex Art 92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Art 88 (ex Art 93) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Art 89 (ex Art 94) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Art 94 (ex Art 100) . . . . . . . . . . . . . 6, 9, 25, 27, 3233, 76, 80, 8284, 8687,
94, 143, 146, 154, 18688, 213, 222, 348,
38283, 385, 534
Art 95 (ex Art 100a) . . . . . . . . . . . . . . 79, 80, 8284, 8691, 94, 240, 380, 385
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8182, 8486, 88
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8184, 88, 91, 96, 187, 213, 219, 240
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8385, 87, 90, 93
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8990
(5)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
(10) (ex Art 100a(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Arts 9697 (ex Arts 101102) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Art 98 (ex Art 102a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 216, 388, 470
Art 99 (ex Art 103) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 216, 388, 390, 470
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388, 470
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303, 389, 46971
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47071
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
Arts 100103 (ex Arts 103a104b) . . . . . . . . . . . . . . . . . . . . . . . 216, 388, 470
Art 100b EEC (repealed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 9091
Art 104 (ex Art 104c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 388, 390, 470
(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469, 471
Art 105 (ex Art 105) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 228, 388
Arts 106120 (ex Arts 105a109i) . . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 388
Art 121 (ex Art 109j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 388
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 470
Arts 122124 (ex Arts 109k109m) . . . . . . . . . . . . . . . . . . . . . . . . . . 216, 388
Art 125 (ex Art 109n) . . . . . . . . . . . . . . . . . . . . . . 138, 308, 379, 38889, 470
Art 126 (ex Art 109o) . . . . . . . . . . . . . . . . . . . . . . . . . 138, 308, 379, 388, 470
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307, 388, 470
Art 127 (ex Art 109p) . . . . . . . . . . . . . . . . . . . . . . 62, 138, 308, 379, 388, 470
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389, 480
Art 128 (ex Art 109q) . . . . . . . . . . . . . . . 62, 138, 308, 379, 388, 390, 470, 475
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

xlviii

Table of Treaties and Other Instruments

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390, 471

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390, 479
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
Art 129 (ex Art 109r) . . . . . . . . . . . . . . . . . 62, 38, 308, 379, 38889, 470, 499
Art 130 (ex Art 109s) . . . . . . . . . . . . . . . . 62, 138, 308, 379, 38889, 470, 475
Art 130r(4) (repealed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Art 136 (ex Art 117; ex Art 1 of the Agreement on Social
Policy) . . . . . . . . . . . . . . . . . 2, 69, 20, 23, 44, 53, 80, 93, 95, 111, 122,
13031, 138, 152, 187, 213, 216, 220, 222, 227, 230,
234, 23637, 242, 247, 309, 326, 379, 38185,
458, 461, 498, 513, 514, 519, 531, 542
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Art 137 (ex Art 118a; ex Art 2 of the Agreement on Social
Policy) . . . . . . . . . . . . . . . . . 2, 8, 31, 47, 58, 79105, 12223, 126, 142,
144, 149, 152, 15486, 190, 212213, 216, 21920,
222, 227, 230, 23342, 24748, 251, 276, 309,
379, 382, 38485, 458, 461, 475, 48889
(1) . . . . . . . . . . . . . . . . . . 32, 47, 87, 123, 230, 237, 285, 384, 387, 527, 532
(2) . . . . . . . . . . . . . . . . . . 32, 47, 174, 237, 252, 25455, 25961, 273, 280,
380, 384, 399, 489, 496, 499
(3) . . . . . . . . . . . . 32, 136, 140, 242, 252, 254, 381, 384, 499, 523, 528, 533
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
(5) (ex Art 118a(3)) . . . . . . . . . . . . . . . . . . . . . . 32, 136, 238, 240, 385, 539
(6) . . . . . . . . . . 11, 86, 144, 146, 210, 242, 275, 281, 292, 38586, 399, 533
Art 138 (ex Art 3 of the Agreement on Social Policy) . . . . . 2, 79, 107, 122, 148,
152, 213, 216, 21920, 222, 227, 230, 236, 242, 24666,
309, 379, 382, 385, 458, 461, 505, 526
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 259
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 277, 285
Art 139 (ex Art 118b; ex Art 4 of the Agreement on Social
Policy) . . . . . . . . . . . . . . . . . . 2, 7980, 1057, 122, 148, 152, 213, 216,
21920, 222, 227, 230, 236, 24142, 24666, 309,
379, 382, 385, 458, 461, 505, 526
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 259
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250, 252, 25455, 263, 26667
Art 140 (ex Art 118c) . . . . . . . . . . . . 2, 55, 60, 80, 95, 97, 122, 138, 152, 213,
216, 220, 222, 230, 23637, 242, 247,
309, 379, 382, 458, 461, 52728
(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Art 141 (ex Art 119; ex Art 6 of the Agreement on Social
Policy) . . . . . . . . . . . . . . 2, 4, 6, 9, 42, 4450, 5355, 80, 122, 131, 140,
152, 16163, 203, 213, 216, 21920, 222, 227, 230,
236, 238, 242, 24447, 281, 309, 35355, 35758,
361, 37982, 386, 398, 403, 42930, 43539,
45849, 46061, 46364, 525
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4445, 244, 386

Table of Treaties and Other Instruments xlix

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 244
(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 38687, 400, 522
(4) (ex Art 6(3) of the Agreement on Social
Policy) . . . . . . . . . 38788, 41819, 442, 45152, 454, 45657, 464, 525
Art 142 (ex Art 120) . . . . . . . . . 2, 4, 6, 80, 122, 152, 213, 216, 220, 222, 230,
236, 242, 247, 309, 379, 382, 458, 461
Art 143 (ex Art 122) . . . . . . . . . . . . . . . . . 2, 80, 122, 152, 213, 216, 220, 222,
230, 23637, 242, 247, 309, 379, 382, 458, 461
Art 144 (ex Art 121) . . . . . . . . . . . . . 2, 80, 122, 152, 213, 216, 220, 222, 230,
236, 242, 247, 309, 379, 382, 458, 461
Art 145 (ex Art 122) . . . . . . . . . . . . . . . 2, 8, 80, 122, 152, 213, 216, 220, 222,
230, 236, 242, 247, 309, 379, 382, 458, 461
Art 146 (ex Art 123) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 220, 22930, 314, 474
Arts 147148 (ex Arts 124125) . . . . . . . . . . . . . . . . . . . . . . . . 2, 220, 22930
Art 149 (ex Art 126) . . . . . . . . . . . . . . . . . . . . . . . 220, 22930, 309, 319, 402
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Art 150 (ex Arts 127128) . . . . . . . . . . . . . 8, 220, 22930, 309, 319, 322, 523
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Art 152 (ex Art 129) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 319
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Art 158 (ex Art 130a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Art 202 (ex Art 145) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Art 205(2) (ex Art 148(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Art 211 (ex Art 155) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251, 335, 365
Art 220 (ex Art 164) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 202, 410, 534
Art 226 (ex Art 169) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 43, 173, 365
Art 228(1) (ex Art 171(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Art 230 (ex Art 173) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 227, 25960, 532
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Art 231 (ex Art 174) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
Art 234 (ex Art 177) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 43, 52, 203, 444
Art 236 (repealed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Art 249 (ex Art 189) . . . . . . . . . . . . . . . . . . 13, 4042, 52, 55, 203, 225, 254
Art 250 (ex Art 189a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Art 251 (ex Art 189b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 377, 384, 499
Art 252 (ex Art 189c EC, ex 149(2) EEC) . . . . . . . . . . . . . . . . . 96, 239, 384
Art 255 (ex Art 191a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Art 259(3) (ex Art 195(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Art 281 (ex Art 210) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Art 286 (ex Art 213b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Art 288 (ex Art 215) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3676
Art 295 (ex Art 222) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 35
Art 300(6) (ex Art 228(6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Art 308 (ex Art 235) . . . . . 9, 25, 5354, 82, 114, 140, 146, 222, 322, 325, 497
Art 311 (ex Art 239) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22425
Protocol No 2 concerning Art 119 EC (1990) (Barber Protocol) . . . . . . . . . . 224,
35354, 356, 376, 459

Table of Treaties and Other Instruments

Protocol No 1 on EMU and the UK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Protocol No 2 on EMU and Denmark . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Protocols Nos 35 concerning Schengen, border controls, visas and asylum . . 376
Protocol No 6 on the convergence criteria . . . . . . . . . . . . . . . . . . . . . . 228, 470
Protocol No 7 on the institutions with the prospect of enlargement of
the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Protocol No 8 on the principle of subsidiarity and proportionality (ex
Protocol No 30) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 234
para 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Protocol No 9 on the role of national parliaments in the EU . . . . . . . . . . . . . 378
Protocol No 14 on social policy . . . . . . . . . . . . . . . . . . . 20, 130, 134, 21927,
23537, 292, 376, 379, 382
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Agreement on Social Policy . . . . . . . . . . 64, 72, 93, 107, 130, 134, 141, 15354,
188, 21927, 230, 23538, 24041, 24448, 252, 255,
263, 266, 277, 29192, 309, 379, 38283
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Recital 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 227, 230, 23637, 240, 38384
Art 2 . . . . . . . . . . . . . . . . . . . . . . . 144, 227, 238, 240, 244, 24748, 251, 384
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 237, 23942, 275, 285, 384, 387
(2) . . . . . . . . . . . . . . 210, 237, 23941, 248, 252, 25455, 25961, 273, 280
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 23943, 247, 252, 254, 384
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23840
(6) . . . . . . . . . . . . . . . . . . . . . . . 144, 146, 210, 23943, 275, 281, 292, 385
Art 3 . . . . . . . . . . . . . . . . . . . . . . . 148, 223, 225, 227, 24647, 253, 261, 385
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 259
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 277, 285
Art 4 . . . . . . . . . . . . . . . . . 148, 221, 225, 227, 241, 24647, 25253, 261, 385
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 252, 259
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247, 250, 252, 25455, 263, 26667
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227, 238, 244, 386
(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24445, 387, 442
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Protocol on Certain Provisions Affecting France, Pt II . . . . . . . . . . . . . . . . . . . 4
European Convention for the Protection of Human Rights and Fundamental
Freedoms 1950 (ECHR) . . . . . . . 3, 10915, 14445, 229, 378, 396, 400,
43839, 441, 51315, 517, 52223, 528, 53031, 53539, 544
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Art 6(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 421, 438, 441, 522, 538
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
Arts 910 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14445, 147, 386, 52223, 536, 538
(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Table of Treaties and Other Instruments li

Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415, 522
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396, 398, 417, 438, 441, 523, 538
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
Protocol No 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39698
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
European Social Charter 1961 (ESC) . . . . . . . . . . . . . 3, 41, 58, 109, 11116, 130,
142, 145, 229, 381, 384, 51314, 520, 526, 529, 53738, 544
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 526
(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 527
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 527
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 526
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 14344, 523
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 14445, 386, 526, 536, 538
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 534
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 148, 181, 527
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 527
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 523
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 148, 525, 528
Arts 1314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 527
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Art 33(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1988 Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11213
1991 Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11214, 520, 537
1995 Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11213
European Social Charter (Revised) 1999 . . . . . . . . . . . . . 112, 114, 132, 514, 520,
52627, 529, 537
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 526
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 527
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 524
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 526
Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 522, 527
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 527
Arts 2829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 528
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 526, 528

lii

Table of Treaties and Other Instruments

International Labour Organisation (ILO) Constitution 1919 . . . . . . . . . . . . . . . 45

Art 19(5)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ILO Convention No 4 on night work (women) . . . . . . . . . . . . . . . . . . . . . . . . 159
ILO Convention No 20 prohibiting the production of bread etc during the
night (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ILO Convention No 26 on minimum wage-fixing machinery 1928 . . . . . . . . . . 243
ILO Convention No 29 on forced or compulsory labour . . . . . . . . . . . . . . . . . 278
ILO Convention No 81 on labour inspection in industry and commerce
(1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ILO Convention No 87 on freedom of
association . . . . . . . . . . . . . . . . . . . . . . 3, 144, 278, 386, 523, 534, 536
ILO Convention No 89 on night work (women) . . . . . . . . . . . . . . . . . . . . . . . 159
Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
ILO Convention No 90 on night work of young persons . . . . . . . . . . . . . . . . . 181
ILO Convention No 98 on the right to organise . . . . . . 3, 144, 278, 386, 523, 536
ILO Convention No 100 on equal remuneration between men and women
(1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 45, 278, 386
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
ILO Convention No 102 on social security (minimum standards) . . . . . . . . . . . 148
ILO Convention No 111 on employment and occupation . . . . . . . . . . . . . . . . 398
ILO Convention No 135 on the protection and facilities to be afforded
workers representatives in undertakings (1971)
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ILO Convention No 138 on minimum age . . . . . . . . . . . . . . . . . . . . . . . 148, 181
ILO Convention No 171 on night work (revised) (1990) . . . . . . . . . . . . . . . . . 159
ILO Convention No 175 on part-time work . . . . . . . . . 13233, 277, 27981, 283
Art 1(c)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Arts 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278, 282
(2)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278, 283
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
ILO Convention No 180 on seafarers hours of work . . . . . . . . . . . . . . . . . . . 175
ILO Convention No 183 on maternity (revised) . . . . . . . . . . . . . . . . . . . . . . . 168
Merchant Shipping (minimum standards) Convention 1976 175
Schengen Agreement 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Schengen Convention 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Single European Act 1987 (SEA) . . . . . . . . . . 26, 31, 47, 5759, 72, 7882, 8486,
8992, 9495, 1057, 109, 114, 117, 120,
142, 149, 154, 168, 215, 241
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 111, 384
Recital 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Recital 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Treaty of Amsterdam 1997 . . . . . . . . . 2, 62, 79, 81, 84, 87, 89, 94, 96, 131, 138,
150, 206, 227, 23435, 244, 285, 291, 307, 324, 37577,
383, 436, 439, 451, 460, 468, 498, 513
Treaty on European Union 1993 (TEU) . . . . . . . . . . 20, 79, 85, 114, 134, 15354,
215, 21920, 22829, 231, 257, 265, 269, 276,
292, 294, 316, 318, 336, 365, 375, 381, 384

Table of Treaties and Other Instruments liii

Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
para 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
Recital 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Art 1 (ex Art A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 231, 377
Art 2 (ex Art B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 379
Art 3 (ex Art C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Art 6 (ex Art F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 396, 400, 523, 542
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228, 255, 378, 529
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 378, 531
Art 7 (ex Art F.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 52930
Art 12(2) (ex Art J.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Art 29 (ex Art K.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
Art 31 (ex Art K.3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Art 46 (ex Art L) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229, 530
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Art 48(2) (ex Art N.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 293
Art 49 (ex Art O) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378
Title II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Treaty of Nice 2001 . . . . . . . . . . . . . . . 81, 227, 48689, 491, 499, 517, 529, 534
Treaty of Rome 1957 (see European (Economic) Community Treaty)
Treaty of Versailles 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Art 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
UN Charter on Economic, Social and Cultural Rights
Art 7(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
UN Convention on the elimination of all forms of discrimination against
women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
UN Convention on the Elimination of Racial Discrimination . . . . . . . . . . . . . . 398
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
UN Convention on the Rights of the Child 1989 . . . . . . . . . . . . . . . . . . . . . . 524
Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
UN International Convention on the protection of all migrant workers and
members of their families 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
UN International Covenant on Civil and Political Rights 1966 . . . . . . . . . 112, 398,
43839, 520, 537
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 386, 523, 536
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438
UN International Covenant on Economic, Social and Cultural
Rights 1966 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 398
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 386, 520, 523, 536
UN Standard Rules on the Equalisation of Opportunities for Persons with
Disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Universal Declaration of Human Rights 1948 . . . . . . . . . . . . . . . . . . . 3, 513, 521
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Vienna Convention on the Law of Treaties 1969 . . . . . . . . . . . . . . . . . . . . . . . 126
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
WHO Constitution 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 168

1
The Emergence of the Social
Dimension
I INTRODUCTION

HEN THE FOUNDERS of what we now know as the

European Union set about their grand scheme of building a
European Federation they resisted the opportunity to insert a
guarantee of fundamental social rights into the Treaties establishing the
European Communities.1 This possibility was disregarded not because the
founders were doctrinaire economic liberals driven by the mores of laissezfaire economics, but rather because they had a propensity for pragmatic
incrementalism, or engrenage,2 as a means of delivering their unique project,
building a Union step-by-step in a technocratic fashion, first by integrating
sectoral production, and then by removing trade barriers over a transitional
period. This cumulative approach, beginning with the least controversial
areas, created an irreversible dynamic for political as well as economic
integration.3 For six Western European states devastated by war and
determined not to repeat the mistakes of the inter-war years, a federal order
of European states that transcended the national framework was appealing
so long as its initial tasks were determined by the need to rebuild industrial
and agrarian production and to establish a common market for their goods
and services, while anchored to a system that guaranteed economic interdependence as a conduit for lasting peace.4
1
The European Coal and Steel Community (ECSC) 1951; the European Economic
Community (EEC) 1957; and Euratom, 1957. The grand scheme was most clearly enunciated
by Robert Schuman, the French Foreign Minister, in his famous declaration of 9 May 1950,
when he proclaimed that the proposed ECSC was the first concrete foundation for a
European Federation which is indispensable for lasting peace. See 22 Department of State
Bulletin 936 at 937.
2
This literally means an enmeshing of gear wheels by which one cog drives another. See M
Wise & R Gibb, Single Market to Social Europe: The European Community in the 1990s
(Longman, Harlow, 1993) p 34.
3
Hence the decision to deal with coal and steel first. The logic behind this strategy is
explained by its architect in: J Monnet, A Ferment of Change (1962) 1 Journal of Common
Market Studies 203.
4
The founder members were Belgium, France, Luxembourg, the Netherlands, Italy and the
Federal Republic of Germany.

The Emergence of the Social Dimension

Within this context a Community social policy was recognised as being

desirable as a humanitarian goal but it was not considered a necessity,
except in those fields where it might operate to prevent an economically
unsound advantage being gained, or to provide economic assistance to
those affected by any negative consequences of sectoral adjustment and the
shake up caused by the establishment of the Common Market.5 Social policy
was to serve as a means of facilitating the Communitys competitive goals
rather than as an end in itself. At the most, the inclusion of a Title on Social
Policy in the EEC Treaty,6 with two chapters, was indicative of a longerterm objective of social policy harmonisation as a spillover from economic
integration.7
This book will seek to evaluate the ebb and flow of Community social
policy over a period of 50 years of European integration. It will trace the
gradual emergence of social policy from its relatively insignificant status in
the Treaty of Rome to its present state of development after the Treaty of
Amsterdam which, for the first time, endows the revised EC Treaty with an
autonomous legislative base for furthering the Communitys evolving social
policy objectives in the form of a new Social Chapter.8

II SOCIAL POLICY IN THE TREATY OF ROME

(1) The Ohlin and Spaak Reports

Social minimalism pervaded the EEC Treaty. The limited base of
Community social policy did not derive solely from the cautious attitudes
of the Member States. It was attributable also to the influential guidance
of the International Labour Organisation (ILO), which had adopted a series
of universal labour standards in the period immediately after the end of the

5
See the Ohlin Report, International Labour Office, Social Aspects of European Economic
Co-operation (1956) 74 International Labour Review 99 at 105. On unfair advantage, see
Art 119 EEC [now 141 EC] on equal pay between men and women, and Arts 12328 EEC
[now 14648 EC] establishing the European Social Fund. For discussion, see S Deakin, Labour
Law as Market Regulation: the Economic Foundations of European Social Policy in P Davies,
A Lyon-Caen, S Sciarra & S Simitis (eds) European Community Labour Law: Principles and
Perspectives (Clarendon Press, Oxford, 1996) 6293.
6
Arts 11728 EEC [now replaced by Arts 13648 EC].
7
This is based on the neo-functionalist theory of European integration, propounded
mainly by American political scientists, by which non-state actors, primarily the Commission,
push forward the process of integration by integrating economic sectors and then moving on
to integrate other sectors as a result of technical pressures. See generally, E Haas, The Uniting
of Europe: Political, Social and Economic Forces 19501957 (Stanford, California, 1968); L
Lindberg, The Political Dynamics of European Economic Integration (Stanford, California,
1963).
8
Arts 13645 EC [replacing Arts 11722 EEC].

Social Policy in the Treaty of Rome 3

Second World War.9 There was little pressure on the fledgling Community
to duplicate these existing, and therefore complementary, norms. In 1956
the ILOs Committee of Experts issued the Ohlin Report on the Social
Aspects of European Integration.10 The Committee of Experts took the view
that countries that were striving for, or already adhering to, ILO standards
at the national level, with healthily diverse social systems, did not need to
establish their own set of hybrid trans-European rules when their free
trading goals could allow them to raise national social standards without
any concurrent harmonisation of social policies. The Committee concluded
that:11
International competition in a common market would not prevent particular countries from raising workers living standards and there is no sound reason to think
that freer international markets would hamper in any way the further improvement
of workers living standards, as productivity rises, through higher wages or
improved social benefits and working conditions . . .

In reaching this conclusion the Committee of Experts were making several

important assumptions. They believed that not only would the Common
Market lead to rapid improvements in productivity, but also that the interests of workers would be taken into account as the Community developed
its policies because trade unions in the European countries were strong, and
further, there was general sympathy among European governments for
social aspirations to ensure that labour conditions would improve and not
deteriorate.12 Moreover, the far reaching ILO Conventions, coupled with
instruments drawn up by the Council of Europe, specifically the European
Convention for the Protection of Human Rights and Fundamental
Freedoms13 and the proposed European Social Charter,14 were considered to
be the appropriate vehicles for the formulation of individual and collective
social rights and ensuring observance of an optimum level of social standards at national level.
These views were not surprising because the notion of fair competition,
taking into account social costs to prevent the dumping of human
resources, was already well established as a basis for international labour
9
The ILO, which was originally formed following the Treaty of Versailles, 1919, was
re-established in 1946 under the aegis of the United Nations. Among its most notable
Conventions are No 87, Freedom of Association, No 98, The Right to Organise, and No 100 on
Equal Remuneration between Men and Women. For a comprehensive survey, see N Valticos
& G von Potobsky, International Labour Law, 2nd revised edn (Kluwer, Deventer, 1995).
10
(1956) 74 International Labour Review 99.
11
Ibid at 115.
12
Ibid at 112.
13
The Convention was adopted in Rome on 4 Nov 1950. It was heavily influenced by the
Universal Declaration of Human Rights proclaimed by the General Assembly of the United
Nations on 10 Dec 1948.
14
The Charter had been drafted at the time of the EEC Treaty and was eventually agreed
by the Member States and opened for signature in Turin on 18 Oct 1961.

The Emergence of the Social Dimension

law conventions.15 The ILO was not unduly concerned about differences in
wages and social charges between different countries in the context of the
proposed EEC so long as these reflected improvements in productivity,
which tended to go hand in hand with higher social standards and decent
wages. It followed that differences in social costs did not per se constitute
an obstacle to the establishment of freer international markets.16 Only in
the areas of equal pay between men and women and the provision of paid
holidays was a case made for a guarantee at national level because an unfair
advantage over competitors might be derived from any sharp differences
between countries. As the Committee explained when considering equal
pay:17
Countries in which there are large differentials by sex will pay relatively low wages
in industries employing a large proportion of female labour and these industries will
enjoy what might be considered a special advantage over their competitors abroad
where differentials according to sex are smaller or non-existent.

Ohlin and his colleagues were shrewd judges of the realpolitik behind the
European integration project. The Reports recommendations chimed well
with the differing priorities of the ECSC members. Germany was eager to
ensure that there was minimal interference with national policies on wages
and prices, a view broadly supported by Ohlin.18 France preferred a more
dirigiste approach because they had higher social costs and sought to raise
other countries to the same level.19 These concerns were reflected by the
Committees recommendations on equal pay, paid holidays and working
time. The Treaty of Rome endorsed this approach with specific commitments on equal pay and paid holidays,20 and a Protocol allowing France to
take protective measures if the working hours in other Member States were
not reduced to the French level.21 Italy regarded the establishment of a
Common Market as an opportunity to alleviate economic problems, par15
The first known advocate of this argument was the socialist pioneer Robert Owen in
his petition to the Five Powers at Aix-la-Chapelle in 1818see B Hepple, Harmonisation
of Labour Law in the European Communities in J Adams (ed) Essays for Clive Schmitthoff
(Professional Books, Abingdon, 1983) 1428 at 15. See also, H Feis, International
Labour Legislation in the Light of Economic Theory (1927) International Labour Review
425.
16
The Ohlin Report, n 5 above at 99.
17
Ibid p 107.
18
See C Barnard, The Economic Objectives of Article 119 in T Hervey & D OKeeffe (eds)
Sex Equality Law in the European Union (Wiley, Chichester, 1996) 32134 at 32425.
19
See L Betten, Prospects for a Social Policy of the European Community and its Impact
on the Functioning of the European Social Charter in L Betten (ed) The Future of European
Social Policy (Kluwer, Deventer, 1989) 10141 at 107.
20
Arts 119 and 120 EEC [now 141 and 142 EC].
21
Part II of the Protocol on Certain Provisions Affecting France. See P Davies, The
Emergence of European Labour Law in W McCarthy (ed) Legal Intervention in Industrial
Relations: Gains and Losses (Blackwell, London, 1993) 31359 at 32223.

Social Policy in the Treaty of Rome 5

ticularly unemployment in the southern regions, and welcomed the
Committees findings on the need for a structural fund and loans,22 as
established through the European Social Fund and the European Investment
Bank, and for co-ordination, not harmonisation, of social security systems
that would encourage labour mobility, as provided for in Article 51
EEC [now 42 EC].23 The Benelux countries were prepared to accept a
compromise that reflected the views of their three larger partners.24
The Member States could hardly be faulted for strictly adhering to these
recommendations while precluding specific Community powers to legislate
for the purpose of social policy harmonisation. The logic behind the Ohlin
Report was well understood by the inter-governmental committee chaired
by the Belgian Foreign Minister, Paul-Henri Spaak. The Spaak Committee
envisioned a gradual coalescence of social standards but such equalisation
far from being a condition precedent to the functioning of the common
market was, on the contrary, a consequence of its operation.25 Hence, the
Common Market and free competition were regarded as paramount for
a successful social policy. The European Commissions First Report on
Competition Policy, published in 1971, at the zenith of the Communitys
economic achievements, stated that:26
Competition is the best stimulant of economic activity since it guarantees the widest
possible freedom of action to all. An active competition policy pursued in accordance with the provisions in the Treaties . . . enables enterprises continuously to
improve their efficiency, which is the sine qua non for a steady improvement in living
standards and employment prospects within the countries of the Community. From
this point of view, competition policy is an essential means for satisfying to a great
extent the individual and collective needs of our society.

Thus competition was chosen over welfare at transnational level at a time

when economic determinism could deliver the wealth to resource substantial increases in living standards and relatively generous social security
protection at national level, and when there was a social consensus among

22
As a result of this policy 543,000 Italian workers had been retrained and 340,000 resettled in France and Germany by 1968. See B Bercusson, European Labour Law (Butterworths,
London, 1996) p 48.
23
The Committee was not unanimous in this view but the Chairman and Mr By endorsed
it in a supplementary note: Ohlin Report, n 5 above at 122. See also Betten, n 19 above at
107.
24
Belgium, the Netherlands and Luxembourg formed a customs union in 1948, went on
to establish a common market by 1956 and, later, in 1960, signed a Treaty on Economic
Union.
25
Rapport des chefs de dlgation aux ministres des affaires trangres (Brussels) 21 April
1956, pp 1920 and 601. My emphasis. For a full discussion of Ohlin and Spaak, see Davies
in McCarthy, n 21 above at 31823.
26
Competition Report (European Commission, Brussels, 1971) p 11. See D Wyatt &
A Dashwood, European Community Law, 3rd edn (Sweet & Maxwell, London, 1993)
p 377.

The Emergence of the Social Dimension

Western European states. As Shanks explains, a Community which is

purely an economic arrangement can work well in periods of growth and
prosperity [but] it is unlikely to survive a period of social stress.27 Before
turning to the circumstances which caused that social stress in the early
1970s, and the consequences of the breaking down of the social policy consensus in the 1980s, the Treaty of Rome must be examined in more depth.

(2) The First Social Chapter

Apart from the application of the principle of equal pay between men and
women contained in Article 119 EEC [now 141 EC], and the determination to endeavour, by unspecified means, to maintain the existing equivalence between paid holiday schemes, under Article 120 EEC [now 142 EC],
the social policy provisions of the EEC Treaty were essentially programmatic and proclamatory in nature.28 There was no universal statement of
the Communitys social values and no linkage with notions of fundamental social rights founded on international law.29 Rather, Article 117 EEC
stated, in a matter of fact way, that:30
Member States agree upon the need to promote improved working conditions and
an improved standard of living for workers, so as to make possible their harmonisation while the improvement is being maintained.
They believe that such a development will ensue not only from the functioning of
the common market, which will favour the harmonisation of social systems, but
also from the procedures provided for in this Treaty and from the approximation
of provisions laid down by law, regulation or administrative action.

Harmonisation was posited not as a tool for the attainment of social justice
but as a desirable outcome resulting from the operation of a common
market. Approximation measures, whether legislative or purely administrative, were only necessary to rectify distortions in the market, an implicit
reference to the facility of Article 100 EEC [now 94 EC] as a means of
adopting directives.
27
M Shanks, Introductory Article: The Social Policy of the European Communities (1977)
14 Common Market Law Review 375 at 383. For a critique of the counterpoint between competition and welfare, see Lord Wedderburn, Workers Rights: Fact or Fake? (1991) 13 Dublin
University Law Journal 1.
28
Although the Ohlin Report had made a case for these exceptions it is worth noting that
there was also pressure for their inclusion from the French who feared undercutting. Ohlin
found that in France womens pay was 91% of that of men, compared with 78% in Germany
and 66% in Britain. See B Hepple, Equality and Discrimination in Davies et al, n 5 above,
23759 at 241.
29
See B Hepple, Social Values and European Law [1995] Current Legal Problems 39 at
41.
30
My emphasis.

Social Policy in the Treaty of Rome 7

This essentially static view of Article 117 EEC was challenged by those
who believed that, on the basis of a purposive interpretation, it had the
capacity to empower the Community to act where social progress was
endangered by unfavourable economic developments. Schnorr contended
that the text of the first paragraph of Article 117 EEC:31
. . . does not plainly affirm social progress as a consequence of economic integration, but . . . contains an agreement between the Member States about the necessity
to promote such progress. This means, indeed, a contractual obligation on all
Member States to co-operate in achieving the Community purpose of social
progress.

This notion of a contractual obligation may have served to objectify attainable ends but it did not provide the means for the Community to act where
co-operation alone was insufficient. At the most, this leads to a supposition
that the Member States committed themselves to social progress by means
of a Community social policy.32 While Dubler has suggested that Article
117(1) EEC was not just a political declaration of intent but a legally
binding commitment,33 the European Court of Justice34 preferred a more
cautious approach, regarding Article 117 EEC as a guide for interpretation.
For example in Sloman Neptun35 the Court stated that:
Article 117 . . . is essentially in the nature of a programme. It relates only to social
objectives the attainment of which must be the result of Community action, close
co-operation between the Member States and the operation of the Common Market.

The programmatic nature of these social objectives did not mean that they
were deprived of legal effect, but rather they constituted an important aid
to interpretation of other provisions in the Treaty and of secondary legislation in the social field.36 In this sense social policy objectives were given
a subordinate role and were subsumed by the conditions of competition.37
Nonetheless, Article 117 EEC must be understood as a provision that was
31
G Schnorr, European Communities in R Blanpain (ed) International Encyclopaedia
for Labour Law and Industrial Relations (Kluwer, Deventer, 1980) para 60. Emphasis added.
Discussed by Hepple in Adams, n 15 above at 1819.
32
See E Vogel-Polsky, Legal Bases for European Employees Rights, ETUC Technical
Conference, Strasbourg, 12/13 Dec 1989. Cited by R Nielsen & E Szyszczak, The Social
Dimension of the European Community, 2nd edn (Handelshjskolens Forlag, Copenhagen,
1993) p 21.
33
W Dubler, Instruments in EC Labour Law in Davies et al, n 5 above, 15167 at 154.
34
Hereinafter the Court or the Court of Justice.
35
Cases C7273/91, Sloman Neptun Schiffahrts v Seebetriebsrat Bodo Ziesemer der
Sloman Neptun Schiffahrts [1993] ECR I887, para 25.
36
See Case 126/86, Zaera v Instituto Nacional de la Seguridad Social [1987] ECR 3697,
para 14.
37
Art 3(f) EEC [now 3(g) EC] provided for the institution of a system ensuring that
competition in the common market is not distorted. See S Simitis & A Lyon-Caen,
Community Labour Law: A Critical Introduction to its History in Davies et al, n 5 above,
122 at 57.

The Emergence of the Social Dimension

capable of operating to defend social standards and, in this sense, the provision that has replaced it, Article 136 EC, serves the same purpose. Hence,
Article 117 EEC amounted to a commitment to improvements in living
standards and working conditions to make possible their harmonisation
while the improvement is being maintained. In other words, there can be
no turning back from social standards. Similar non-retrogression clauses
have consistently featured in Community social policy directives.38
Article 118 EEC was intended to encompass these social objectives by
identifying a non-exhaustive catalogue of areas in the social field where
Member States were urged or obliged to co-operate with each other
without prejudice to other provisions in the Treaty. The listed areas were:
employment;
labour law and working conditions;
basic and advanced vocational training;
social security;
prevention of occupational accidents and diseases;
occupational hygiene;
the right of association and collective bargaining between employers and
workers.
The Member States were the key players with the Commission being consigned to the role of bystander, only serving as a point of contact making
studies, delivering opinions and arranging consultations. Therefore the
Commissions role was purely procedural. They could not impose any of
the results of their studies or consultations on the Member States and they
were powerless to act against national measures unless they contravened
other provisions in the Treaty.39 The remainder of the social policy provisions tended to confirm the secondary role of the Community institutions
vis--vis the Member States. For example, Article 122 EEC [now 145 EC]
placed an obligation on the Commission to include a separate chapter
on social developments within the Community in its annual report to the
European Parliament. In turn, the Parliament was allowed to invite the
Commission to draw up reports on any particular problems concerning
social conditions. Under Article 128 EEC [now 150 EC] the Council, acting
on a Commission proposal, had the responsibility of laying down general
principles for implementing a common vocational training policy capable
of contributing to the harmonious development both of the national
economies and of the common market.40
38
See the note by B Bercusson, European Labour Law in Context: A Review of the
Literature (1999) 5 European Law Journal 87 at 945.
39
See Cases C281/85, C283/85, C285/85 and C287/85, Germany and others v
Commission [1987] ECR 3203.
40
In practice the only immediate steps taken to advance this goal were a 1963 Council
Decision setting out 10 general principles and the setting up of an Advisory Committee, a
very meagre outcome. See P Venturini, 1992: The European Social Dimension (European
Communities, Luxembourg, 1989) p 16.

Social Policy in the Treaty of Rome 9

Article 119 EEC [now part of a wider Article 141 EC] stood out as the
only provision in the first chapter of the Title on Social Policy that placed
an express obligation on Member States to ensure by the first stage, 1962,
and subsequently maintain, the principle that men and women should
receive equal pay for equal work. In fact this period was extended to 1964.41
Moreover, when the Sullerot Report was issued to the Commission in
1972, it was found that progress had been extremely slow and there was
still widespread sex discrimination in remuneration and general working
practices in the Member States.42 Article 119 EEC was only revivified by a
fresh drive for social policy in the 1970s and, above all, by the determination of a Belgian air steward, Gabrielle Defrenne, who brought a series
of legal actions designed to bind the Member States to their equal pay
commitments.43
Even the obligation inherent within Article 119 EEC has to be read as
a non sequitur because the most striking feature of the social policy of the
Rome Treaty was not what it contained but what was absent. There was
no specific action programme and no binding timetable for the adoption of
certain matters.44 There was no common social policy to accompany the
common policies in the fields of, for example, commerce, agriculture or
transport.45 Social policy was not even listed as one of the activities of the
Community in Article 3 EEC, which referred only obliquely to the establishment of a European Social Fund to improve employment opportunities
and to encourage labour mobility. Most noticeable of all was the absence
of any direct or explicit means of adopting binding labour laws in the form
of directives or regulations for the specified purpose of fulfilling the
objectives in Article 117 EEC. Measures that impinged on social policy
as a consequence of market functioning could be adopted under Article
100 EEC [now 94 EC], or the provisions on the free movement of
services, Article 54(3)g EEC [now 44(3)g EC], or through recourse to the
general purpose clause in Article 235 EEC [now 308 EC]all avenues
pursued once a Social Action Programme was adopted in the 1970sbut
for the Communitys founders the anticipated social benefits were to
derive axiomatically from market mechanisms and not through legislative
means.46

41

Bulletin of the European Communities 1962/1, pp 79.

The Employment of Women and the Problems it raises in the Member States of the
European Community (European Commission, Luxembourg, 1972). See Hepple in Adams,
n 15 above, at 20. See generally, H Warner, EC Social Policy in Practice: Community Action
on Behalf of Women and its Impact in the Member States (1984) 23 Journal of Common
Market Studies 141.
43
Case 80/70, Defrenne v Belgian State I [1971] ECR 445; Case 43/75, Defrenne v Sabena
II [1976] ECR 455; Case 149/77, Defrenne v Sabena III [1978] ECR 1365.
44
See Betten, n 19 above at 108.
45
Arts 3(b) (d) and (e) EEC, respectively.
46
Spaak Report, n 25 above at 61. See Davies in McCarthy, n 21 above at 32425.
42

10 The Emergence of the Social Dimension

In the period between 1958 and 1972 the economic achievements of the
Community surpassed even the loftiest expectations of its founders and, as
living standards improved,47 there seemed little reason, and indeed there was
little pressure, at least until the spring of 1968,48 to replace benign neglect
with social activism.49

(3) Substantive Obstacles to the Integration of Social Laws

While what has been described so far might suggest that the development
of Community social law was delayed principally by the ineluctable logic
of prevailing economic liberalism combined with the formal problems
created by a limited Treaty base, this would only be a partial assessment
because the most intractable obstacles inhibiting social policy harmonisation, not just in the early stages but throughout the Communitys history,
have been, and remain, substantive not formalistic.50
Community employment law and social policy has been described as a
symbiosis of Community law and national laws with Member States jealously guarding their own systems and traditions while, on occasion, being
influenced when formulating policy at Community level, by national practices which seem particularly apt in a given situation.51 For example, equal
pay in the case of France, or, less successfully, the German system of
workers participation in companies, or, more recently, the Italian tradition
of autonomous social partners and the Danish model of enacting labour
law based, in part, on collective agreements.52
The substantive problem here is twofold. First, what Kahn-Freund
described as the transplantation of labour law is extremely difficult
because:53
. . . variations in the organisation of power between one country and another can
prevent or frustrate the transfer of legal institutions, and turn the use of the comparative method into an abuse.

In particular, the diverse and heterogeneous nature of both individual and

47
In the first decade of the Community the GDP of the Member States increased at a rate
of 5% per year, twice the level in the US and Britain. For discussion, see J Pinder, European
Community: The Building of a Union, 2nd edn (OUP, Oxford, 1995) pp 704.
48
Student unrest in Paris and the growth of protest movements in Western Europe were a
reflection, in part, of a concern about growing inequalities in an era of economic growth.
49
See H Mosley, The social dimension of European integration (1990) 129 International
Labour Review 147 at 14950.
50
See Hepple in Adams, n 15 above at 227.
51
B Bercusson, European Labour Law, n 22 above at 810.
52
Ibid. This only applies to Danish rules concerning blue collar workers.
53
O Kahn-Freund, On the Uses and Misuses of Comparative Law (1974) 37 Modern Law
Review 1 at 13. For discussion, see B Fitzpatrick, Community Social Law after Maastricht
(1992) 21 Industrial Law Journal 199 at 20912.

Social Policy in the Treaty of Rome 11

collective labour law systems has mitigated against the harmonisation of
substantive rules and tended to shift the focus of Community activity
towards flexible procedural measures, most noticeably in the sensitive area
of collective labour relations for, as Kahn-Freund added, individual labour
law lends itself to transplantation very much more easily . . . than collective
labour law.54 While Kahn-Freund was describing the problems in transplanting law from one national legal system to another, his central thesis is
equally applicable in the supranational context of Community law. This is
because the principal legal instruments used to give effect to Community
social policy are directives that require separate implementation in each of
the national legal orders.
Nielsen has explained how the position has been further complicated by
the expansion of the Community from the founding members, who were
all broadly of the Romano-Germanic legal family, where legislation is the
dominant method of regulating labour law, to include also the Anglo-Saxon
and Nordic legal families, which have traditionally relied on a voluntary
approach with only a limited amount of legal regulation, but a quite different appreciation of the status of collective labour law agreements.55 It
follows that, while the Community has developed its own legal system,
reflecting the combined legal heritage of the Member States, it has to
operate in harmony with national and sub-national legal systems and
respect their diverse labour law traditions. Directives have to be drafted to
take account of this diversity and enforcement is dependent upon national
procedural rules that are often, in cases of labour law dispute resolution,
localised and sectoral. Indeed, the desire to respect diverse national
approaches to collective labour law questions has led to an even more
abstentionist policy today than at the time of the foundation of the Community, with the total exclusion of laws on pay, the right of association,
the right to strike or the right to impose lock-outs from the revised Social
Chapter.56
Second, when considering proposals affecting both individual and collective labour law, Member States face national pressures from trade unions
and employers organisations, often linked to governing party groupings,
making them sensitive to regulation at Community level which may tip the
industrial relations balance.57 It is for this reason that the Community has,
from the outset, erred towards resolving social policy matters at national
54

Ibid at 21.
See R Nielsen, The Contract of Employment in the Member States of the European Communities and in European Community Law (1990) 33 German Yearbook of International
Law 258 at 259. In the Community of 15 there are, according to Nielsen, 10 countries belonging to the Romano-Germanic system (Germany, Austria, France, Belgium, Holland,
Luxembourg, Spain, Portugal, Italy and Greece); 3 belong to the Nordic system (Denmark,
Finland and Sweden); and 2 to the Anglo-Saxon system (UK and Ireland).
56
Art 137(6) EC.
57
See Hepple in Adams, n 15 above at 26.
55

12 The Emergence of the Social Dimension

or workplace level and has only introduced proposals for social laws as a
last resort. There was no practical reason to write the principle of subsidiarity into the provisions on social policy at Maastricht because it has
always been the governing rule. The extent to which the gradual removal,
over 40 years, of the formal barriers to social policy legislation has created
a new dynamic for a drive towards a greater homogeneity of substantive
social laws based on the principle of social justice will be a key question
for consideration later in this book.58

III SOCIAL POLICY IN THE WIDER TREATY CONTEXT

As a counterpoint to the dearth of explicit social policy content in the EEC

Treaty, one factor considered by both Ohlin and Spaak was how other Community policies would interact with social policy goals and contribute
towards a harmonious development of economic activities?59 While free
movement of labour was widely regarded as a positive step, particularly in
combating unemployment, it was feared that free trade might restrict the
Communitys competence to legislate in the social arena and run counter
to the national labour law regimes of the Member States.60
Free movement of labour and co-ordination of social security systems, as
set out in Articles 3942 EC [ex 4851 EEC], was regarded by the Committee of Experts as a boon for workers living standards arising from the
more rapid growth of productivity to be expected as a result of a more
international division of labour.61 The rationale behind these provisions
was economic rather than social, to free up the labour market with migrant
workers who were regarded as human capital or factors of production
within the common market. The wording of Article 39 EC [ex 48 EEC]
emphasises the scope of the principle of non-discrimination62 in this context
by making it clear that free movement:
58
Albert Thomas, the first Director of the ILO, considered that social justice meant much
more than the removal of social injustice. It meant a possible policy through which the individual might attain his political, economic and moral rights. E Phelan, Yes and Albert Thomas
(Cresset Press, London, 1949) p 242. Social justice is an evolving notion and now encompasses a growing need for security and well-being . . . accompanied by a desire for more
freedom, more equality and a greater measure of participation in the management of society,
as well as for better quality of life and a substantial improvement in working conditions,
Valticos & von Potobsky, n 9 above, p 26.
59
Art 2 EEC.
60
See P Davies, Market Integration and Social Policy in the Court of Justice (1995) 24
Industrial Law Journal 49 at 50.
61
The Ohlin Report, n 5 above at 112.
62
Art 6 EEC [now 12 EC] has established the general principle that: Within the scope of
application of this Treaty, and without prejudice to any special provisions contained therein,
any discrimination on the grounds of nationality shall be prohibited.

Social Policy in the Wider Treaty Context 13

. . . shall entail the abolition of any discrimination based on nationality between
workers of the Member States as regards employment, remuneration and other
conditions of work and employment.

Articles 40 and 42 EC [ex 49 and 51 EEC] provide legal bases for Community legislation. Regulations have been adopted to ensure, inter alia,
equality of treatment in employment between nationals and Community
free movers, derivative rights for the family members of migrant workers,
social advantages in the host State,63 and effective co-ordination of social
security systems.64 These policies are of direct social import and have been
interpreted broadly by the Court.65 Thus Community legislation and case
law has explicitly recognised that workers have independent needs and are
not mere units of production,66 but these policies are still primarily motivated by economic considerations intended to neutralise living and working
conditions as between Community nationals with any consequential raising
of social standards being viewed as a desirable by-product. Moreover, while
directives have been the predominant legislative form for binding social
policy measures because they offer flexibility as to the choice of form and
methods of implementation, the neutralising non-discriminatory goals of
free movement measures lend themselves to regulations which are directly
applicable in all Member States,67 precisely because they are intended to be
transnational common market measures that may have beneficial social
consequences but are not, strictly speaking, instruments concerned with the
social policies of individual Member States.68
Ohlin was well aware of the potential restraints on the development of
an activist Community social policy in a free trading area. The Committees starting point had been to ask whether it would be more difficult to
improve social standards once the more vigorous competition of freer
markets had come into force?69 The Committee concluded that, whereas
some harmonisation of social policy would be consistent with such an
63

Reg 1612/68/EEC, OJ 1968, L257/2. In particular Arts 7, 10, 11, and 12.
Reg 1408/71/EEC, OJ 1971, L149/2.
65
For example, in Case 44/65, Maison Singer [1965] ECR 965 at 971, the Court asserted
that freedom of movement of workers is a right that is not strictly limited by the requirements
of the common market. In Case 53/81, Levin [1982] ECR 1035, at para 13, the Court applied
Art 48 EEC [now 39 EC] in such a way as to encompass part-time workers on the basis that
such employment constitutes, for a large number of persons, an effective means of improving their living conditions.
66
See C Barnard, EC Employment Law, 2nd edn (OUP, Oxford, 2000) pp 11112.
67
Directives and regulations are distinguished in Art 249 EC [ex 189 EEC].
68
J Kenner, Citizenship and Fundamental Rights: Reshaping the European Social Model
in J Kenner (ed) Trends in European Social Policy (Dartmouth, Aldershot, 1995) 384 at
1011. On free movement of workers and social security, see P Watson, Social Security Law
of the European Communities (Mansell, London, 1980) and Barnard, EC Employment Law,
n 66 above, ch 5.
69
The Ohlin Report, n 5 above at 112.
64

14 The Emergence of the Social Dimension

approach, it was at national level where social standards should be raised
to match growth in productivity.70
In practice the Court has tended to be cautious when presented with
opportunities to interfere with national labour laws even in situations where
a potential conflict may arise with other parts of the EC Treaty. For
example, Article 28 EC [ex 30 EEC] provides that: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. In Dassonville71 the Court defined measures
having equivalent effect as encompassing all trading rules enacted by
Member States which are capable of hindering, directly or indirectly, actually or potentially intra-Community trade.72 It has been suggested that a
literal interpretation of this formula would mean that these prohibited measures might include labour laws and employment regulations that affect
the cost of production, such as rules on working time or operating hours
which have a restrictive effect on trade.73 However, while Dassonville suggested unbridled economic liberalism, the Court swiftly provided a counterweight in Cassis de Dijon74 where, in the case of indistinctly applicable
measures, the aim of the State was not to restrict imports but to pursue
public interest objectives.75 Such a wide-ranging approach to the justification of indirectly discriminatory rules was capable of application beyond
the limited exceptions in Article 30 EC [ex 36 EEC].76
For example, in Oebel77 the Court upheld national rules restricting night
working in bakeries on the grounds that such requirements constituted a
legitimate part of economic and social policy, consistent with the objectives
of public interest pursued by the Treaty.78 The Court noted that the prohibition was designed to improve working conditions in a manifestly sensitive industry and was consistent with similar rules in several Member
States and a specific ILO Convention.79 Oebel was applied in Torfaen80
where the Court held that the same consideration must apply as regards
70

The Ohlin Report, at 11213.

Case 8/74 [1974] ECR 837.
Ibid para 5.
73
Deakin, n 5 above at 71.
74
Case 120/78, Rewe Zentrale v Bundesmonopolverwaltung fr Branntwein (Cassis de
Dijon) [1979] ECR 649.
75
M Poiares Maduro, We, The Court: The European Court of Justice and the European
Economic Constitution (Hart, Oxford, 1998) p 61.
76
Specifically: public morality, public policy or public security; the protection of health and
life of humans, animals or plants; the protection of national treasures possessing artistic or
archaeological value; or the protection of industrial or commercial property. Such restrictions
must not constitute a means of arbitrary discrimination or a disguised restriction on trade
between Member States.
77
Case 155/80, Oebel [1981] ECR 1993.
78
Ibid para 12.
79
Ibid paras 1213. ILO Convention No 20 of 1925 which, subject to certain exceptions,
prohibits the production of bread, pastries or similar products during the night.
80
Case 145/88, Torfaen BC v B&Q [1989] ECR 765, para 14.
71
72

Social Policy in the Wider Treaty Context 15

national rules governing the opening hours of retail premises because such
rules reflect certain political and economic choices in so far as their purpose
is to ensure that working and non-working hours are so arranged as to
accord with national or regional socio-cultural characteristics rather than
to govern the patterns of trade between Member States.81
Subsequently, the Court has changed tack and ruled in Keck and
Mithouard82 that the application to products of other Member States of
national rules restricting or prohibiting certain selling arrangements falls
outside the Dassonville formulation, subject to the qualification that such
national rules must apply to all affected traders operating within the
national territory and must affect in the same manner, in law and in fact,
the marketing of domestic and imported products.83 Keck has been specifically applied in the Sunday trading context.84 Post-Keck and Mithouard the
Court has been primarily concerned with the link between measures and
intra-Community trade rather than the reasons behind the public policies
of Member States. Measures that affect the marketing of products rather
than their composition are deemed less likely to affect imports and to meet
the requirements for factual and legal equality.85
One case that illustrates the delicate balance between the free movement
of economic actors and national social policies is Rush Portuguesa.86 The
Court was asked to rule on the validity of a French law prohibiting the
recruitment of foreign workers without a work permit. On the one hand,
the Court was bold, holding that rules that adversely affected Portuguese
sub-contractors in the construction industry based outside of France were
capable of violating Article 49 EC [ex 59 EEC] on the free movement of
services.87 On the other hand, the Court held that such activities could be
regulated by more protective French law rather than the more limited
Portuguese regulations so long as France extended its labour law, including
collective agreements, to any person who is employed, even temporarily,
within their territory, no matter in which country the employer is established.88 Such a solution would prevent the disapplication of national
labour laws while ensuring compliance with Community free movement
obligations, an approach now embodied in the Posted Workers Directive89
81

Ibid para 14.

Joined Cases C267268/91, Keck and Mithouard [1993] ECR I6097.
83
Ibid para 16.
84
Joined Cases C69/93 and C258/93, Punto Casa and PPV [1994] ECR I2355.
85
See S Weatherill & P Beaumont, EU Law, 3rd edn (Penguin, London, 1999) p 612.
86
Case C113/89 Rush Portuguesa Ltda v Office Nationale dImmigration [1990] ECR 1417.
87
Ibid para 12.
88
Ibid para 18.
89
Directive 96/71/EC concerning the posting of workers in the framework of the provision
of services, OJ 1996, L18/1. For discussion, see P Davies, Posted Workers: Single Market or
Protection of National Labour Law Systems? (1997) 34 Common Market Law Review 571;
E Kolehmainen, The Directive Concerning the Posting of Workers: Synchronization of the
Functions of National Legal Systems (1998) 20 Comparative Labor Law & Policy Journal 71.
82

16 The Emergence of the Social Dimension

and applied by the Court in respect of national rules concerning minimum
wages90 and paid leave.91
The Courts tentative approach when scrutinising the compatibility of
national social laws with Community free movement rules is in tune with
the political caution of the Commission and the Council in this respect. In
particular, although Articles 96 and 97 EC [ex 101 and 102 EEC] offer a
basis for action to eliminate distortions of competition caused by national
laws, the opportunities offered by these provisions have not been fully
explored, even though the Spaak Report had envisaged the need to take
steps to combat specific distortions arising from such issues as differences
in the financing of social security systems and working conditions.92 In practice the Communitys approach to differences between the social laws of
the Member States, all of which are capable of producing distortions of
competition, has been pragmatic. Differences in labour standards may affect
market access but it does not necessarily follow that they will create distortions, or are discriminatory, in the sense that they would prevent access
to domestic markets by design or effect.93
In the Ohlin Report a distinction was drawn between variations in different countries in terms of wages and social conditions that broadly reflect fluctuations in productivity, and variations in the same country that might arise
by way of unfair competition where foreign producers have to compete with
subsidised national producers.94 The competition rules applying to undertakings indicate a Community response that is consistent with this approach.
Article 86(1) EC [ex 90(1) EEC] applies the competition rules to public
undertakings and undertakings to which Member States grant special or
exclusive rights. Member States shall neither enact nor maintain in force any
measure contrary to the principle of non-discrimination or the competition
provisions in Articles 8189 EC [ex 8594 EEC]. Article 86(1) EC [ex 90(1)
EEC] must be read in conjunction with Article 86(2) EC [ex 90(2) EEC],
which determines whether Member States are permitted to confer exclusive
rights on undertakings providing a service of general economic interest.95
90

Case C164/99, Portugaia Construoes Lda [2002] ECR I (nyr) judgment of 24 Jan 2002.
Cases C49/98 and C7071/98, Finalarte Sociedade de Construo Civil Lda and others
v Urlaubs- und Lohnausgleichskasse der Bauwirtschaft and Cases C50/98, C5254/98,
C6869/98, Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v Amilcar Oliveira Rocha
and others [2001] ECR I7831.
92
Spaak Report, n 25 above at 23334. See Deakin, n 5 above at 7980. An explicit reference from a national court based on Art 234 EC [ex 177 EEC] would, however, oblige the
Court to consider the scope of these provisions.
93
See further, P Syrpis, The Integrationist Rationale for European Social Policy in J Shaw
(ed) Social Law and Policy in an Evolving European Union (Hart, Oxford, 2000) 1730 at
26; Deakin, n 5 above at 745.
94
The Ohlin Report, n 5 above at 1045. See Davies in McCarthy, n 21 above at 322.
95
Such services shall be subject to the rules contained in this Treaty, in particular the rules
on competition, insofar as the application of such rules does not obstruct the performance, in
law or in fact, of the particular tasks assigned to them. The development of trade must not
be affected to such an extent as would be contrary to the interests of the Community.
91

Social Policy in the Wider Treaty Context 17

Article 87(1) EC [ex 92(1) EEC] explicitly outlaws state aids that distort or
threaten to distort competition as incompatible with the common market
because they favour certain undertakings and certain goods. However, aid
having a social character granted to individual consumers shall be compatible with the common market so long as it is non-discriminatory as to the
origin of the products concerned.96 Further, aid to promote the economic
development of areas where the standard of living is abnormally low or
where there is serious underemployment may be deemed compatible with the
common market.97
As with the provisions on free movement, the Court has tended to apply
the rules on public undertakings and state aids with less than full rigour
when interpreting labour law rules that may appear to create distortions or
have the potential to be anti-competitive. For example, in KirsammerHack98 a German regulation that exempted employers with five or fewer
employees from liability for unfair dismissal was held not to amount to a
state aid. Such a measure did not entail any direct or indirect transfer of
State resources to those businesses but derived solely from the legislatures
intention to provide a specific legislative framework for working relationships in small businesses and to avoid imposing on those businesses financial constraints that might hinder their development.99 Where there has been
clear abuse, however, the Court has been prepared to act. Hence, in Porto
di Genova100 national rules that gave the state exclusive rights to organise
dock work in a way that ensured that work was offered only to Italian
nationals were found to be in violation of Article 86(1) EC [ex 90(1) EEC].
The Court was not prepared to accept the social argument that the scheme
was the most effective means of preventing the casualisation of labour.101
The Court was not, however, immune to such arguments. Rather, the Court
was recognising the fact that the Treaty does not allow social arguments to
prevail where there is blatant anti-competitive behaviour by a Member
State.
96
Art 87(2)(a) EC [ex 92(2)(a) EEC]. In all cases there is an obligation on the Member
State to notify the Commission of the proposed aid. The Commission has the power to abolish
or alter such aids (Art 88(2) ECex 93(2) EEC). Note that nationalisation per se is perfectly
lawful under Art 295 EC [ex 222 EEC]. Nationalised entities are just as compatible with
private enterprise on the large market as they are on a single nation, Monnet, n 3 above at
206. Thus the state aids rules cover both the public and private sectors.
97
Art 87(3)(a) EC [ex 92(3)(a) EEC].
98
Case C189/91, Kirsammer-Hack v Sidal [1993] ECR I6185.
99
Ibid paras 16 and 17. See T Hervey, Small Business Exclusion in German Dismissal
Law (1994) 23 Industrial Law Journal 267. See further, Cases C72/91 and C73/91, Sloman
Neptun Schiffahrts v Seebetriebsrat Bodo Ziesemer der Sloman Neptun Schiffahrts [1993]
ECR I887.
100
Case C179/90, Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991]
ECR I5889. See also, Case 31/87, Beentjes v Minister van Landbouw en Visserij [1988] ECR
4635; and Case C41/90, Hfner and Elser v Macrotron [1991] ECR I1979. For discussion,
see C Barnard, EC Social Policy in P Craig & G de Brca (eds) The Evolution of EU Law
(OUP, Oxford, 1999) 479516 at 49495.
101
See Deakin, n 5 above at 75.

18

The Emergence of the Social Dimension

More recently the Court has had to address the more fundamental issue
of the compatibility of national social protection systems and supplementary pension schemes with Community competition and free movement law.
While the Courts general approach is not to interfere with the autonomy
of national social systems,102 there has been an increase in litigation designed
to challenge national schemes for social insurance,103 health care104 and pensions.105 In Poucet and Pistre106 the Court held that the concept of an undertaking, which is referred to in Articles 81, 82 and 86 EC [ex Articles 85,
86 and 90 EEC]107 did not encompass organisations responsible for the
management of compulsory social security schemes established in accordance with the principle of social solidarity on the basis that it was
necessary for such schemes to be managed by a single organisation with
compulsory affiliation.108 The Courts reasoning was based on an assumption that such systems cannot be effectively provided by private market
actors and do not constitute economic activity as their aims are social not
economic.109
By contrast in Albany International110 the Court distinguished Poucet and
Pistre when asked to determine whether a compulsory sectoral pension fund
102
See, for example, Case 238/82, Duphar [1984] ECR 523, para 16; Cases C159160/91,
Poucet and Pistre v AGF and Concava [1993] ECR I637, para 6; Case C70/95, Sodemare
SA and others v Regione Lombardia [1997] ECR I3395, para 27. Discussed by T Hervey,
Social Solidarity: A Buttress Against Internal Market Law? in Shaw, n 93 above 3147.
103
Poucet and Pistre, ibid.
104
Sodemare, ibid. Case C120/95, Decker v Caisse de Maladie des Employs Privs [1998]
ECR I1831; Case C158/96, Kohll v Union des Caisses de Maladie [1998] ECR I1931.
105
Case C244/94, Fdration Franaise des Socits dAssurances (FFSA) [1995] ECR
I4013; Cases C430 and C431/93, Van Schijndel and Van Veen v Stichting Pensioenfonds
voor Fysiotherapeuten [1995] ECR I4705; Case C67/96, Albany International BV v
Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I5751; Cases C115117/97,
Brentjens Handelsonderneming BV v Stichting Bedrijfspensioenfonds voor de Handel in
Bouwmaterialen [1999] ECR I6025; Case C219/97, Drijvende Bokken v Stichting
Pensioenfonds voor de Vervoer-en Havenbedrijven [1999] ECR I6121.
106
Cases C159160/91, n 102 above.
107
Art 81 EC [ex 85 EEC] sets out a variety of agreements, decisions and concerted practices involving undertakings which may affect trade between Member States and which have
as their object or effect the prevention, restriction or distortion of competition within the
common market. Art 82 EC [ex 86 EEC] bites when undertakings behave in such a way as
to abuse their dominant market position. Art 82 EC can operate in conjunction with Art
86 EC [ex 90 EEC] where the abuse arises because of special or exclusive rights granted to
undertakings by a State.
108
Cases C159160/91, n 102 above, para 17. Equally the concept of an undertaking
does not apply, individually or collectively, to workers who, because of their subordinate
position in the employment relationship, lack the necessary independence required to constitute an undertaking for the purpose of competition rulesCase C22/98, Becu [1999] ECR
I5665, paras 2037. For comment, see P Nihoul, Do workers constitute undertakings for
the purpose of the competition rules? (2000) 25 European Law Review 408.
109
See Hervey, in Shaw, n 93 above at 44.
110
Case C67/96, n 105 above. See also, Cases C115117/97, Brentjens, n 105 above
and Case C219/97, Bokken, n 105 above. Applied in Case C222/98, van der Woude v
Stichting Beatrixoord [2000] ECR I7111; and Cases C180184/98, Pavlov and others v
Stichting Pensioenfonds Medische Specialisten [2000] ECR I6451. For discussion, see

Social Policy in the Wider Treaty Context 19

established by a collective agreement between the employers and trade
unions in the Dutch textile industry was in conformity with Community
competition law. Notwithstanding the social aim of the fund and its manifestations of solidarity,111 the Court held that it was not deprived of its
status as an undertaking for the purposes of Articles 81, 82 and 86 EC
[ex Articles 85, 86 and 90 EEC] because the fund itself determined the
amount of the contributions required and benefits provided while operating in accordance with the principle of capitalisation.112 Unlike compulsory
social security schemes, the amount of the benefits provided by the fund
depended on the financial results of its investments.113 However, having
found that the fund constituted an economic activity,114 and was therefore
an undertaking, the Court once again struck a balance. While it was possible for such funds to abuse their dominant position contrary to Article
82 EC [ex 86 EEC]115 and to fall within the purview of competition law as
undertakings granted special or exclusive rights to operate the fund as a
service of general economic interest under Article 86 EC [ex 90 EEC],116
the granting of those exclusive rights was justified as a measure necessary
for the performance of a particular social task of general interestthe provision of social protection for all workerswith which that fund had been
charged.117 Moreover, it was necessary for the fund to be compulsory
because otherwise the viability of the pension fund would be jeopardised if
younger workers in good health were to seek more advantageous terms
from private insurers.118
In perhaps the most remarkable passage in Albany, the Court rejected a
separate line of argument based on the notion that collective agreements
establishing the fund constituted an agreement between undertakings
operating in the sector concerned, contrary to Article 81(1) EC [ex 85(1)
EEC].119 Albany contended that this was a form of collusion that distorted
competition, implying an antitrust conspiracy of the kind recognised as an
exception in the US to the general principle in both legislation and case law

R Van den Bergh and P Camesasca, Irreconcilable Principles? The Court of Justice Exempts
Collective Labour Agreements from the Wrath of Antitrust (2000) 25 European Law Review
492; S Evju, Collective Agreements and Competition Law. The Albany Puzzle, and van der
Woude (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 165.
111

Ibid para 85.

Ibid para 81. See also, Case C244/94, FFSA, n 105 above.
Ibid para 82. See also, the opinion of AG Jacobs, para 343.
114
Ibid para 84. In particular, each fund engaged in an economic activity in competition
with insurance companies.
115
Ibid para 93.
116
Ibid para 111.
117
Ibid paras 88123
118
Ibid para 108.
119
Ibid paras 5463.
112
113

20 The Emergence of the Social Dimension

that collective labour agreements have immunity from competition law.120
The Courts response was stark and direct. While acknowledging that
certain restrictions of competition are inherent in collective agreements
they observed that the social policy objectives pursued by such agreements
would be seriously undermined if management and labour were subject to
Article 81(1) EC when seeking jointly to adopt measures to improve conditions of work and employment.121 The Court took account of the whole
scheme of the Treaty, paying particular attention to social provisions added
to the original Treaty by later amendments122 including, inter alia, Article
1 of the Agreement on Social Policy123 [now revised and incorporated
in Article 136 EC] which lays down the broad social policy objectives,124
Article 3(j) [ex 3(i)] EC which now refers to a policy in the social sphere
among the Communitys activities, and the revised Article 2 EC which sets
the Community a goal of a high level of employment and social protection. The Court concluded that collective agreements reached in pursuit
of such objectives were outside the scope of Article 81(1) EC.125
Hence, notwithstanding the unequivocal language of Article 81(1) EC,
collective agreements are exempt from competitive assessment under Community law so long as they pursue social objectives. In this context, labour
law, which gives primacy to redistribution based on recognition of unequal
power relationships, is preferred to competition law, which seeks to allocate resources efficiently based on an assumption of equality between
parties.126 Such an outcome is deemed tolerable because of the gains in terms
of economic efficiency and social concord that arise from harmonious
industrial relations founded on collective agreements.
120
Discussed by AG Jacobs at paras 97107 of his opinion. In the Unites States the legislative immunity of collective agreements can be traced back to the Sherman Act, 1870 and
the Clayton Act, 1914. The Supreme Court has most recently upheld the antitrust immunity in Brown v Pro Football [1996] 116 USSC 2116. The main concern of both legislators
and the courts has been to preserve the autonomy of the parties but immunity is not unlimited. Where the parties conspire to eliminate competitors from the industry the Supreme
Court has been prepared to intervene: United Mine Workers of America v Pennington [1965]
381 US 657. After completing a comparative assessment of the national laws of both the US
and the Member States of the EU, the AG advised that there was limited antitrust immunity
for collective agreements between management and labour concluded in good faith on core
subjects of collective bargaining such as wages and working conditions which do not directly
affect third markets and third parties (para 194). He concluded that the agreement in question went beyond these limits and fell within Art 81(1) EC but it did not restrict competition
because the decision to make the scheme compulsory was made separately by the State (paras
27494 of the opinion).
121
Judgment, para 59.
122
Ibid paras 5458.
123
The Agreement, which applied to all Member States except the UK, was annexed to
Protocol No 14 on Social Policy, annexed to the EC Treaty by the Treaty on European
Union (TEU), 1993.
124
Art 136 EC is the successor provision to Art 117 EEC.
125
Ibid para 60.
126
See Van den Bergh & Camesasca, n 110 above at 502.

Social Policy in the Wider Treaty Context 21

In later chapters we will trace the amendments to the social provisions
in the Treaty that influenced the Court in Albany, but it is important to
note at this stage that, while the Courts judgment drew heavily on these
Treaty changes and expressed itself in strikingly clear language, its approach
was broadly consistent with its earlier case law, showing awareness not only
of the national sensitivities involved, specifically the autonomy of the social
partners in the area of industrial relations, but also the fine balance between
the Communitys economic and social aims. Indeed, it was to rectify the
formal imbalance in the methods available to fulfil its economic and social
objectives arising from the strictly limited social provisions in the Treaty of
Rome that more substantive social policies were proposed in the Communitys first Social Action Programme of 1974.

2
The Communitys New Deal
I A HUMAN FACE FOR THE COMMUNITY: THE FIRST SOCIAL
ACTION PROGRAMME

HE PERIOD FROM the 1950s through to the early 1970s is often

described as the Communitys golden age when a rapid rise in rates
of growth and a corresponding increase in overall living standards
appeared to vindicate the central tenets of the automatic convergence theory
expounded in the Spaak Report and crystallised in Article 117 EEC.1 This
metaphysical approach to the development of the Community was perhaps
the most remarkable feature of the post-war years when man appeared to be
achieving an unprecedented mastery over nature2 in a Kantian perfect civic
association.3 To the rational mind the harnessing of European resources in a
climate of peace meant inevitable economic and social convergence. By the
late 1960s, however, there were undercurrents of dissent that began to challenge these cosy assumptions. In particular, a new generation, born after the
Second World War, were expressing themselves in reaction against the
Vietnam War and social inequality. The Paris Spring of 1968 had a powerful impact on Europes political leaders and drew their attention to the
increasing reality that the benefits of the boom were being unevenly spread
with many groups still excluded from the labour market. For the first time
they began to question the raison dtre of the Communitys social policy.
At the Hague European Council in December 1969 the West German
Chancellor, Willy Brandt, submitted a memorandum calling for coordination of economic integration with social harmonisation in order to give

1
Improved working conditions and living standards will ensue from the functioning of
the common market. My emphasis. See S Deakin, Labour Law as Market Regulation: the Economic Foundations of European Social Policy in P Davies, A Lyon-Caen, S Sciarra
& S Simitis (eds) European Community Labour Law: Principles and Perspectives (Clarendon
Press, Oxford, 1996) 6293 at 69 and 84. On the golden age, see S Marglin & J Schorr
(eds) The Golden Age of Capitalism: Reinterpreting the Postwar Experience (Clarendon Press,
Oxford, 1992).
2
J Monnet, A Ferment of Change (1962) 1 Journal of Common Market Studies 203 at
203.
3
F von Krosigk, A Reconsideration of Federalism in the Scope of the Present
Discussion on European Integration (1970) 9 Journal of Common Market Studies 197 at
198200.

24 The Communitys New Deal

the Community a human face which could be understood by its citizens.4
This demand challenged the hitherto unassailable reliance on market mechanisms and echoed Roosevelts New Deal.5 Community social policy was
no longer seen as passive. It was to be attuned to Marshalls classic sociological view that social policies are necessary to modify the economic system
in order to achieve results that the economic system would not achieve on
its own and, in doing so, Community social policy was to be guided by
values other than those determined by open market forces.6 As Michael
Shanks, a former Director-General for Social Affairs at the Commission,
explained several years later:7
The Community had to be seen to be more than a device to enable capitalists to
exploit the common market; otherwise it might not be possible to persuade the
peoples of the Community to accept the disciplines of the market. The common
market had to evolve into a genuine Community, a Community with a human face,
which would be able to command the loyalties of its citizens, strong enough to resist
the centrifugal forces of nationalism and sectional pressures.

The expansion of the Community from six to nine Member States from
1973 added a fresh dynamic to this evolutionary process.8 In a reworking
of Roosevelts formula, the preamble to the final declaration of the Paris
Summit in October 1972 proclaimed that:9
Economic expansion is not an end in itself. Its firm aim should be to enable disparities in living conditions to be reduced. It must take place with the participation
of all Social Partners. It should result in an improvement of the quality of life as
well as standards of living.

It was agreed to establish a Social Action Programme in 1974 as a means

of fulfilling this bold vision but without any pretence that the Treaty powers
would be strengthened. Nevertheless, this was an important turning point

4
See M Wise & R Gibb, Single Market to Social Europe: The European Community in the
1990s (Longman, Harlow, 1993) pp 13132.
5
As Roosevelt famously declared to the 1941 ILO Conference: economic policy can no
longer be an end in itself. It is merely a means for achieving social justice. Rec Proc Conf
1941, p 158.
6
See T Marshall, Social Policy (Hutchinson, London, 1975) p 15. For discussion, see T
Hervey, European Social Law and Policy (Longman, Harlow, 1998) ch 1; G Majone, The
European Community Between Social Policy and Social Regulation (1993) 31 Journal of
Common Market Studies 153.
7
M Shanks, Introductory Article: The Social Policy of the European Communities (1977)
14 Common Market Law Review 375 at 378. Shanks was Director-General from June 1973
to Jan 1976.
8
The new members were Denmark, Ireland and the UK. Norway had also applied but
a referendum in 1972 produced a No vote. The well developed social policies in Denmark
and Norway and the need to secure them after accession was another important factor.
See A Sandler, Players and Process: The Evolution of Employment Law in the EEC (1985) 7
Comparative Labour Law Journal 1 at 34.
9
Summarised in Bulletin of the European Communities Supplement 2/74, p 14.

The 1974 Social Action Programme

25

because for the first time the Member States declared that they attached as
much importance to vigorous action in the social field as to the achievement of the economic and monetary union.10 Thus, notwithstanding the
inadequate powers available under the Treaty, the Commission now had
a clear mandate to rely on existing Treaty provisions, both Article 100 EEC
[now 94 EC], allowing for Common Market approximation measures,11
and, where necessary, the gap-filling general purposes clause in Article 235
EEC [now 308 EC],12 as a basis for proposing legislation to harmonise
social policies.13 Such a programme could only be carried through when
there was unanimity in the Council of Ministers under these Treaty
provisions.
The Social Action Programme (SAP) was eventually adopted by way of
a Council Resolution in January 197414 based on the Commissions proposals.15 The SAP strove to ensure that social objectives should be a constant concern of all Community policies in order to overcome problems of
inequalities and of the unacceptable by-products of growth which might
jeopardise the rhythm of growth itself in face of the social pressures and
resistance it generates.16 This fresh drive for social progress was part of a
determined, but pragmatic, attempt to transform the Community from an
economic to a political union by the end of the decade.17
A set of bold objectives was presented:18 full and better employment;
improvement of living and working conditions; and greater participation
of workers and employers in the economic and social decisions of the Community. In practice the legislative programme fell far short of expectations
not only because of the formal limitations of the Treaty bases, but also for
substantive reasons, including the underlying problems considered earlier
and, more immediately, by a serious economic recession which undermined
the political will that had existed in favour of an activist social programme
and restricted the action taken, at least outside the equalities field. Moreover, the Council Resolution setting out the SAP was a form of influential
but non-binding soft law. It was a manifesto that would be adhered to, in
whole or part, only so long as there was the political will to apply it for
10

Ibid.
Art 94 EC provides for the issuing of approximation directives which directly affect the
establishment and functioning of the common market.
12
Art 308 EC provides for appropriate measures necessary to obtain one of the objectives
of the Community and this Treaty has not provided the necessary powers.
13
Bulletin of the European Communities Supplement 2/74, p 14.
14
OJ 1974, C13/1.
15
Submitted to the Council on 25 Oct 1973. Reproduced in Bulletin of the European
Communities Supplement 2/74, pp 1335.
16
Ibid p 13.
17
As agreed at the Paris Summit on 17 Oct 1972. For an interesting account by one of the
leading participants, see E Heath, The Course of My Life (Hodder & Stoughton, London,
1998) pp 38795.
18
Bulletin of the European Communities Supplement 2/74, p 15.
11

26 The Communitys New Deal

the purposes of supporting binding legislative proposals that might emanate
from the Commission.19
The legislative and programmatic action that followed fell broadly into
four areas:
employment protection and the working environment;
equality between women and men;
employee participation; and
employment creation through vocational training and the European
Social Fund.
In the following sections an attempt will be made to address key elements
of the development of social policy under this programme in the period
leading up to the Single European Act of 1987. There will be a focus on
four main areas:
(1) Partial harmonisationthe legislative programme of the Commission
in the area of employment protection.
(2) The principle of equalitythe pivotal role of the Court of Justice in
filling gaps left by the Community legislator.
(3) Harmonisation of technical standardsthe first Framework Directive
on health and safety at work.
(4) Attempts to combine social dialogue at Community level with wider
democratisation of the workplace.
Each of these areas has been selected to aid an evaluation of the broad
development of social policy in this period by indicating how these first
legislative steps and the early case law of the Court had an influence upon
the content and reach of the revised Social Chapter adopted at Amsterdam
in 1997.

II PARTIAL HARMONISATION AND FLEXIBLE IMPLEMENTATION

OF THE EMPLOYMENT PROTECTION DIRECTIVES

The story of the SAP is one of scaled down ambition. Faced with a downward economic cycle and the need to react most immediately to domestic
pressures, the Communitys leaders responded with pragmatism and tailored the programme to suit their immediate economic and political concerns. These changing priorities were already apparent by the time the
Commission submitted the SAP in 1974 after the first of a series of sharp
rises in oil prices. The Commission was determined not to be knocked off
course by economic turbulence and strove to secure political agreement for
19
See B Hepple, The Effect of Community Law on Employment Rights (1975) 1 Poly Law
Review 50 at 51.

The Employment Protection Directives

27

a limited programme of social legislation. The SAP sought to improve living

and working conditions with a series of measures including, for example,
a proposal to fix immediate targets of a 40-hour working week and four
weeks annual holiday.20
In essence, the Communitys approach was to intervene in areas where
national regulation either did not exist or was manifestly failing to improve
the working environment. For example, in the context of employee participation in companies, the Commission was able to boldly state in its 1975
Green Paper on employee participation that:21
A sufficient convergence of social and economic policies and structures in [employee
decision making within companies] will not happen automatically as a consequence
of the integration of markets.

It followed that positive Community action was required to provide the

necessary legislative push to attain sufficient convergence. Positive and
negative integration had become intertwined.22 Social policy, in the first
phase of the Communitys development, was based on a series of negative
assumptions that improvements would arise not through specific positive
laws at Community level in the social field, but consequentially, as a result
of the removal of barriers and improvements in productivity, allowing
Member States to enhance social conditions at a national level leading to a
general upward harmonisation of social standards. The introduction of the
SAP was tantamount to an admission that positive harmonisation was necessary, not as an end in itself, but to complete the task where the market
alone had failed to deliver. It was therefore appropriate that Article 100
EEC was to be the legal base for selected measures deemed to directly
affect the establishment and functioning of the common market.
In the event, the employment protection measures adopted were narrowly
targeted at specific economic and industrial circumstances and were intended to offer only a limited amount of employment protection, or compensation, for a change of employer or for loss of employment. Directive
75/129 on collective redundancies offered a minimal degree of procedural
rights in the face of mass dismissals.23 Directive 77/187 was concerned with
20

Bulletin of the European Communities Supplement 2/74, p 18.

Employee Participation and Company Structure, Green Paper of the EC Commission,
Bulletin of the European Communities Supplement 8/75, p 10. See S Simitis and A Lyon-Caen,
Community Labour Law: A Critical Introduction to its History in Davies et al, n 1 above,
122 at 7. For discussion, see P Davies, The Emergence of European Labour Law in W
McCarthy (ed) Legal Intervention in Industrial Relations: Gains and Losses (Blackwell,
London, 1993) 31359 at 325.
22
See S Weatherill, Law and Integration in the European Union (Clarendon Press, Oxford,
1995) pp 28283. Weatherill discusses the way in which Community law has become increasingly multi-functional combining regulation at Community level, often driven by pressure from
interest groups, with deregulation at national level to improve the operation of the European
market.
23
Dir 75/129/EEC on collective redundancies, OJ 1975, L48/29.
21

28 The Communitys New Deal

protecting the acquired rights of employees in circumstances where there
was change of the natural or legal person responsible for carrying on the
business and/or a change of ownership of the employing undertaking.24
Directive 80/987 was intended to guarantee state compensation to the
employees of insolvent companies.25 These were essentially crisis measures,
driven as much by economic considerations as social needs. Their purpose
was not to enhance basic working conditions but instead to alleviate the
consequences of economic decline, particularly in the private manufacturing sector. [The Collective Redundancies and Acquired Rights Directives
have now been amended and consolidated, while the Insolvency Directive
is also due for revision.26 For discussion of these developments and a full
appraisal of the Courts more recent jurisprudence in this area, see chapter
7, Part VI(3)].
For example, the Collective Redundancies Directive, 75/129 [now 98/59]27
provides for the consultation of workers where the employer is contemplating collective redundancies28 involving at least . . . ways and means of avoiding collective redundancies or reducing the numbers of workers affected, and
mitigating the consequences.29 This was intended to allow time for the
workers representatives to make constructive proposals and to be given
all relevant information including the reasons for the redundancies.30 Consultation with workers representatives is to take place with a view to reaching an agreement.31 The Directive was motivated in part by a desire to
provide some protection in these circumstances, but it was also hoped that it
24
Dir 77/187/EEC on the safeguarding of employees rights in the event of transfers
of undertakings, businesses or parts of businesses, OJ 1977, L61/26: the Acquired Rights
Directive.
25
Dir 80/987/EEC on the protection of employees in the event of the insolvency of their
employer, OJ 1980, L283/23.
26
Dir 92/56/EEC on collective redundancies, OJ 1992, L245/3, consolidated by Dir
98/59/EC, OJ 1998, L225/16; Dir 98/50/EC on safeguarding of employees rights in the event
of transfers of undertakings, businesses or parts of undertakings or businesses, OJ 1998,
L201/88, consolidated by Dir 2001/23/EC, OJ 2001, L82/16. For the Commissions Explanatory Memorandum on the revision of the Insolvency Dir, see COM(2000) 832.
27
Ibid.
28
Art 1(1)(a) of Dir 98/59, replacing the identical Art 1(1)(a) of Dir 75/129, defines
collective redundancies as dismissals effected by the employer for one or more reasons
not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is:either, over a period of 30 days: (1) at least
10 in establishments normally employing more than 20 and less than 100 workers; (2) at least
10% . . . in establishments normally employing at least 100 but less than 300 workers, (3) at
least 30 in establishments normally employing 300 workers or more;or, over a period of 90
days, at least 20, whatever the number of workers normally employed . . ..
29
Art 2(2) of Dir 75/129. My emphasis. See ch 7 for comment on how the Dir has subsequently been strengthened in this respect by Art 2(2) of Dir 92/56, now consolidated within
Art 2(2) of Dir 98/59.
30
Art 2(3) of Dir 75/129 [now 98/59]. Other relevant information is to include the numbers
to be made redundant, the number of workers normally employed and the period over which
the redundancies are to be given effect.
31
Art 2(1) of Dir 75/129 [now 98/59]. Dir 92/56 added the words in good time.

The Employment Protection Directives

29

would help to promote free movement of labour and a level playing field
of competition.32 The Community was effectively offering only a sticking
plaster to provide temporary and limited protection for, as the Commission
explained in its Explanatory Memorandum to the original draft:33
. . . economic changes, involving closing down of some companies are, however, an
integral part of the evolution towards more promising activities. They should not
therefore be prevented, but job mobility should be subject to adequate guarantees.

Furthermore, the Court, aware of the aspirational nature of the measure

and its limitations as a procedural labour law device, has been unwilling to
interfere with the employers managerial prerogative and commercial power
to decide how and when to formulate plans for collective dismissals subject
only to national restraints where they may exist. As the Court explained in
Nielsen, the procedural rules in the Directive apply only where the employer
has contemplated redundancies or drawn up a plan for them.34 For example,
workers cannot pre-empt the process by terminating their own contracts in
anticipation of impending redundancies.35
A similar approach can be found in the Insolvency Directive, 80/987. This
too is essentially procedural but it places the main obligation on the State
and is, therefore, bolder in practice. Each Member State is required to establish guarantee institutions36 where an employer is in a state of insolvency,37 and thereby to protect employees from the consequences of their
employers insolvency in the form of a guarantee payment of their outstanding claims resulting from the contract of employment and employment
relationship and relating to arrears of pay.38 Additional guarantees ensure
32
The original proposal for a Dir was based on a 1972 report from the Commission to the
Council (1972) 5 Bulletin of the European Communities (No 9) para 42. The report is reproduced in Bulletin No 4 (1973) Institute of Labour Relations, University of Leuven, pp
171203. For discussion, see M Freedland, Employment Protection: Redundancy Procedures
and the EEC (1976) 5 Industrial Law Journal 24 at 26.
33
See Davies in McCarthy, n 21 above at 327. This extract from the Commissions draft is
taken from the reproduced version in the Bulletin of the University of Leuven, ibid pp 108 et
seq at 206.
34
Case 248/83, Dansk Metalarbejderforbund v Nielsen & Son Maskin-fabrik A/S [1985]
ECR 553.
35
Ibid para 10.
36
Art 3(1) of Dir 80/987. Under Art 5 it is for the Member State to prescribe the detailed rules
for organisation, finance and operation of the guarantee institution providing they adhere to
three principles: (a) the assets of the institutions shall be independent of the employers operating capital and be inaccessible to proceedings for insolvency; (b) employers shall contribute to
financing, unless it is fully covered by the public authorities; and (c) the institutions liabilities
shall not depend on whether or not obligations to contribute to financing have been fulfilled.
37
Art 1(1). A state of insolvency shall be deemed to exist, by virtue of Art 2(1) when a
request has been made for the opening of proceedings involving the employers assets to satisfy
collectively the claims of creditors or where the competent national authority has decided to
open proceedings or established that the employers assets have definitely closed down and
that available assets are insufficient to warrant the opening of proceedings.
38
Art 3(1).

30 The Communitys New Deal

that non-payment of statutory social security contributions by insolvent
employers do not adversely affect the benefit entitlement of employees,39
and preserve the right of former employees to old age benefits, including
survivors benefits, under company schemes.40 Although the requirement to
establish a guarantee institution has been found not to be directly effective, non-implementation by a Member State may form the basis for a
damages claim before the national courts.41
What then was the scope of employment protection or support to be
afforded to workers under these directives? Were they intended to fully
equalise the rights of workers across the Community or merely to approximate levels of protection in a way that would fall short of full harmonisation? The preamble of Directive 77/187 [now 2001/23]42 on Acquired
Rights indicated that the latter approach was preferred. The sixth and
seventh recitals of the original Directive proclaimed that:
Whereas it is necessary to provide for the protection of employees in the event of
a change of employer, in particular to ensure that their rights are safeguarded;
Whereas differences still remain in the Member States as regards the extent of protection of employees in this respect and these differences should be reduced . . .

The commitment to protect workers was, therefore, to be achieved over

time by reducing, but not eliminating, differences in national standards. As
the Court explained 10 years later in the Daddys Dance Hall case,43 the
Directive:
. . . is intended to achieve only partial harmonisation, essentially by extending the
protection guaranteed to workers independently by the laws of the individual
Member States to cover the case where an undertaking is transferred. It is not
intended to establish a uniform level of protection throughout the Community on
the basis of common criteria.

This explanation makes sense both as an interpretation of the Directive in

question and as a general statement about Community social laws. For as
Bercusson notes:44
39

Art 7.
Art 8.
Cases C6/90 and C9/90, Francovich and Bonifaci v Italy [1991] ECR I5357. In
a landmark ruling the Court established that an individual has the right to sue a defaulting
state for failure to implement a directive where there is a direct causal link between the loss
suffered by the individual and the breach of Community obligations by the State, and where
the provisions in question are intended to benefit that individual. In Francovich the Commission had already successfully brought an action against Italy for non-compliance under Art
169 EEC [now 226 EC] but Italy had not yet acted (Case 22/87, Commission v Italy [1989]
ECR 143).
42
OJ 2001, L82/16.
43
Case 324/86, Foreningen af Arbejdsledere i Danmark v Daddys Dance Hall A/S [1988]
ECR 739, para 16. My emphasis.
44
B Bercusson, European Labour Law (Butterworths, London, 1996) p 52.
40
41

The Employment Protection Directives

31

The starting point of a policy of harmonisation is the identification of a problem

common to various European countries and the attempt to harmonise law and practice relating to the problem. It emerges, however, that the identification of common
problems, when related to varying labour laws of selected national systems, does
not produce a harmonised view of law and practice.

Therefore, variations in industrial relations and labour law systems and corresponding differences in the form and substance of national labour laws
represent insuperable obstacles to full harmonisation.45 The implications
of breaking down such differences are also both politically and socially
undesirable. For these reasons rigid harmonisation has been consistently
rejected in favour of diversity built on common standards. In this way a
patchwork of employment protection can be provided at Community level,
providing transnational protection where necessary, without creating a
common set of rules governing the employment relationship. In a sense the
very limitations inherent within these harmonising objectives have served
as a basis for justifying them on the grounds that they help to eliminate
unfair competition. As Wedderburn explains:46
The need for a level playing field of competition therefore requires a broad equivalence in labour standards. For some the minimum level would move upwards, for
others the obligatory requirements would be low; but none could agree to standards
which allow incalculable advantage only to some.

By using directives the Community was able to lay down standards acceptable to all Member States, not necessarily the lowest common denominator, but sufficiently flexible to allow for improvements at national level
while offering no scope for any individual State to undercut the agreed
minima. It followed that in each of the employment protection directives
upwards harmonisation was provided for with provisions allowing
Member States to apply or introduce laws which are more favourable to
employees.47 This approach has helped to provide a more coherent rationale for introducing Community social policy in a flexible way and, as we
shall see, it has been developed and adjusted through the notion of
minimum harmonisation in Article 118a EEC on the health and safety of
workers, added by the Single European Act of 1987, and now contained
45

Ibid.
Lord Wedderburn, The Social Charter in BritainLabour Law and Labour Courts?
(1991) 54 Modern Law Review 1 at 16. In the case of the Collective Redundancies Directive,
75/129, Wedderburn cites an article by the then AG Mancini who declared that: If a country
can authorise redundancies on less stringent conditions than other countries, its industry will
be given an incalculable advantage. And it is against the advantage that war is being declared.
See G Mancini, Labour Law and Community Law (1985) 20 Irish Jurist (ns) 1 at 12.
47
See Art 5 of Dir 77/187 and Art 9 of Dir 80/987. Art 5 of Dir 75/129 [now 98/59] was
broader and allowed for measures which are more favourable to workers or to promote or
to allow the application of collective agreements more favourable to workers. This wording
is now applied in Art 8 of Dir 2001/23, replacing Art 5 of Dir 77/187.
46

32 The Communitys New Deal

within Article 137(2) and (5) EC. This technique has continued to evolve
and been adapted to fit the new legal bases in the Amsterdam Social
Chapter.48
For example, in the case of the Collective Redundancies Directive, the
precise scope of the procedural obligation is delegated to each Member
State, not only in the choice of method for calculating the number and
timing of redundancies, but also for the oversight of the notification
procedures49 and the definition of workers representatives.50 The Court
has confirmed, in Commission v United Kingdom,51 that the Directive was
not intended to bring about full harmonisation of national systems for the
representation of employees, but the limited nature of such harmonisation does not deprive the Directive of its effectiveness and therefore the
system of workers representation cannot be determined unilaterally by
the employer.52
The Insolvency Directive, 80/987, is even more flexible. Member States
have a variety of choices for calculating compensation payments. The
amounts awarded must be for a period of at least three months before the
end of the employment contract but cover a period up to 18 months depending on the method for choosing the relevant date opted for by the Member
State be it the onset of the employers insolvency or the notice of dismissal
on account of insolvency.53 They are also able to set a ceiling to the liability for employees outstanding claims in order to avoid the payment of
sums going beyond the social objective of this Directive. The Commission
must be informed of the methods used to set this ceiling.54
Another flexible feature of the Insolvency Directive is its use of derogations to exclude groups of employees altogether if they are deemed to
have employment contracts of a special nature that fall within a list in
the Annex.55 This list excludes, inter alia, part-time domestic servants in the
Netherlands, some home workers and part-time workers in Ireland and the
crews of sea-going vessels in several countries.56 The existence of the Annex
can only be rationally explained by the requirement for unanimous voting
among the Member States under Article 100 EEC [now 94 EC]. The result

48

As listed in Art 137(1) and (3) EC.

Arts 3 and 4. This has been substantially revised by Dir 92/56 and the consolidated
provisions are now contained in Arts 3 and 4 of Dir 98/59.
50
Art 1(1)(b) unaltered in Dir 98/59, provides that workers representatives means the
workers representatives provided for by the laws and practices of the Member States.
51
Case C382/92 [1994] ECR I2435.
52
Ibid para 25.
53
Arts 3(2), 4(1) and 4(2).
54
Art 4(3).
55
Art 1(2).
56
See also, Art 1(2) and (3) of Dir 77/187, which limits the scope of application of that
Directive to all employees where the business is situated within the territorial scope of the
Treaty with the exception of sea-going vessels.
49

The Employment Protection Directives

33

is extremely arbitrary for those workers unlucky enough to be excluded

from the minimum degree of protection provided for in the Directive.57
At first glance the original Acquired Rights Directive had many similarities with the Directives on Collective Redundancies and Insolvency. It had
a procedural dimension and was intended to operate flexibly. As noted
above, it was concerned with reducing rather than eliminating differences
between the Member States. In particular, the Directive was a response to:58
Economic trends . . . bringing in their wake, at both national and Community
level, changes in the structure of undertakings, through transfers of undertakings,
businesses or parts of businesses to other employers as a result of legal transfers
or mergers.

The inclusion of this recital reflected a subtle but important change of

emphasis from the original proposal of 1974. In the Commissions proposal
it was explicitly stated that the primary aim of the draft directive was to
ensure . . . that employees do not forfeit essential rights and advantages
acquired prior to a change of employer.59 While the limited legal bases in
the Treaty required an acknowledgement of the wider market functioning
factors referred to in Article 100 EEC, it is clear from the final text that,
after long and tortuous negotiations, the market imperative was deemed to
be paramount.
Although the Directive is widely seen today as a champion of employees rights60 its core employment protection provisions were quite restricted
and circumscribed by derogations. For the Member States it was understood as only a safeguard in the specific context of the ending of an employment relationship by reason of a transfer of an undertaking or business or
part thereof as defined in the Directive. Where such circumstances arise, the
transferee inherits both the employment relationship and the rights acquired
therein with the exception of any occupational pension arrangements.61 The
terms and conditions in any collective agreements are transferred although
a Member State is able to limit their observance to only one year after the
transfer.62
In the main text of the Directive the specific event of transfer was defined
narrowly as the transfer of an undertaking, business or part of a business
57
In Case C53/88, Commission v Greece [1990] ECR I3931, the Court held that the
Directive offers minimum guaranteed protection to all employees and the exclusions are only
possible by way of an exception on implementation.
58
First recital of the preamble of Dir 77/187.
59
COM(74) 351. For discussion, see G More, The Concept of Undertaking in the
Acquired Rights Directive: The Court of Justice Under Pressure (Again) (1995) 15 Yearbook
of European Law 135 at 13637; and P Davies, Acquired Rights, Creditors Rights, Freedom
of Contract, and Industrial Democracy (1989) 9 Yearbook of European Law 21 at 279.
60
More, ibid at 135.
61
Art 3(1) and 3(3) of Dir 77/187 [now incorporated within the amended Art 3(1) and 3(4)
of Dir 2001/23].
62
Art 3(2) of Dir 77/187 [now Art 3(2) of Dir 2001/23].

34 The Communitys New Deal

to another employer as a result of a legal transfer or merger.63 Therefore
protection depended on the nature of the transfer or merger and did not
arise simply by virtue of a change of employer or, as proposed in the original draft,64 a mere change of control not involving a change of identity
of the employer. Moreover, the transfer event did not occur where one
company acquired a controlling shareholding in another, or indeed where
the transferor had been adjudged insolvent and the undertaking deemed to
be part of his assets.65 In effect, operative business practices likely to alter
the rights of the employees concerned, such as takeovers and the hivingdown of companies,66 were excluded even where there was a change in
ownership. When the Directive was adopted such activities were relatively
rare in many of the Member States. By the end of the 1980s, these business
practices had become commonplace throughout the Community and an
expert report for the Commission recommended a revision of the Directive
in 1990.67 In the event the Directive was not amended until 1998.
An additional limitation in the Acquired Rights Directive is the distinction made between certain types of dismissal that may arise in the context
of the transfer process. The employer does not have grounds for dismissal
if the reason for the dismissal is the transfer itself, and is responsible for
any related terminations of contracts of employment or employment relationships that involve a substantial change in working conditions to the
detriment of the employee.68 This would include dismissals even before the
transfer date where the reason for the dismissal is the transfer.69 Conversely,
where the dismissal is for other economic, technical or organisational
reasons entailing changes in the workforce,70 the employee has no recourse
to Community law and therefore the level of protection is entirely determined by the existence and scope of national unfair dismissal legislation or
collective agreements. The sheer breadth of this exemption, coupled with

63
Art 1(1) [now Art 1(1) of Dir 2001/23. Emphasis added. [This definition has been substantially revisedsee ch 7 for discussion].
64
COM(74) 351, draft Art 11. For comment, see Davies (1989, Yearbook of European
Law) n 59 above at 27.
65
Case 135/83, Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische
Industrie [1985] ECR 469.
66
See R Rideout, The Great Transfer of Employees Rights Hoax [1982] Current Legal
Problems 233 at 23739. Rideout describes hiving down as a device that enables a receiver
to transfer the assets of an insolvent company to an intermediate owner who is usually a
wholly owned subsidiary of the insolvent. The insolvent company retains the liabilities, including the employees. The employees rights become a mere bundle of assets. Their rights lie in
claims against the insolvent company although any employees who are ultimately transferred
will be protected.
67
B Hepple, Main Shortcomings and Proposals for Revision of Council Directive 77/187
(European Commission, Brussels, 1990).
68
Art 4(2) of Dir 77/187 [now 2001/23].
69
Case 101/87, Bork v Foreiningen Arbejdsledere i Danmark [1988] ECR 3057.
70
Art 4(1) of Dir 77/187 [now 2001/23].

The Employment Protection Directives

35

the problem of transposition based on translation of such arcane terms,71

has created plenty of scope for employers to rebut the presumption of an
unlawful dismissal in a transfer scenario.72
Not surprisingly, the introduction of a right of an employee to have their
acquired rights transferred in a given situation led to a stream of litigation
in which the labyrinthine wording of the Directive has been explored almost
to the point of exhaustion. By the end of 1997 the Court had handed down
25 judgments interpreting the Directive.73 Case law has led to a quite
remarkable evolution in the character of the Directive. By the time of its
amendment in 1998, the Directive was a quite different animal from the
beast originally conceived by the Member States. For example, in the 1970s
the Member States were, without exception, retaining a fairly stable level
of public ownership or, in some cases, such as France, briefly after 1981,
contemplating further nationalisation, particularly in the utility and
banking sectors. Although public ownership had been permitted under
Article 222 EEC [now 295 EC],74 the central thrust of the Directive, as
indicated by the preamble, was aimed at changes of ownership of private
sector undertakings at a time of economic turbulence, particularly in the
manufacturing sector. This did not mean that Member States were able to
explicitly exclude the public sector as the UK sought to do, ultimately
unsuccessfully,75 but such an application was ancillary. Yet, within 10 years
a dramatic transformation had taken place. Member States, led by the UK,
were embarking on a variety of programmes of contracting out or even

71
As Lord Wedderburn complained, in a debate on the implementing legislation in the UK
House of Lords, when referring to Art 4(1): Euro-jargon sometimes goes well into the law of
France and of Germany. It rarely goes well into English law, HL Deb 1166 (10 Dec 1981)
col 1491.
72
For a comment on the impact of this provision on UK employment law at the time of
implementation, see Rideout, n 66 above at 24243.
73
For comprehensive summaries of the case law, see C De Groot, The Council Directive
on the Safeguarding of Employees Rights in the Event of Transfers of Undertakings: An
Overview of the Case Law (1993) 30 Common Market Law Review 331; and C De Groot,
The Council Directive on the Safeguarding of Employees Rights in the Event of Transfers of
Undertakings: An Overview of Recent Case Law (1998) 35 Common Market Law Review
707.
74
Art 295 EC reads as follows: This Treaty shall in no way prejudice the rules in Member
States governing the system of property ownership.
75
Case C383/92, Commission v United Kingdom [1994] ECR I2345. Reg 2(1) of the
UKs Transfer of Undertakings (Protection of Employment) Regulations (SI 1981, No 1794)
defined an undertaking as including: any trade or business but . . . not . . . any undertaking
or part of an undertaking which is not in the nature of a commercial venture. A commercial
venture was understood, in pleadings accepted by the UK, to refer to the investment of capital
with a view to making profits and accepting the risks of losses, para 19 of the AGs opinion.
The Court held that this interpretation was too narrow and found that the fact that an undertaking is engaged in non-profit-making activities is not in itself sufficient to deprive such activities of their economic character or to remove the undertaking from the scope of the directive,
paras 445. The UK, anticipating this outcome, had amended the Regulations with effect from
30 Aug 1993 by virtue of s 26 of the Trade Union Reform and Employment Rights Act, 1993.

36

The Communitys New Deal

full-scale privatisation of public services. Was the Directive sufficiently

flexible to evolve in such a way as to take account of these changed
circumstances?
The response of the Court when faced with this question has been to seek
to keep pace with changes on the ground while continuing to make reference to the wider economic basis for the Directive in such a way as to
provide a broad discretion to national courts. The first question to be considered is strictly legal: has there been a legal transfer or merger? The
second question, however, is one of fact for the national court to determine
whether there has been a transfer of an undertaking, business or part of a
business to another employer?76
By the mid-1980s, when the trickle of cases was becoming a flood, the
Court sought to give as much discretion as possible to the national courts.
In essence, the national court is required to consider the nature of the
economic activities and organisational arrangements of the transferor and
transferee with the employees as passive recipients of Community safeguarding if the criteria are met. There is, however, scope for an employee to
object if he does not wish to be transferred, as he cannot be obliged to
work for an employer that he has not freely chosen.77 In Spijkers78 a nonexhaustive list of factors was drawn up by the Court to determine whether
there had in fact been a transfer. These factors include: the type of business
concerned; whether its tangible assets have been transferred; the value of
those assets at the time of transfer; the retention of employees and customers;
and continuation of similar activities.79 Having considered these and any
other factors, the decisive criterion is whether the business in question
retains its identity as indicated, inter alia, by the actual continuation or
resumption by the new employer of the same or similar activities.80 The
critical point here is that the operation of the Directive is not dependent on
76

See More, n 59 above at 13738.

Cases C132/91 and C138139/91, Katsikas v Konstatinidis [1992] ECR I6577. The
Court held, at paras 31 and 32, that an obligation on the employee to be transferred would
jeopardise the fundamental rights of the employee, who must be free to choose his employer
and cannot be obliged to work for an employer whom he has not freely chosen. Although
this is qualified by the Courts decision that national law may allow the contract with the
transferor to be terminated by reason of the transfer, the Courts approach is consistent with
the international labour law principle that labour is not a commodity and the common law
rule that upholds the freedom of contract. See P OHiggins, Labour is not a Commodity
An Irish Contribution to International Labour Law (1997) 26 Industrial Law Journal 225.
As Lord Atkin famously stated in Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC
1014 at 1026: I had fancied that ingrained in the personal status of a citizen under our laws
was the right to choose for himself whom he would serve, and that this right of choice constituted the main difference between a servant and a serf. For comment, see Davies (1989,
Yearbook of European Law) n 59 above at 23; B Hepple, Social Values and European Law
[1995] Current Legal Problems 39 at 534.
78
Case 24/85, Spijkers v Gebroeders Benedik Abbatoir CV [1986] ECR 1119.
79
See also, Case C209/91, Rask and Christensen v ISS Kantinservice [1993] ECR I5755.
80
Case 24/85, Spijkers v Gebroeders Benedik Abbatoir CV [1986] ECR 1119, paras 1114.
77

The Employment Protection Directives

37

a change of ownership but is instead applicable in any situation where, as

the Court explained in Daddys Dance Hall,81 there is a change in the
natural or legal person who is responsible for carrying on the business and
who by virtue of that fact incurs the obligations of an employer. In such a
situation the employees require equivalent protection that is comparable to
that of employees of an undertaking that has been sold. It is at this point that
labour law overrides commercial considerations.82
It followed that, by considering neutral economic factors as part of
an overall assessment, it was perfectly possible, at least on a theoretical
level, for the Directive to be applied to privatisations and contracting out.
Moreover, such an approach was consistent with the economic objectives
of the Treaty. For example in its judgment in a free movement case, Don,
the Court had stated that:83
The pursuit of an activity as an employed person or the provision of services for
remuneration must be regarded as an economic activity within the meaning of
Article 2 of the Treaty.

As AG Van Gerven explained in Commission v United Kingdom,84 the

nature of the economic activity understood to be covered by any directive
concerned with common market approximation was not to be determined
according to the sector within which that activity was performed and could
not be limited only to profit-making undertakings.85 It was in this light that
the term undertaking was to be understood. For example, in Sophie
Redmond,86 a change in the ownership of a publicly funded charitable foundation was found to be capable of falling within the scope of the Directive.
There had been a change in the legal or natural person responsible for carrying out the business albeit that this was the result of a decision by a public
body to terminate its subsidy.87 By contrast, in Henke,88 the Court was not
prepared to extend the Directive so far that it covered structural reorganisations and transfers of administrative functions that took place exclusively
between public administration authorities.89 Therefore, in the area of
81
Case 324/86, Foreningen af Arbejdsledere i Danmark v Daddys Dance Hall A/S [1988]
ECR 739, para 9.
82
See Davies (1989, Yearbook of European Law) n 59 above at 40.
83
Case 13/76, Don v Mantero [1976] ECR 1333, para 12.
84
Case C383/92, Commission v United Kingdom [1994] ECR I2345, paras 225 of the
AGs opinion.
85
Case 66/85, Lawrie-Blum [1986] ECR 2121, para 20. Cited with approval by AG Van
Gerven, ibid para 22.
86
Case C29/91, Dr. Sophie Redmond Stichting v Bartol [1992] ECR I3189.
87
Ibid para 21.
88
Case C298/94, Henke v Gemeinde Schierke and Verwaltungsgemeinschaft Brocken
[1996] ECR I4989.
89
Ibid para 14. For discussion, see C Barnard and T Hervey, European Union Employment and Social Policy Survey 1996 and 1997 (1997) 17 Yearbook of European Law 435 at
44243.

38 The Communitys New Deal

government, as opposed to charities, the Directive would not normally
apply where economic activities were ancillary but such a presumption
could be rebutted on the facts.90 While the Court in Henke can be criticised
for a cautious approach, its interpretation reflected the limitations inherent
within the Directive.
The Court has had the difficult task of interpreting the Directive in the
context of ever more radical changes in company organisation and commercial activity in both the public and private sectors. For example, in a
contracting out case, Schmidt,91 it was held that, in considering the list of
factors to be taken into account by the national court, the absence of any
transfer of tangible assets will not preclude a transfer where the business
has retained its identity and has maintained the same or similar activities
even though the activity is merely ancillary. Although this case concerned
only the transfer of a solitary canteen assistant, the Directive was applicable because the employee in question had the right to have her acquired
rights safeguarded. This expansive approach was not followed in Rygaard
where the Court held that a transfer must relate to a stable economic entity
whose activity is not limited to performing one specific works contract.92
Moreover, in Szen93 it was held that the further sub-contracting of an
activity, a second generation contract, falls outside the provisions of the
Directive unless there is a transfer of significant tangible or intangible assets
or the taking over by the new employer of a major part of the workforce.
These cases will be examined in more depth in chapter 7, when consideration will be given to the codification of the Courts case law in the
amended Directive and its more recent jurisprudence. For now, however,
it is important to note that, in making these refinements to the tests for
determining a transfer, the Court opened itself up to criticism for giving preeminence to commercial considerations while losing sight of the Directives
overriding objective of safeguarding the employee in the event of a change
of employer arising out of circumstances beyond the employees control and
over which they have little or no influence. Equally it can be seen that the
Court has had little room for manoeuvre. It has had to work with a Directive which, though rooted in the economic, political and industrial context
of the 1970s, has had to be applied in the rapidly changing circumstances
of the mid-1980s and beyond, where both public and private sector structures of ownership and control have become increasingly fragmented and
90

See De Groot (1998, Common Market Law Review) n 73 above at 722.

Case C392/92, Schmidt v Spar und Leikhasse [1994] ECR I1311, paras 1317. See
also, Case C209/91, Rask and Christensen v ISS Kantinservice [1992] ECR I5755; and Case
C171/94, Merckx and Neuhuys v Ford Motors [1996] ECR I1253.
92
Case C48/94, Rygaard v Str Mlle Akustik [1995] ECR I2745, para 20.
93
Case C13/95, Szen v Zehnacker Gebudereinigung GmbH Krankenhausservice [1997]
ECR I1259. For a critique, see P Davies, Taken to the Cleaners? Contracting Out of
Services Yet Again (1997) 26 Industrial Law Journal 193.
91

The Employment Protection Directives

39

globalised at a speed that could not have been anticipated by its authors.
Moreover, in applying the Directive, the Court has remained aware of its
origins as a market integration measure that, in the words of AG Mancini in
Berg, was intended to facilitate mobility of enterprises while protecting the
rights of their staff.94
An additional feature of the original Collective Redundancies and
Acquired Rights Directives can be found in the respective provisions concerning information and consultation with trade unions and/or workers
representatives.95 The broader issues of worker involvement will be considered later in this chapter, and there has been some strengthening of these
provisions in the amending directives,96 but in the context of the directives,
as adopted in the 1970s, the limitations of the procedures laid down are
obvious. Article 2(1) of Directive 75/129, by providing for consultation
by an employer with workers representatives with a view to reaching an
agreement was designed to offer the individual worker an indirect right
amounting to a minimum level of protection,97 through his representatives,
to information and consultation in a scenario where an employer was contemplating collective redundancies. By contrast, the provisions of Article 6
of Directive 77/187 were operative only when the transfer was a fait
accompli not directly challengeable by the employees representatives. Their
only function was to receive information in good time about the reason for
the transfer; the legal, economic and social implications for the employees;
and measures envisaged in relation to the employees.98 This was a much
weaker text than the original draft, which would have placed an obligation
on both the transferor and the transferee to inform the representatives of
the workforce of the proposed transfer and to indicate to them any measures
proposed to be taken in relation to workers. Where the outcome may have
been prejudicial to the workers, there would have been an obligation on both
transferor and transferee to negotiate with a view to reaching an agreement
and, if necessary, to go to binding arbitration.99 Under the provisions
of Directive 77/187 the managerial prerogative to proceed with the transfer
without either negotiation or binding arbitration was beyond question.
While, in the context of both directives, the Court has held that the Member
States cannot unilaterally impose a system of designating employees

94
Cases 144145/87, Berg and Busschers v Besselsen [1988] ECR I2559, para 2 of the
opinion.
95
Art 2 of Dir 75/129; and Art 6 of Dir 77/187.
96
See Art 2 of Dir 92/56, now consolidated in Art 2 of Dir 98/59; and Art 6 of Dir 98/50,
now consolidated in Art 7 of Dir 2001/23.
97
Case 215/83, Commission v Belgium [1985] ECR 1039, para 2.
98
Art 6(1) of Dir 77/187. Art 6(1) of Dir 98/50 adds a requirement for information concerning the date or proposed date of the transfer [now Art 7(1) of Dir 2001/23].
99
COM(74) 351, draft Art 8. For further comment, see Davies, (1989, Yearbook of
European Law) n 59 above at 28.

40

The Communitys New Deal

representatives,100 it remains the case, even after the revision of the directives, that employees representatives have limited scope for bargaining in an
unequal relationship.
As integrationist tools the three directives combined the technique of
partial harmonisation with flexible forms and methods of implementation
implied by Article 189 EEC [now 249 EC]. Each directive contained a
similar implementation clause placing an obligation on the Member States
to bring into force the laws, regulations or administrative provisions
required for compliance.101 This level of flexibility in the method of implementation can be compared with Article 19, paragraph 5(d) of the
International Labour Organisation (ILO) Constitution, which provides that
Member States of the ILO must take such action as may be necessary to
make effective the provisions of any convention that they ratify.102 Some
ILO conventions refer to the options of Member States to adopt or refer to
national law or regulations or collective agreements to make them effective.103 Article 33(1) of the European Social Charter (ESC) allows collective
agreements to be used to enforce certain labour standards provided that
they are applied . . . to the great majority of the workers concerned.104
References to collective agreements as methods of implementation were
noticeably absent from early Community social policy directives of the SAP
period. In many ways this was surprising given the long tradition in certain
Member States, such as Denmark, for preferring legally binding contractual agreements to centralised legislation.105 Indeed it has been argued that
where collective agreements are legally binding and govern the working
conditions of whole groups of workers and sectors, they may be more
flexible and effective than legislation.106 Was it possible, by implication, to
extend the implementing provisions in directives to allow for compliance
by way of collective agreements given that this would reflect both the
100

Case C383/92, Commission v United Kingdom [1994] ECR I2345, para 19.
Art 6 of Dir 75/129; Art 8 of Dir 77/187; and Art 11 of Dir 80/987.
102
See N Valticos and G von Potobsky, International Labour Law, 2nd revised edn (Kluwer,
Deventer, 1995) pp 27475; and C Jenks, The Application of International Labour Conventions by Means of Collective Agreements (1958) 19 Zeitschrift fr auslndisches ffentliches
Recht und Vlkerrecht 197.
103
For example, Art 6 of ILO Convention No 135 of 1971 concerning the protection and
facilities to be afforded workers representatives in the undertakings. For discussion, see A
Adinolfi, The Implementation of Social Policy Directives Through Collective Agreements
(1988) 25 Common Market Law Review 291 at 297.
104
529 UNTS No 89. See O Kahn-Freund, The European Social Charter in F Jacobs (ed)
European Law and the Individual (North-Holland, Amsterdam, 1976) 181211 at 19091.
105
In the case of Denmark this tradition can be traced back to the September Agreement
of 1899, the forerunner of successive basic agreements. See Lord Wedderburn, Inderogability, Collective Agreements and Community Law (1992) 21 Industrial Law Journal 245 at
24748.
106
See Adinolfi, n 103 above at 295. Adinolfi contrasts the tradition of relying on contractual agreements in Italy and Denmark with the experience in the UK and Ireland where
such agreements are not legally binding.
101

The Employment Protection Directives

41

tradition in some Member States and practice in international labour law?

Moreover, if compliance was possible by means of a collective agreement,
who was to be covered by its terms?
These questions were foremost in the collective minds of the Court
when asked to consider the issue in Commission v Denmark.107 This case
concerned the decision of the Danish Government to seek to implement
Directive 75/117 on equal pay108 by way of reference to a prior collective
agreement. The Court had to consider whether this method of compliance
provided the necessary legal certainty required by the Community system.
The answer was a heavily qualified yes. In particular, the Court held, the
Community method emphasised an inclusive approach that, unlike the ESC,
took account of the interests of minorities. The Court stated that:109
Member States may leave the implementation of the principle of equal pay in the
first instance to representatives of management and labour. That possibility does
not, however, discharge them from the obligation of ensuring, by appropriate
legislative and administrative provisions, that all workers in the Community are
afforded the full protection provided for in the directive. That state guarantee must
cover all cases where effective protection is not ensured by other means, for whatever reason, and in particular cases where the workers in question are not union
members, where the sector in question is not covered by a collective agreement or
where such an agreement does not fully guarantee the principle of equal pay.

Therefore the critical issue is not form but effect. The hierarchy of norms
may vary between and within national jurisdictions but whatever system is
in place, the ultimate obligation remains with the state. Each Member State
must consider the following question. Is the method of implementation
proposed capable of creating a state guarantee of an effective right protecting all of the individuals intended to be covered by the directive and
capable of enforcement by them before their national courts? In other words,

107

Case 143/83 [1985] ECR 427. See also Case 102/79, Commission v Belgium [1980] ECR

1473.
108

OJ 1975, L45/19.
[1985] ECR 427 at 43435. My emphasis. This remains, however, a contentious interpretation not always approved of by the Courts AGs. For example, in a subsequent case, AG
Slynn expressed the view that directives cannot be implemented by collective bargaining
agreements unless they are given the force of law by legislation . . . [a] collective bargaining
agreement is not a method for implementing a directive under Article [249] of the Treaty,
because it does not have the same binding force. In the view of the AG, collective agreements
are not laws, regulations or administrative provisions within the meaning of Art 8 of Dir
77/187 (Case 235/84, Commission v Italy [1986] ECR 2291 at 2295). See also, AG Van
Themaats Opinion in Case 91/81, Commission v Italy [1982] ECR 2133 at 2145. The Court
in Case 235/84 declined to follow its AGs advice and reiterated its statement in Commission
v Denmark. For discussion, see B Bercusson, Collective Bargaining and the Protection of Social
Rights in K Ewing, C Gearty, and B Hepple (eds) Human Rights and Labour Law: Essays
for Paul OHiggins (Mansell, London, 1994) 10626 at 10912; and P Davies, The
European Court of Justice, National Courts and the Member States in Davies et al, n 1 above,
95138 at 12023.
109

42 The Communitys New Deal

will it achieve the result required by Article 249 EC [ex 189 EEC]? Clearly
no such guarantee is possible in Member States, such as the UK or Ireland,
where collective agreements are not legally binding inter partes. In several
other countries, including Spain and Germany, there is a concept akin to the
Italian doctrine of inderogabilit, by which there can be no derogation
from the norms in collective agreements to the detriment of the workers
concerned.110 Only in certain countries, however, are such agreements
capable of extension by law to all relevant workers erga omnes.111
Wedderburn112 has urged the Court to resist the superficial attractions of
a quest for legal formalism but, even if collective agreements may offer
short-term guarantees, the Community interest is not so much legal
certainty as lasting effective protection for all intended beneficiaries. If a
collective agreement ceases to be representative of all the workers concerned,
or if it is no longer being complied with, then it follows that the state must
be required to step in to fill the gap by providing the necessary guarantee
through legislation or administrative action. The Commission retain the
responsibility of monitoring, on a continuing basis, the implementation of
directives by the Member States who, in turn, have the onus of satisfying
the Commission that the forms and methods used are effective. In all cases
the primary concern of the Court, as we shall see in the next section, is
effective protection of the intended beneficiaries of the Community
measure in question and this must be reflected by methods of implementation that are transparent and certain.

III EQUAL PAY AND EQUAL TREATMENTTHE PIVOTAL ROLE OF

THE COURT OF JUSTICE

Community provisions on equality between men and women, Article 119

EEC on the principle of equal pay, now replaced by the much broader
Article 141 EC, and the ensuing SAP Directives on equal pay and equal
treatment,113 have played a prominent role in the case law of the Court.
110

See Wedderburn (1992, Industrial Law Journal) n 105 above at 24950.

Ibid at 259. Wedderburn cites France, Belgium, Spain, Germany and the Netherlands as
countries where a legal power exists to extend collective agreements. In Denmark and Sweden
extension is unacceptable because it is contrary to contractual principles, while in Italy permanent agreements of this kind have been found to be unconstitutional.
112
Ibid at 256.
113
Dir 75/117/EEC on the approximation of the laws of the Member States relating to the
application of the principle of equal pay for men and women, OJ 1975, L45/19; Dir
76/207/EEC on equal treatment for men and women as regards access to employment,
vocational training and promotion and working conditions, OJ 1976, L39/40; Dir 79/7/EEC
on the progressive implementation of the principle of equal treatment for men and women in
matters of social security, OJ 1979, L6/24; Dir 86/378/EEC on occupational social security,
OJ 1986, L225/40 [now amended by Dir 96/97/EC, OJ 1997, L46/20]; and Dir 86/613/EEC
on self-employment, OJ 1986, L359/56.
111

Equal Pay, Equal Treatment and the Court of Justice

43

This is no coincidence for it is precisely in those areas where the Treatys

objectives are strong, but its means of giving effect to them are limited, that
the Court has been able to act dynamically.114 The juridical tools used by
the Court have been the twin notions of effectiveness of Community law
and protection of the rights of the individual.
In its early years the Court was responsible for a quiet revolution that
greatly influenced the development of Community social law particularly
in the equalities field.115 In Van Gend en Loos,116 the Court gave notice of
how it perceived its duty to ensure that in the interpretation and application of this Treaty the law is observed.117 By granting individuals the right
to invoke the Treaties before national courts and tribunals, by virtue of the
principle of direct effect, the Court created a basis not only for references
from national courts for preliminary rulings arising from individual actions
under Article 234 EC [ex 177 EEC], but also, for the interpretation of
national laws by domestic courts in conformity with Community law,118
or indirect effect as part of the general obligation on Member States to
comply with their Community obligations under Article 10 EC [ex 5
EEC].119 This principle would apply to national laws whether issued before
or after the Community provision in question.120
These developments were possible because of the Courts parallel creation
of the doctrine of supremacy of Community law over national law, a notion
at first resisted, but later accepted with various degrees of enthusiasm by
the national courts.121 Moreover, by coupling direct effect with the principle of supremacy, the Court created a clear basis for the Commission to
bring an action against a state deemed to be failing to meet its Treaty obligations under Article 226 EC [ex 169 EEC].
In one leap, followed by several smaller steps, the Court has developed
the notion of leffet utile, to give operative effect to the Treaty and to
binding Community legislation, because it regards as its task, and the duty
114
See generally, Davies in Davies et al, n 1 above, and P Watson, The Role of the
European Court of Justice in the Development of Community Labour Law in Ewing et al,
n 109 above at 76105.
115
See J Weiler, Quiet Revolution: The European Court of Justice and its Interlocutors
(1994) 26 Comparative Political Studies 510.
116
Case 26/62 [1963] ECR 1.
117
Art 220 EC [ex 164 EEC].
118
Case 14/83, Von Colson and Kamann v Land Nordrhein Westfalen [1984] ECR 1891.
119
The first paragraph of Art 10 EC provides that: Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out
of this Treaty or resulting from action taken by the institutions of the Community. They shall
facilitate the achievement of the Communitys tasks. The second paragraph adds: They shall
abstain from any measure which could jeopardise the attainment of the objectives of this
Treaty.
120
See Case C106/89, Marleasing SA v La Comercial Alimentation SA [1990] ECR I4135.
121
For example in the case of the Conseil dEtat, see Ministre de lintrieur v Cohn-Bendit
[1980] CMLR 543; and W Cohen, The Conseil dEtat: continuing convergence with the Court
of Justice (1991) 16 European Law Review 144.

44 The Communitys New Deal

also of the national courts, to fulfil the overall objectives of the Treaty
through judicial supervision and enforcement. The logic is simple. Only
through the invention of the principles of direct effect and supremacy,
neither of which were explicitly stated in the Treaties, has the Court been
able to prevent the attainment of these objectives from being jeopardised
contra the second paragraph of what is now Article 10 EC [ex 5 EEC].
It follows that:122
. . . the law stemming from the Treaty, an independent source of law, could not,
because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law
and without the legal basis of the Community itself being called into question.

As the Court reasoned in Van Gend en Loos, the Member States had,
of their own volition, created a new legal order for the benefit not only
of themselves but also of their subjects and had therefore limited their
sovereign rights, albeit within limited fields, and, consequentially, had
conferred on individuals rights which become part of their legal heritage.123
In the context of the SAP, this analysis would indicate two immediate
questions. First, how could social policy rights be advanced through the
juridical process when, with the arguable exception of Article 119 EEC, the
Member States had quite deliberately chosen to retain their sovereign rights
in this field? Secondly, as the directive was the chosen legislative instrument
in this area, were social policy directives legally enforceable by way of an
action brought by one individual against another, or by an individual against
a state before national courts or tribunals? It is worth noting at this stage
that, following the adoption of the revised Social Chapter at Amsterdam, the
first question has subtly changed and the Court has been presented with a
fresh challenge to give full effect to its provisions.124 Conversely, the second
question remains, as we shall see, distinctly problematic.
In considering the first question, we have already noted the very limited
scope of Article 117 EEC in the eyes of the Court. On face value Article
119 EEC appeared to offer very little more. It contained a statement of the
principle of equal pay for equal work as a binding obligation on Member
States but there was no inherent capacity to issue directives to compel
Member States to pass implementing legislation.125 Further, the scope of the
122

Case 6/64, Costa v ENEL [1964] ECR 585.

[1963] ECR 1 at 12. My emphasis. This followed the Courts approach in the early cases
concerning the ECSC. In Cases 7/56 and 37/57, Dinecke Algera v Common Assembly of the
European Coal and Steel Community [19578] ECR 39, the Court held that the ECSC Treaty
rests on the derogation of sovereignty consented by the Member States to supranational
jurisdiction for an object strictly determined. The legal principle at the basis of the Treaty is
a principle of limited competence.
124
See ch 10, pp 45865.
125
The first paragraph of Art 119 EEC provided that: Each Member State shall during the
first stage ensure and subsequently maintain the application of the principle that men and
women should receive equal pay for equal work.
123

Equal Pay, Equal Treatment and the Court of Justice

45

principle appeared limited and indeed was formally much narrower than
the universal standard set by ILO Convention No 100 of 1951.126 Indeed
the much broader principle that men and women should receive equal
remuneration for work of equal value was in the original 1919 ILO
Constitution and appears also in Article 4(3) of the ESC. There is a clear
distinction between equal work, meaning literally pay differentials in the
same workplace, and equal value, meaning unequal pay for equivalent work
based on an objective appraisal of comparability that can extend beyond
the immediate workplace. The final paragraph of Article 119 EEC [now
the second paragraph of Article 141(2) EC], states that equal pay without
discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the
same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.

It was hardly surprising, therefore, that the UK believed that its existing
Equal Pay Act of 1970, which limited equal pay comparisons to those carrying out identical work, was compatible with Article 119 EEC, a position
not rectified until after the Commission brought infringement proceedings
before the Court in 1981.127 By this time Directive 75/117 had entered into
force. Article 1(1) of the Directive defines the principle of equal pay as
outlined in Article 119 as meaning for the same work or work for which
equal value is attributed, the elimination of all discrimination on grounds
of sex with regard to all aspects and conditions of remuneration. This
brought the Community definition into line with international law while
raising the further question, considered below, about the precise relationship between the Directive and the Treaty provision.
The scope of pay under Article 119 EEC [now Article 141(2) EC] is as
follows:
For the purpose of this Article, pay means the ordinary basic or minimum wage
or salary and any other consideration, whether in cash or in kind, which the worker
receives, directly or indirectly, in respect of his employment from his employer.

This definition is almost identical to ILO Convention No 100 but it was

far from clear that this would be interpreted widely. In the immediate aftermath of the Treaty of Rome there seemed to be little immediate prospect
of the area being tested before the Court. Kahn-Freund, writing in 1960,
reflected the prevailing mood when he stated that:128
126

Art 141(1) EC now incorporates the equal value concept.

Case 61/81, Commission v United Kingdom [1982] ECR 2601. See generally, E Ellis,
Equal Pay for Work of Equal Value: The United Kingdoms Legislation Viewed in the Light
of Community Law in T Hervey and D OKeeffe (eds) Sex Equality Law in the European
Union (Wiley, Chichester, 1996) 719.
128
O Kahn-Freund, Labour Law and Social Security in E Stein and T Nicholson (eds)
American Enterprise in the European Common Market: A Legal Profile, Vol 1 (University of
Michigan Press, Ann Arbor, 1960) 297458 at 329.
127

46 The Communitys New Deal

Article 119 is very cautiously formulated. The principle of equal pay for equal work
does not ipso facto become part of the legal systems of the members, and the Council
has not been given power to issue regulations enacting it into law. The Member
States have gone no further than to accept an obligation to each other and to the
Community to transform their systems of wage rates so as to ensure application of
the principle in the course of the first stage of the transitional period. Article 119
does not, therefore, confer any rights or impose any obligations on any individual
based on the principle of equality. It does no more than to create an obligation
binding the Member States in international law.

Fifteen years on, however, the Court, having invented the principle of direct
effect, breathed new life into this very cautiously formulated obligation in
Defrenne II129 and made it effective not just as a right for individuals vis-vis Member Statesvertical direct effectbut also, because Article 119
EEC, read in conjunction with the notion of solidarity in Article 5 EEC
[now 10 EC], required an interpretation placing obligations upon, and
granting rights to, individuals, the principle of equal pay applied equally to
individuals inter sehorizontal direct effect.130
Viewed with hindsight, Defrenne II conveys a certain logic that can be
followed through by reference to subsequent decisions of the Court but, at
the time, it was remarkable for its liberality. Indeed, even the Commission
in its submission to the Court was of the view that Article 119 EEC did
not affect relations between individuals.131 Moreover, this interpretation of
the bare Treaty provision is still criticised by those who argue that, on the
basis of a narrow reading of the Treaty, the ruling in Defrenne II lends itself
to the charge of being contrary to the text.132 Others contend that if the
Court had chosen to leave the question of interpretation to the national
courts the resulting inconsistencies would, in the words of Arnull, have
fatally undermined the common market, which it was the purpose of the
Treaty to establish.133 By extending these principles to equal pay, the Court
was interpreting the Treaty teleologically at a time, 1976, when the political barometer was pointing in a favourable direction in the wake of the
Sullerot Reports finding of persisting pay inequality and the passage of
the Equal Pay Directive.134 The Courts application of the notion of leffet
utile in the context of Article 119 EEC meant an appreciation of its twin
objectives:135
129

Case 43/75, Defrenne v Sabena II [1976] ECR 455.

Ibid para 39.
131
Ibid at 462. See J Usher, European Community Equality Law: Legal Instruments and
Judicial Remedies in C McCrudden (ed) Women, Employment and European Equality Law
(Eclipse Publications, London) 16177 at 167.
132
See T Hartley, The European Court, Judicial Objectivity and the Constitution of the
European Union (1996) 112 Law Quarterly Review 95 at 97.
133
A Arnull, The European Court and Judicial Objectivity: A Reply to Professor Hartley
(1996) 112 Law Quarterly Review 411 at 414.
134
See Davies in Davies et al, n 1 above at 107.
135
Defrenne II, paras 910 and 12.
130

Equal Pay, Equal Treatment and the Court of Justice

47

First . . . to avoid a situation in which undertakings established in States which have

actually implemented the principle of equal pay suffer a competitive disadvantage in
intra-Community competition as compared with undertakings established in States
which have not yet eliminated discrimination against women workers as regards
pay.
Secondly, this provision forms part of the social objectives of the Community, which
is not merely an economic union, but is at the same time intended, by common
action, to ensure social progress and seek the constant improvement of the living
and working conditions of their peoples, as emphasised by the Preamble to the
Treaty . . .
This double aim, which is at once economic and social, shows that the principle of
equal pay forms part of the foundations of the Community.

In these three short paragraphs the Court revealed an understanding of the

evolutionary development of Community social policy moving on from
purely negative integration and recognising that the social policy provisions
were as important as the economic ones, although further Treaty amendments would be required to make them free-standing.136 In the meantime
the Courts equalities jurisprudence has been at the forefront of this evolutionary process. Not only has the principle of equality been recognised
as a general principle of law in the context of equal treatment under the
Communitys Staff Regulations,137 but also equality is now clearly understood as a fundamental right, albeit presumptive,138 whose observance the
Court has a duty to ensure. Thus Article 119 EEC, and now Article 141
EC, is part of the implementation of the principle; it is not the source,139
and therefore, the principle of equality extends beyond these provisions for,
as the Court subsequently pronounced in 1978 in Defrenne III:140

136
This was first achieved by the insertion of a specific legislative base in Art 118a EEC by
the Single European Act, 1987 (now contained within the much expanded Art 137(1) and (2)
EC)see Case C84/94, United Kingdom v Council [1996] ECR I5755.
137
Case 20/71, Sabbatini v European Parliament [1972] ECR 345. See also, Case
21/74, Airola v Commission [1975] ECR 221; and Cases 75/82 and 117/82, Razzouk
and Beydoun v Commission [1984] ECR 1509. For comment, see Usher, n 131 above at
17577.
138
See S Fredman, European Community Discrimination Law: A Critique (1992) 21 Industrial Law Journal 119. As Fredman notes, at 125, the principle of equality can be trumped by
other considerations where discrimination can be justified by reasons which are not due to the
sex of the workersee Case 170/84, Bilka Kaufhaus v Weber [1986] ECR 1607.
139
C Docksey, The Principle of Equality Between Women and Men as a Fundamental Right
under Community Law (1991) 20 Industrial Law Journal 258; cf G de Brca, The Role of
Equality in European Law in A Dashwood and S OLeary (eds) The Principle of Equal Treatment in EC Law (Sweet & Maxwell, London, 1997) 1334.
140
Case 149/77, Defrenne v Sabena III [1978] ECR 1365, paras 2627. See also, Case
C13/94, P v S and Cornwall CC [1996] ECR I2143, where the Court held, at para 22, in
the context of Art 2(1) of Dir 76/207 on equal treatment in employment, that to tolerate discrimination against a transsexual undergoing gender reassignment would be tantamount, as
regards such a person, to a failure to respect the dignity and freedom to which he or she is
entitled, and which the Court has a duty to safeguard.

48 The Communitys New Deal

. . . respect for fundamental personal human rights is one of the general principles
of Community law . . . [there] can be no doubt that the elimination of discrimination based on sex forms part of those fundamental rights.

Moreover, as we shall see when we revisit the Courts equalities jurisprudence,141 the Court has chosen to update its formulation in Defrenne II, 25
years on, in Deutsche Telekom AG v Schrder,142 when, taking account of
Treaty changes and case law, it concluded that the economic aim pursued
by Article 119 EEC [now 141 EC], namely the elimination of distortions
of competition between undertakings established in different Member
States, is secondary to the social aim pursued by the same provision, which
constitutes the expression of a fundamental human right.143
In Defrenne II the Court went on to explain the scope of Article 119
EEC in the following terms:144
In fact since Article 119 is mandatory in nature, the prohibition on discrimination
between men and women applies not only to the action of public authorities, but
also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.

Article 119 EEC had therefore passed the tests for direct effect summed up
by AG Trebucchi as covering a Community provision that is:145
. . . clear and sufficiently precise in its content, does not contain any reservation and
is complete in itself in the sense that its application by the national courts does not
require the adoption of any subsequent measure of implementation either by the
States or the Community.

The most significant aspect of Defrenne II lay with the breadth of the
Courts interpretation of Article 119 EEC extending beyond the narrow
criterion of equal work. Hence, even though Directive 75/117 provided for
equal pay for work of equal value it was only capable of being given full
effect once this notion was brought within Article 119 EEC itself, making
it horizontally directly effective. The Court followed through this logic in
Worringham,146 holding that, as the Equal Pay Directive was essentially a
definition of Article 119 EEC, it was binding on private employers as an
integral part of the Treaty notwithstanding the parallel duty of the State to
ensure that national law was in compliance. As we shall see, when we return
to our second question below, the position would be quite different if the
individual had to rely only on the provisions of the Directive in question.
In Defrenne II the Court sought to explain the relationship between Article
141
142
143
144
145
146

See ch 10.
Case C50/96 [2000] ECR I743.
Ibid para 57.
Case 43/75 [1976] ECR 455, para 39.
Ibid at 486.
Case 69/80, Worringham and Humphries v Lloyds Bank [1981] ECR 767.

Equal Pay, Equal Treatment and the Court of Justice

49

119 EEC and the Equal Pay Directive, which had not yet entered into legal
force, in the following terms:147
It is impossible not to recognise that the complete implementation of the aim pursued
by Article 119, by means of the elimination of all discrimination, direct or indirect,
between men and women workers, not only as regards individual undertakings but
also entire branches of industry and even of the economic system as a whole, may in
certain cases involve the elaboration of criteria whose implementation necessitates
the taking of appropriate measures at Community and national level.

There was no specific reference to indirect or disguised discrimination in

Article 119 EEC but drawing on Defrenne II, the Court in Jenkins held that
the principle applied equally to both direct and indirect discrimination.148
The question for the national court would be one of causation.149 As the
Court explained in Enderby:150
. . . when a measure distinguishing between employees on the basis of their hours
of work has in practice an adverse impact on substantially more members of one
or other sex, that measure must be regarded as contrary to the objective pursued
by Article 119 . . . unless the employer shows that it is based on objectively justified
factors unrelated to any discrimination on the grounds of sex.

The Court has also liberally interpreted the meaning of pay under Article
119 EEC [now 141 EC]. In Garland v British Rail Engineering151 the Court
stated that pay was to be defined as including any consideration whether
immediate or future, provided that the worker receives it, albeit indirectly,
in respect of his employment from his employer.152 Special travel facilities
for retired employees granted by their former employer were covered by
this broad definition. In later cases the Court has applied this definition
to include, inter alia, sick pay,153 employers contributions to pension
schemes,154 redundancy payments,155 unfair dismissal compensation,156 survivors benefits,157 special bonuses,158 severance grants159 and occupational
147

Case 43/75 [1976] ECR 455, para 19.

Case 96/80, Jenkins v Kingsgate (Clothing Productions) Ltd [1981] ECR 911. See also,
Case 58/81, Commission v Luxembourg [1982] ECR 2175; Case 170/84, Bilka Kaufhaus v
Weber [1986] ECR 1607; and Case 171/88, Rinner Khn v FVW [1989] ECR 2743.
149
See E Ellis, The Definition of Discrimination in European Community Sex Equality Law
(1994) 19 European Law Review 563 at 573.
150
Case 127/92, Enderby v Frenchay HA [1993] ECR I5535.
151
Case 12/81 [1982] ECR 359.
152
Ibid para 5. See A Arnull, Article 119 and Equal Pay for Work of Equal Value (1986)
11 European Law Review 200 at 201.
153
Case 171/88, Rinner Khn v FVW [1989] ECR 2743.
154
Case 170/84, Bilka Kaufhaus v Weber [1986] ECR 1607.
155
Case C262/88, Barber v GRE [1990] ECR I1889.
156
Case C167/97, R v Secretary of State for Employment, ex parte Seymour-Smith and
Perez [1999] ECR I623.
157
Case C109/91, Ten Oever [1993] ECR I4879.
158
Case 58/81, Commission v Luxembourg [1982] ECR 2175.
159
Case 33/89, Kowalska v Frei und Hansestadt Hamburg [1989] ECR I2591.
148

50 The Communitys New Deal

pensions.160 In many of these circumstances the individual might otherwise
have had to rely on the Equal Treatment Directives to be discussed below.161
Although the period from the mid 1970s to the late 1980s is often
regarded as the high water mark of the Courts judicial activism,162 there
was, and indeed there remains today, a keen awareness at the Court of
national sensitivities. This has occasionally led to a softening of the blow
for the Member State concerned in more controversial judgments concerning equalities law. In Defrenne II, for example, the Court, following the
example of the US Supreme Court,163 ruled that the direct effect of Article
119 EEC would only arise prospectively and therefore, the ruling did not
apply to claims prior to the date of judgment, except in the case of applicants who had already initiated legal proceedings or made an equivalent
claim.164 The Court accepted economic arguments put forward by the UK
and Ireland, both new Member States at the time, that to apply the direct
effect of Article 119 EEC retrospectively would, they believed, cause acute
financial problems for companies and might even lead to bankruptcies.165
This highly questionable policy proposition was justified on the grounds of
legal certainty for all the interests involved. Fifteen years on, the Court in
Barber166 was to justify the prospective application of the principle of equal
pay to occupational pension schemes in near identical terms.
A further limiting factor concerns the relationship between the Court of
Justice and national courts. In order to ensure observance of Community
law on the ground, it is essential, as the Court explained in Simmenthal,167
for national courts and tribunals to operate as Community law courts and
160

Case C262/88, Barber v GRE [1990] ECR I1889.

For examples, see Case 69/80, Worringham and Humphries v Lloyds Bank [1981] ECR
767; Case 12/81, Garland v British Rail Engineering [1982] ECR 359; Case 23/83, Liefting
and others v Directie van het Akademisch Ziekenhuis bij Universitiet van Amsterdam [1984]
ECR 3225; and Case 33/89, Kowalska v Frei und Hansestadt Hamburg [1990] ECR I2591.
162
See H Rasmussen, Between Self-Restraint and Activism: A Judicial Policy for the
European Court (1988) 13 European Law Review 28 at 30; and T Koopmans, The Rle of
Law in the Next Stage of European Integration (1986) 35 International and Comparative
Law Quarterly 925; cf D Edward, Judicial ActivismMyth or Reality? in A Campbell and
M Voyati (eds) Legal Reasoning and Judicial Interpretation of European Law (Trenton
Publishing, Gosport, 1996) 2967.
163
Linkletter v Walter, 381 US 618 (1965). This was the first case where the US Supreme
Court applied a new constitutional rule only prospectively, not retrospectively. For discussion,
see M Cappelletti and W Cohen, Comparative Constitutional Law (Bobbs-Merrill, Indianapolis & New York, 1979) pp 98112.
164
[1976] ECR 455, paras 6975. According to Hartley there is no basis for this interpretation in the Treaty itself and the Courts limitation of the temporal effect of its rulings is
different from the American practice of prospective overruling because an American court
applies the old rule to the case itself, but announces that it will apply the new rule in future
cases. See Hartley, n 132 above, at 97; cf Arnull, n 133 above at 41314.
165
See Docksey, n 139 above, at 27475.
166
Case C262/88, Barber v GRE [1990] ECR I1889, paras 445.
167
Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal spa [1978] ECR
629.
161

Equal Pay, Equal Treatment and the Court of Justice

51

exercise the power to do everything necessary . . . to set aside national legal

provisions which might prevent Community rules from having full force
and effect.168
In effect, as the Court confirmed in Von Colson,169 when considering the
scope of Directive 76/207 on equal treatment in employment, the national
court must accept a Community method of construction that overrides both
national constitutional rules and established judicial principles such as the
doctrine of precedent.170 In return for this expectation of co-operation, the
Court has recognised that national courts have the task of determining procedural issues in accordance with their national legal systems.171 This is very
significant in the case of the equalities directives, which invariably contain
a clause intended to enable all persons who consider themselves wronged
by discrimination to pursue their claims by judicial process after possible
recourse to other competent authorities.172 The national court will have
autonomy to determine these procedural matters, including time limits
for bringing claims, providing that these rules are not less favourable than
those governing similar domestic actions (the principle of equivalence)173 nor
must they render virtually impossible or excessively difficult the exercise
of rights conferred by Community law (the principle of effectiveness).174
Therefore, the effectiveness of the protection afforded to the individual
under Community law depends to a large degree on the robustness of
national legal and administrative procedures.175
We now turn to our second question, which can be reformulated as
follows. Is an appropriately worded directive in the social policy field, or
part thereof, capable of amounting to a Community provision that may
be directly effective and, if so, does the obligation apply only to Member
States or extend also to individuals? The answer to this question is of critical importance in the case of the equalities directives because they seek to
secure substantive equality rights within and not across Member States.176
168

Ibid para 22.

Case 14/83, Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.
See C Docksey and B Fitzpatrick, The Duty of National Courts to Interpret Provisions
of National Law in Accordance with Community Law (1991) 20 Industrial Law Journal 113
at 11718; and A Arnull, The Incoming Tide: Responding to Marshall [1987] Public Law
383.
171
Case 33/76, Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, para 5; Case
45/76, Comet v Produktschap voor Siergewassen [1976] ECR 2043, paras 13 and 16.
172
For example, Dir 76/207, Art 6; and Dir 79/7, Art 6.
173
Derived from the principle of non-discrimination in Art 12 EC [ex 6 EEC]. See Case
C326/96, Levez v TH Jennings (Harlow Pools) Ltd [1998] ECR I7835, paras 3944.
174
See Joined Cases C430431/93, Van Schijndel and Van Veen v SPF [1995] ECR I4705,
para 17; Case C261/95, Palmisani v INPS [1997] ECR I4025, para 27; Case C246/96
Magorrian and Cunningham [1997] ECR I7153, para 37; Case C352/96, Levez, ibid para
18.
175
For full discussion of the development of these principles, see ch 7, pp 36374.
176
See E Meehan, Sex Equality Policies in the European Community (1990) 13 Journal of
European Integration 185 at 188.
169
170

52 The Communitys New Deal

Therefore, common standards are dependent, first and foremost, on adequate enforcement at national level and the onus is on national courts to
make appropriate references under Article 234 EC [ex 177 EEC].177 As
explained earlier while, under Article 249 EC [ex 189 EEC], a regulation
is directly applicable and binding in its entirety in the national legal
orders of the Member States, a directive is binding only as to the result to
be achieved, upon each Member State to which it is addressed.
The Courts solution has not been to apply the principle of direct effect
to directives in toto, but instead to infer an analogous obligation on the
State to ensure the effectiveness of the operative provisions in any Directive by reading Article 10 EC [ex 5 EEC] and Article 249 EC [ex 189 EEC]
together. As the Court subtly explained in Becker:178
Particularly in cases in which the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the
effectiveness of such a measure would be diminished if persons were prevented from
relying upon it in proceedings before a court and national courts were prevented
from taking it into consideration as an element of Community law.
Consequently, a Member State which has not adopted the implementing measures
required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.
Thus, wherever the provisions of a directive appear, as far as their subject matter is
concerned, to be unconditional and sufficiently precise, those provisions may, in the
absence of implementing measures adopted within the prescribed period, be relied
upon as against any national provision which is incompatible with the directive or
in so far as the provisions define rights which individuals are able to assert against
the State.

Therefore the rights of an individual to rely on a directive, in a Community law context, arise only against a Member State where that State has
failed to properly implement those provisions that are clearly intended for
his or her benefit. It is a subsidiary remedy, unlike direct application by a
regulation, that allows an individual to invoke the provisions of a directive
but does not affect its legal nature, which remains that of an obligation
addressed to Member States.179 This has been likened to the common law
principle of estoppel, for to deny the individual protection in these circumstances would be akin to allowing a defaulting Member State to escape
177
For discussion on the importance of dialogue between national courts and the ECJ in
this area, see Docksey and Fitzpatrick, n 170 above.
178
Case 8/81, Becker v FZA Mnster-Innenstadt [1982] ECR 53 at 701. See also, Case
9/70, Grad v Finanzamt Traunstein [1970] ECR 825; and Case 148/78, Pubblico Minstero v
Ratti [1979] ECR 1629.
179
See Usher, n 131 above at 172.

Equal Pay, Equal Treatment and the Court of Justice

53

from its Community law obligations.180 Conversely, this estoppel rationale

effectively excludes any separate action between private individuals in cases
where a directive has not been enacted in national law because a directive
does not of itself impose any obligation on such an individual.181
In equalities law, and in a wider social law context, this can lead to
perverse results. Let us consider the impact upon the effectiveness of the
protection afforded by Directive 76/207 on equal treatment in employment,
including promotion, vocational training and working conditions.182 The
guiding principle is set out in Article 2(1) of the Directive:
. . . the principle of equal treatment shall mean that there will be no discrimination
whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.

Further provisions deal specifically with measures to be taken by Member

States to ensure that there shall be no discrimination in the conditions for
access to jobs, vocational training and working conditions.183 The Court
has held in Marshall184 that the guarantee in respect of working conditions
in Article 5(1) of the Directive is directly effective. Whilst the Directive is
of general application as part of the principle of equality,185 it was not
founded upon Article 119 EEC and was therefore derived from the broad
social policy objectives in Article 117 EEC and adopted by virtue of Article
180
See P Pescatore, The Doctrine of Direct Effect: An Infant Disease of Community Law
(1983) 8 European Law Review 155 at 169; C Plaza Martin, Furthering the Effectiveness of EC
Directives and the Judicial Protection of Individual Rights Thereunder (1994) 43 International
and Comparative Law Quarterly 26 at 279; and Davies in Davies et al, n 1 above at 1046.
181
Ibid para 48. See Case C91/92, Faccini Dori v Recreb Srl [1994] ECR I3325.
182
OJ 1976, L39/40. The same principles apply to the other directives on equal treatment:
Dir 79/7/EEC on the progressive implementation of the principle of equal treatment for men
and women in matters of social security, OJ 1979, L6/24; Dir 86/378/EEC on occupational
social security, OJ 1986, L225/40 [now amended by Dir 96/97/EC, OJ 1997, L46/20]; and
Dir 86/613/EEC on self-employment, OJ 1986, L359/56.
183
Arts 3, 4 and 5 respectively. Art 2(2) allows for an exception for occupational activities
where the sex of the worker constitutes a determining factor. This derogation is subject to
two tests laid down by the Court. First, there is a test derived from the principle of proportionality whereby the activities in question, such as restrictions on women serving in the police
or armed forces, are limited to what is appropriate and necessary in order to achieve the aim
in view and requires the principle of equal treatment to be reconciled as far as is possible with
the requirements of public security which determine the context in which the activities in
question are to be performed: see Case 222/84, Johnston v RUC [1986] ECR 1651, para 38;
and Case C285/98, Kreil v Bundesrepublik Deutschland [2000] ECR I69, para 29. Second,
Member States have a certain degree of discretion when adopting measures that they consider
necessary in order to guarantee public security in a Member State: see Case C83/94, Leifer
and others [1995] ECR I3231, para 35. Member States must periodically assess the activities concerned to decide whether, in the light of social developments, the derogation may still
be maintained: see Case C273/97, Sirdar v The Army Board [1999] ECR I7403, para 31.
184
Case 152/84, Marshall v Southampton and South-West Hampshire AHA I [1986] ECR
723, para 52. Art 5(1) implements the principle of equal treatment set out in Art 2(1) of the
Directive.
185
Case 248/83, Commission v Germany [1985] ECR 1459, para 16.

54

The Communitys New Deal

235 EEC [now 308 EC]. It follows that direct effect in the context of Directive 76/207, and the other equal treatment directives adopted on the same
legal basis, is only vertical. In chapter 10, we will return to this question in
the present day context of the wider Article 141 EC, which makes a direct
reference to the principle of equal treatment and therefore reopens the
issue of the scope of the directives on equal treatment post-Amsterdam.186
In Marshall the Court held that where the UK had not properly implemented Directive 76/207, in the context of equal retirement ages between
men and women, it was still possible for Mrs Marshall, who was employed
by the State,187 to have a remedy against her employer, while Mrs Duke,
who was employed in the private sector, in otherwise near identical circumstances, was unsuccessful in a separate action decided by the national
court.188
Therefore the rights of the individual relying solely on a directive fall
short of horizontal direct effect. It has been forcibly argued that this
approach is inconsistent with the rule, established in Defrenne II,189 that
the fundamental right involved is the basis of the requirement on national
courts to apply it directly. The Court has preferred a narrower view that
subjects the fundamental right of equality to an overriding principle that,
notwithstanding any inequality of outcome, prevents the State from being
allowed to profit from its own wrongdoing and, consequentially, prohibits
any shift of responsibility from the State to a third party. The notion that
there is any correlative obligation on others has been firmly rejected.190
Rather a directive amounts to no more than a minimum guarantee for
the individual that is capable of application only against the State,191 or an
emanation thereof,192 deemed responsible for bringing national law into line
with its provisions.
Despite the limitations of this approach, the Court has remained keenly
aware of its gap filling role and the need to give social policy an integra186

Art 141(3) EC.

The health authority employing Mrs Marshall was a public authority and was deemed
to be an emanation of the State.
188
Duke v GEC Reliance Ltd [1988] 1 AC 618. See also, Finnegan v Clowney Youth Training Programme [1990] 2 AC 407.
189
Case 43/75 [1976] ECR 455, paras 3140. See Docksey and Fitzpatrick, n 170 above
at 116.
190
See generally, D Wyatt, The Direct Effect of Community Social LawNot Forgetting
Directives (1983) 8 European Law Review 241.
191
See Case C208/90, Emmott v Minister for Social Welfare and another [1991] ECR
I4269, at ground 5 of the judgment.
192
The State for these purposes can include a privately owned company controlled directly
or indirectly, or awarded special powers, by the State, which is performing a public service.
State responsibility is inferred by the degree of control exerted by the State over an essential
public service regardless of ownership per se: Case C188/89 Foster v British Gas [1990] ECR
I3313; and Cases C253258/96, Kampelmann and Others v Landschaftsverband WestfalenLippe and Stadtwerke Witten GmbH v Schade and Haseley v Stadtwerke Altena GmbH [1997]
ECR I6907.
187

The First Framework Directive on Health and Safety at Work 55

tionist push. As Docksey and Fitzpatrick have shown,193 the Court, by interpreting ex-Article 119 EEC very widely, has ensured that the concept of
equal pay is capable of application to situations, such as equal retirement
ages,194 that might otherwise be regarded as a condition of employment
under the Equal Treatment Directive and not horizontally directly effective.
Moreover, by asserting the primacy of state responsibility, the Court has
been able to rely upon the obligation in Article 10 EC [ex 5 EEC] to compel
Member States to implement directives and national courts to co-operate
in interpreting Community law purposively by overriding any competing
national constitutional provisions or doctrinal rules and, where appropriate, providing a national remedy to the individual consistent with the provisions of the relevant directive. The scope of application of directives has
been further enhanced by a liberal interpretation of the State in the context
of Article 249 EC [ex 189 EEC]. More recently, the Court has, as we shall
in chapter 7, sought to bridge the gap further by establishing grounds for
the individual to exercise a right of reparation against a Member State
deemed to be in default of its Community obligations.195
As the social policy provisions of the Treaty have gradually widened
post-1987, the place of the Court in the process has subtly changed, an
ongoing evolution to be evaluated in later chapters. In assessing the Courts
changing role, account will be taken of the way in which successive Treaty
amendments have gradually widened the Communitys legislative base for
adopting directives and extended the overarching social policy objectives.

IV HARMONISATION OF TECHNICAL STANDARDSTHE FIRST

FRAMEWORK DIRECTIVE ON HEALTH AND SAFETY AT WORK

Community activity in the field of occupational health and safety can be

traced back to the ECSC. From the outset the method followed was to establish expert groups, to promote inspection and enforcement of health and
safety standards consistent with ILO conventions196 and to have in mind the
possibility of harmonising technical standards, where necessary, by legislative or other means to prevent accidents and diseases and promote hygiene at
work.197 A tripartite Mines Safety Commission had been established in 1957
to follow developments in the safety of coalmines particularly in the field of
193

Docksey and Fitzpatrick, n 170 above at 11620.

Case C262/88, Barber v GRE [1990] ECR I1889.
195
Cases C6/90 and 9/90, Francovich and others v Italian Republic [1991] ECR I5357.
196
In particular, the 1947 ILO Convention No 81 on Labour Inspection in Industry and
Commerce. This was derived from Art 427 of the Treaty of Versailles, 1919, which stated
that: Each State should make provision for a system of inspection . . . in order to ensure the
enforcement of the laws and regulations for the protection of the employed. See Valticos &
von Potobsky, n 102 above at 25359.
197
See the listing in Art 118 EEC [now 140 EC].
194

56 The Communitys New Deal

accident prevention.198 The SAP promised steps to reduce the monotony of
work by introducing techniques of job enrichment and action to remove
dangers and nuisances at work.199 The immediate response was bureaucratic with the establishment in 1974 of an expert Advisory Committee on
Safety, Hygiene and Health Protection at Work to aid the Commission in the
preparation and implementation of activities in these fields.200 It was also
hoped that the Committee would be able to work out a response to specific
concerns about the use of dangerous substances and the number of avoidable
occupational accidents. In 1975 the Council set up the European Foundation
for the Improvement of Living and Working Conditions,201 based in Dublin,
as a research body in the area of social policy with a watching brief on matters
concerning health and safety and the working environment. Both the
Advisory Committee and the Dublin Foundation have given impetus to the
Commission, through their expertise and research, and this, in turn, has
driven forward the programmatic approach to this area.
Without this expertise it is unlikely that the highly technical and evolutionary legislation that followed would have been developed as quickly and
effectively. Indeed it has to be borne in mind that the experts had to synthesise and seek to upgrade national standards, where they existed, while
taking into account issues of regulatory fairness and effectiveness.202 The
first directives adopted under the SAP aimed at harmonising the rules concerning the provision of safety signs at work in order to indicate certain
hazards,203 and to protect the health and safety of workers from risks related
specifically to exposure to vinyl chloride monomer, a dangerous carcinogen.204 These were important steps but progress was not as rapid as the
Commission would have liked and, in a method later to be transferred to
other spheres of social policy, the Commission launched a series of specific
Safety and Health Action Programmes in 1978 and 1984 designed primarily to focus action on preventing accidents, identifying the causes of diseases, protecting workers against dangerous substances, collating statistics,
and providing training and information.205 These programmes formed a
198
ECSC Decision of 9 July 1957 concerning the terms of reference and rules of procedure
of the Mines Safety Commission, OJ 1957, B28/487, para 1 of the terms of reference.
199
Bulletin of the European Communities Supplement 2/74, p 18.
200
Decision 74/325/EEC, OJ 1975, L185/15. The Commissioner responsible for Employment and Social Affairs chairs the Committee, which is now made up of 90 members with six
appointed by each Member State on a tripartite basis.
201
Reg 1365/75/EEC, OJ 1975, L139/1.
202
See R Baldwin and T Daintith, The European Framework in R Baldwin and T
Daintith (eds) Harmonization and Hazard: Regulating Workplace Health and Safety in the
European Community (Graham & Trotman, London, 1992) 117 at 1.
203
Dir 77/576/EEC, OJ 1977, L229/12.
204
Dir 78/610/EEC, OJ 1978, L197/12.
205
Council Resolution of 29 June 1978 on an action programme of the European Communities on Safety and Health at Work, OJ 1978, C165/1; and Council Resolution of 27 Feb
1984 on a second programme of action of the European Communities on Safety and Health
at Work, OJ 1984, C67/2.

The First Framework Directive on Health and Safety at Work 57

basis for a logical progression starting with the gathering of information,
followed by encouraging co-operation and co-ordination and, leading to,
where required, legislation at Community level.206
One common thread running through the specific measures and programmes of this period was the concept of occupational safety based
on the assessment, avoidance or minimisation of risks to workers to be
achieved through a mix of short and long-term measures with managerial
responsibility placed on the employer. Safety was linked to health by focusing on both accidents and disease aetiology. There was also some indication of a wider approach to health and safety embracing the improvement
of human attitudes at the work place and taking account of the impact of
environmental conditions at work with specific attention being given to the
effects on pregnant women and young workers.207 In the period leading
up to the Single European Act, however, such ideas remained largely at the
formative stage.
Neal has identified four main strands of argument for Community activity in this field.208 First, it is argued that common safety and health
standards assist economic integration, by removing price differentials for
products reflecting variable safety and health costs in different Member
States. Secondly, the reduction of the human, social and economic costs of
work-related accidents and ill health brings about an improvement in the
quality of life for the whole Community. Thirdly, the introduction of more
efficient work practices increases productivity and promotes better industrial relations. Fourthly, the regulation of certain major risks should be
harmonised at supranational level because of the scale of resources
involved. Therefore, activity in this area is a humanitarian necessity and
makes sense economically. Viewed in this way, health and safety activity is
essentially consensual and responsive to the fact that new technology
combined with new substances and processes, including new dimensions of
scale, requires a practical and programmatic response.209
This approach is exemplified by the first framework Directive,
80/1107,210 on the protection of workers from risks related to exposure to
chemical, physical and biological agents at work. Occupational health and
safety is therefore aimed at preventing or limiting the exposure of workers
to hazards at the workplace in general and, if these hazards cannot be
eliminated, then protection should be provided to all workers likely to be
affected. The use of a framework directive was also highly significant,
206
A Neal, Promoting Occupational Safety and Health in the European Union in A Neal
and S Foyn (eds) Developing the Social Dimension in an Enlarged European Union (Scandinavian University Press, Oslo, 1995) 8099 at 82.
207
1978 Action Programme, n 205 above, paras 1114.
208
Neal, n 206 above at 80.
209
Ibid at 81.
210
Dir 80/1107/EEC, OJ 1980, L327/8, amended by Dir 88/642/EEC, OJ 1988, L356/74;
Dir 91/322/EEC, OJ 1991, L177/22; Dir 96/94/EC, OJ 1996, L338/86. Repealed and replaced
by Dir 98/24/EC, OJ 1998, L131/11.

58 The Communitys New Deal

reflecting not only the pragmatic political consensus that pertained in the
area of health and safety, even after the election of the Thatcher administration in the UK in 1979, but also the dynamism that was necessary to
keep pace with change. This was in tune with the ideas of the Economic
and Social Committee, in its Prospects for the 80s report,211 on the need
for guideline measures laying down general goals to be achieved that would
then be implemented at national and sectoral levels. In this way the first
framework Directive spawned a series of daughter directives concerning
specified agents such as lead, asbestos and noise.212 In each case assessments
of risk of exposure must be made and the workplaces affected identified
to determine the conditions under which the provisions apply. A trigger
mechanism is activated once exposure reaches a certain level bringing
protective measures into play and, in addition, there are maximum permitted exposure levels, known as limit values, and counter measures that
must be taken when these are exceeded.213 The first framework Directive,
and any measure that flows from it, was intended to be regularly revised
taking into account progress made in science and technology and in the light
of experience.214
Other proposals concerned with the broader working environment failed
to emerge in a binding legislative form over this period. At the most
there was soft law, for example a Council Recommendation on a 40-hour
working week and four weeks annual paid holiday,215 a forerunner of
the Working Time Directive216 adopted nearly 20 years later. Economic circumstances dictated that the Communitys primary social policy concern
was creating and protecting employment, with a nod to health and safety
at the workplace, rather than tackling the broader working environment
issues that were to be promoted later under the Social Charter once Article
118a EEC had been incorporated into the Treaty by the Single European
Act.
While the legislation and the related action programmes of this first phase
may be regarded as highly technical and limited in an ergonomic sense, as
211

Prospects for the 80s, Bulletin of the Economic and Social Committee, 10/81, 512 at

8.
212
Dir 82/605/EEC on the protection of workers from the risks related to exposure to metallic lead and its ionic compounds at work, OJ 1982, L247/12, repealed and replaced by Dir
98/24, n 210 above, Dir 83/477/EEC on the protection of workers from the risks related to
exposure to asbestos at work, OJ 1983, L263/25, amended by Dir 91/382/EEC, OJ 1991,
L206/16, and Dir 98/24, ibid. Dir 86/188/EEC on the protection of workers from the risks
related to the exposure to noise at work, OJ 1986, L137/28, amended by Dir 98/24, ibid. Dir
88/364/EEC on the protection of workers by banning certain specified agents and/or certain
work activities, OJ 1988, L179/44, repealed and replaced by Dir 98/24, ibid. Collectively these
directives regulate every area of commercial activity except air and sea transportation.
213
Neal, n 206 above at 89.
214
Ibid.
215
Council Recommendation 75/457/EEC, OJ 1975, L199/32.
216
Dir 93/104/EC, OJ 1993, L307/18.

Social Dialogue and Employee Involvement in Undertakings

59

we shall see when considering later developments in chapter 3, it was

by no means a narrow approach. Rather, the Communitys activities
were focused on a series of measures, intended to be dynamic and nonexhaustive, that built upon well-developed notions of health, safety and
hygiene at the workplace. In many ways the pace of progress was remarkable given the absence of a specific Treaty base for this legislation prior to
the Single European Act and the general trend towards deregulation clearly
evident by the early 1980s. Technical health and safety standards made
sense economically and were recognised as a necessity across the political
spectrum. Moreover, the development of the framework directive as an
evolutionary, dynamic and highly flexible legislative technique, was to
provide a building block for not only later measures that could fit within
the rubric of Directive 80/1107, but also for further development under the
much broader second framework Directive, 89/391/EEC.217

V THE ADVENT OF SOCIAL DIALOGUE AND EMPLOYEE

INVOLVEMENT IN UNDERTAKINGSDEMOCRATISATION OR
BARGAINING?

By the mid-1970s the Community had begun to search in earnest for a

policy nexus upon which to construct a coherent programme to promote
macroeconomic social dialogue between management and labour coupled
with greater involvement of employees in decision-making within undertakings. This agenda was already well established at a national level but
was it possible or indeed desirable to devise a transnational stratagem?218
The SAP had set out the core objectives in concise terms by calling
for:219
The progressive involvement of workers or their representatives in the life of undertakings in the Community.
The promotion of the involvement of management and labour in the economic and
social decisions of the Community.

From the outset the Commissions proposals for developing these ideas
have exposed tensions of a political, philosophical and organisational
217

OJ 1989, L183/1.
This was reflected by developments in countries where the idea of industrial partnership
was well rooted and being further developed. See, for example, the Biedenkopf Report in
Germany; Report of the Commission of Experts, Mitbestimmung im Unternehmen, Deutscher
Bundestag, 6. Wahlperiode, Drucksache VI/334 (Kohlhaumer, Stuttgart, 1970). These ideas
were also being promoted in other Member States where such developments were traditionally viewed with suspicion, notably the UK where a tripartite Social Contract had been signed
in 1975 rapidly followed by the Bullock Report; published as the Report of the Committee
of Inquiry on Industrial Democracy, Cmnd. 6706 (HM Stationary Office, London, 1977).
219
Bulletin of the European Communities Supplement 2/74, p 10.
218

60

The Communitys New Deal

nature. These formative attempts to develop social dialogue and employee

involvement were in many respects misguided and futile but the lessons
learned were invaluable, serving to inculcate later legislative adaptations and
the Amsterdam Social Chapter itself with an exciting new dynamic.
(1) The Advent of Social Dialogue
The formula contained within Article 118 EEC [now 140 EC] presented the
Commission with an intriguing strategic dilemma. The Commission were
given responsibility for arranging consultations across a selected range of
matters where primacy was to rest with the Member States. These included,
inter alia, employment, labour law and collective bargaining between
employers and workers. Self-evidently these consultations needed to involve
the employers and workers organisations responsible for conducting collective bargaining at national level notwithstanding the diversity of national
and sectoral bargaining systems prevalent in the Member States.
One route that the Commission might have chosen would have been to
arrange consultations on the basis that employers and workers organisations are essentially adversarial players whose core business is, and should
remain, collective bargaining for the purposes of industrial rule making. It
follows from this premise that a primary objective of these consultations
for the Community would be to achieve a greater degree of convergence
of bargaining systems as a means of accelerating the process of market
integration. This would, over time, bring collective labour relations within
the ambit of Community law. A second route, apparently more ambitious,
would be to seek to superimpose an architecture of Community-wide social
dialogue or joint consultation leading to mutually agreed statements or, ultimately, to framework agreements based on consensual partnership between
the social actors as an alternative to legislative harmonisation.
The second route was eventually chosen ahead of the first because it
offered the prospect of an evolving influence for employers and workers
organisations over the Communitys decision-making process without challenging the fundamentals of jealously guarded national industrial relations
processes. In this way the social partners would gradually become institutionalised and, through accretion on the basis of shared objectives, exert
genuine influence over the construction of Community law across a wide
range of social policy fields. Thus, paradoxically, national collective bargaining actors would, when operating at a Community level, have to assume
quite different and, in many cases, unrehearsed roles that, critics have
argued, may be inimical to their best interests.220 In later chapters we will
220
For a critique, see T Treu, European Collective Bargaining Levels and the Competences
of the Social Partners in Davies et al, n 1 above, 26987.

Social Dialogue and Employee Involvement in Undertakings

61

trace how this process has been brought to fruition through Treaty changes,
but let us first consider the early tentative steps taken by the Community
and seek to understand how these have foreshadowed later developments.
The idea of social participation in decision-making at Community level
can be traced back to the 1951 Treaty of Paris establishing the ECSC.
Indeed it can be argued that the ECSC Treaty, due to expire in July 2002,221
remains the most far reaching Community constitutional document, containing both specific social goals, to expand production and raise living
standards,222 and clearly defined roles for producers and workers on a
Consultative Committee,223 later to form the basis for the Economic and
Social Committee established under the EEC Treaty.224 Moreover, the
executive of the ECSC, the High Authority, institutional forerunner of
the European Commission, was originally composed of nine members
including a trade union representative.225
In practice the ECSC provided a useful vehicle for the launch of a sectoral
approach to Community social dialogue, which was the basis for the
incremental development of a European-wide framework of consultation. A
joint committee was established for the coal and steel sector in 1955 and,
with the launch of the EEC, further committees were formed covering
agriculture, footwear, transportroad, rail and seaand sea fishing.226
Many of these committees were inactive, issuing occasional opinions or joint
recommendations. Employers organisations were underdeveloped at a
European level and, in some Member States, at a national level. Employers
were also unenthusiastic about the idea of formalised Community-wide
agreements. One notable exception was the agricultural sector where the
Joint Committee on the Social Problems of Agricultural Workers reached
an agreement in 1978 to restrict the working week of agricultural workers
on arable land, an agreement extended to all agricultural workers in 1981.227
Alongside these joint committees there existed an array of other fora. The
Economic and Social Committee, comprising representatives of employers,
workers and other economic actors, has had a right to initiate opinions,
published in the Official Journal of the European Communities, since the
Paris Summit of 1972. A variety of inter-sectoral advisory committees were
set up where experience could be shared concerning, inter alia, vocational
training, free movement, social security and occupational health.

221

By virtue of Art 97 ECSC.

Preamble of the ECSC, fourth recital.
223
Art 18 ECSC.
224
Art 4(2) EEC [now 7(2) EC].
225
See P Venturini, 1992: The European Social Dimension (European Communities,
Luxembourg, 1989) pp 215.
226
Ibid pp 8394.
227
A useful summary of developments can be found in the Commission Communication
concerning the development of Social Dialogue at Community level, COM(96) 448, Annex I.
222

62 The Communitys New Deal

Tripartitism, the method practised by the ILO, was not initially favoured
as a Community mechanism, with the sole exception of the Standing
Committee on Employment, established in 1970,228 which brought together
representatives of the social partners, the Commission and the Council. In
practice the Standing Committee has had a limited impact and faced criticism by the Commission for its undisputed lack of efficiency.229 Interest in
tripartitism at Community level was not to be rekindled until the late 1990s
when the Standing Committee was substantially reformed230 and a separate
Employment Committee established as part of the Employment Title in the
Amsterdam Treaty, Articles 125130 EC.231
In conclusion, these embryonic forms of social dialogue achieved remarkably little and were widely regarded as peripheral to the Communitys social
policy project. There was little indication of the revolution to come. When
Jacques Delors, as the incoming President of the European Commission,
relaunched the Social Dialogue in 1985 and brought the social partners
together at a meeting at Val Duchesse, his aim was to end this fragmentation and make the social partners an integral part of the process of social
policy making, filling a vacuum left by the Member States, and creating the
basis for the establishment of a European Industrial Relations Area.232 This
metamorphosis may have initially been slow but, as we trace the ensuing
developments, its profound impact will swiftly become apparent.

(2) Information, Consultation and Participation of Workers

in Undertakings
The Commission, in its 1975 Green Paper on Employee Participation and
Company Structure, frankly acknowledged that, by engaging in a debate
about the role of employees in relation to decision-making within companies, they were raising an undeniably controversial and difficult issue.233
Not only was there a palpable disagreement over the rationale for the establishment of structures for employee involvement but also, even if such
differences could be set aside, the form that such structures should take
produced, and continues to emit, more heat than light. For, as the ILO noted
in an influential report:234
228

Decision 70/532/EEC, OJ 1970, L273/25.

Commission Communication on adapting and promoting the Social Dialogue at
Community level, COM(98) 322, p 10.
230
Decision 99/207/EC, OJ 1999, L72/33, repealing Decision 70/532.
231
Decision 2000/98/EC, OJ 2000, L29/21.
232
See generally, P Teague and J Grahl, 1992 and the Emergence of a European Industrial
Relations Area (1990) 13 Journal of European Integration 167.
233
Bulletin of the European Communities Supplement 8/75, p 7.
234
Workers Participation in Decisions within Undertakings (ILO, Geneva, 1981) p 21. My
emphasis.
229

Social Dialogue and Employee Involvement in Undertakings

63

The belief that workers participation in decisions within undertakings ought to be

promoted for some reason does not in itself imply acceptance of a particular method
of bringing it about. The diversity of methods is as great as the diversity of aims.

The ILO Report usefully identifies the complex reasons for such proposals
at national and international level as involving one or a combination of
ethical, socio-political and economic considerations.235 The first consideration, the ethical or moral case, is the simplest and most broadly acceptable
amounting, in essence, to recognition of human rights at the work place.236
Paternalism based on the masters/employers right to command his
servant/employee is no longer acceptable in post-industrial society.237 It
follows that it is a pre-requisite of the concept of social justice that an
employee should receive recognition, treatment and attention as a human
being rather than a mere statistical unit of production,238 a conception well
founded in international law.239 The Green Paper notes that decisions taken
by or within the enterprise can have a substantial effect on the sense of
dignity and autonomy as human beings of employees.240
The second consideration, the socio-political underpinning for employee
involvement in undertakings, is a far more controversial issue. Multifarious goals can be ranged together under the banner of industrial
democracy. Can political democracy be equated with a form of industrial
or corporate suffrage and, if so, how far should the democratic process
reach?241 More pointedly, should industrial democracy be understood in
its Webbian construct242 as beginning and ending with the workplace or
plant-level collective bargaining substructure?243 Alternatively, is the
concept capable of being extended to the superstructure, by establishing
forms of representative employee participation in board-level corporate
decision-making? The Green Paper suggested a broad approach based on
recognition of the:244
235

Ibid p 9.
Ibid p 10.
237
For a fascinating insight into the early development of workers participation, see T
Ramm, Workers Participation, the Representation of Labour and Special Labour Courts
in B Hepple (ed) The Making of Labour Law in Europe: A Comparative Study of Nine
Countries up to 1945 (Mansell, London and New York, 1987) 24276.
238
ILO Report, n 234 above, p 10.
239
Most importantly in the Universal Declaration of Human Rights (1948). Art 22 declares
that: Everyone, as a member of society . . . is entitled to realisation . . . of the economic, social
and cultural rights indispensable for his dignity and the free development of his personality.
240
Green Paper, n 233 above, p 9.
241
See ILO Report, n 234 above, p 11. See also, E Batstone in Industrial Democracy:
European Experience, reports prepared by E Batstone and P Davies for the Industrial
Democracy Committee (HMSO, London, 1976) pp 1011.
242
See S Webb and B Webb, Industrial Democracy (Longmans, London, 1898). For a discussion, see O Kahn-Freund, Industrial Democracy (1977) 6 Industrial Law Journal 77; cf
P Davies & Lord Wedderburn, The Land of Industrial Democracy (1977) 6 Industrial Law
Journal 197.
243
This terminology is derived from the Bullock Report, n 218 above.
244
Green Paper, n 233 above, p 9. My emphasis.
236

64 The Communitys New Deal

. . . democratic imperative that those who will be substantially affected by decisions
made by social and political institutions must be involved in the making of those
decisions.

An ILO Symposium held in Oslo in August 1974 brought to the fore

the political dimension by identifying two alternative varieties of
participation:245
Workers participation is an eminently political issue . . . This is least visible in those
countries where workers participation is looked upon merely as a management
technique aimed at improving either work organisation at the shop-floor level or
employer-employee communications. It is clearest in schemes that aim at redefining
the respective roles of owners, managers and workers in the enterprise, and at
radically changing the power relationships between them.

In the Community context, proposals put forward by the Commission have

amounted to a hybrid approach to these socio-political conceptions. On the
one hand, the Commission has, through DGV on Social Affairs, focused its
legislative strategy primarily on information and consultation as a management technique, either for the purposes of transnational consultation in
multinational enterprises in the form of proposals for a directive on European Works Councils,246 or as a means of communication with employees in
the specific event of a collective dismissal,247 or the transfer of an undertaking,248 and, more generally, for the purposes of consultation and balanced
participation on all questions relating to safety and health at work.249
The corresponding directives have placed procedural obligations on management to inform and consult without affecting their ultimate decisionmaking prerogative or the pluralist structure and operation of companies
throughout the Member States. They provide a filter for management
and trade unions to be involved in joint regulation of the workplace,250
245
Summarised by the rapporteur: J Schregle, Workers participation in decisions within
undertakings in International Labour Review (ILO, Geneva, JanFeb 1976) pp 23. My
emphasis. Discussed in the ILO Report, n 234 above, pp 1314.
246
Originally proposed as the Vredeling Directivenamed after the Social Affairs Commissioner responsibleon procedures for informing and consulting the employees of undertakings with complex structures, in particular transnational undertakings, OJ 1980, C297/3.
See also, the equally unsuccessful Richard Directivenamed after Vredelings successorOJ
1983, C217/3. The European Works Councils Directive, 94/45/EC, OJ 1994, L 254/64, was
eventually adopted by virtue of the Agreement on Social Policy.
247
Art 2 of Dir 75/129/EEC, OJ 1975, L48/29, as amended by Art 1(2) of Dir 92/56/EEC,
now consolidated in Art 2 of Dir 98/59/EC, OJ 1998, L225/16.
248
Art 6 of Dir 77/187/EEC, OJ 1977, L61/26, amended by Art 1(2) of Dir 98/50/EC, OJ
1998, L201/88, now consolidated within Art 7 of Dir 2001/23, OJ 2001, L82/16.
249
Art 11 of Dir 89/391/EEC, OJ 1989, L183/1. This would appear to go further than mere
consultation and, according to Weiss, provides for a stronger degree of influence. See M
Weiss, The European Communitys Approach to Workers Participation in Neal and Foyn,
n 206 above, 10024 at 1067.
250
See, generally, A Flanders, Management and Unions: the Theory and Reform of Industrial Relations (Faber, London, 1970).

Social Dialogue and Employee Involvement in Undertakings

65

an approach that does not undermine the industrial freedom of action of

the parties while allowing for a degree of consensus or conflictual
partnership.251 Moreover, while placing a duty on management to inform
and consult trade unions, works councils, or other representatives of
employees in good faith, these directives do not impose a duty to bargain
akin to the American model by which unions can compel management to
negotiate with them over pay and other conditions of employment.252
On the other hand, the former DGXV on Financial Services and
Company Law, sought, over a period of 30 years, to directly address the
issue of redefining power relationships through workers participation proposals tied in with harmonisation of company structures, as proposed in
the original draft Fifth Company Law Directive,253 and the establishment
of the European Company as an optional Community model.254 This
unitary approach to company structure and employee participation is based
on the notion that companies can and should act in the best interests of
shareholders and employees. In those circumstances, it is argued that there
is genuine employee participation that transcends the plant level and leads
to co-determination or, more accurately, a better form of control of, or
influence over, enterprise policy.255
While measures primarily concerning the nature of management information and decision-making communicated to employees have, over time,
won acceptance and been incorporated into Community directives, proposals concerning corporate structure and the means by which influence is
exercised at a strategic level have been far less successful. Slow progress in
the field of company structure can partly be blamed on the rigidity and
prescriptiveness of the Commissions proposals, and in part, also, on the
absence of a consensus around the link between socio-political considerations and the third element, the economic rationale.
Broadly speaking the economic case for employee involvement in
decision-making within undertakings can be summarised as: increasing the
efficiency of the undertaking through industrial co-operation; improving
the quantity and quality of output by creating a sense of identity within the
undertaking; adapting useful ideas made by workers; and reducing the
capacity for industrial conflict. This is because, inter alia, workers may
work more productively because they are sharing in decisions that affect

251

See Davies & Wedderburn, n 242 above at 198.

National Labor Relations Act, 1964, ss 7, 8 (a) (5) and (9) (a). See Fibreboard Products
Corporation v NLRB [1964] 379 US 203. Discussed by R Rabin, Fibreboard and the
Termination of Bargaining Unit Work: The Search for Standards in Defining the Scope of the
Duty to Bargain (1971) 71 Columbia Law Review 803.
253
Bulletin of the European Communities Supplement 6/83.
254
Bulletin of the European Communities Supplement 4/75, COM(88) 320.
255
See S Simitis, Workers Participation in the EnterpriseTranscending Company Law
(1975) 38 Modern Law Review 1 at 78.
252

66

The Communitys New Deal

them while the process itself may act as a spur to managerial efficiency.256
These ideas are attractive to management so long as the structures adopted
neither profoundly challenge the existing distribution of economic power
nor seriously threaten the exercise of the managerial prerogative. From a
trade union perspective such notions are double-edged, simultaneously
offering the potential of greater influence while creating the danger of
assumed responsibility without sufficient power over the ultimate decision.
This may lead to a perception of elitism, arguments about accountability
and a build up of pressures and conflicts within the operational structures
of employee representation.
The difficulties arising from these perceptions might have been overcome
in this period if the Commission had taken account of national diversity in
company structures and industrial relations traditions when drawing up and
augmenting its proposals. Unfortunately the company law initiatives of the
1970s and early 1980s served only to compound the problem by exacerbating the differences between the social partners, the Member States and
within the Commission itself. At the root of the problem lay an attempt to
impose a heavily regulated and unitary form of company structure and
workers participation throughout the Community.
In our earlier discussion we considered the variety of legal families operative in the labour law of the Member States.257 In the specific context of
workers participation within undertakings, the legal and practical elements
are even more diverse and heterogeneous. Docksey helpfully divides the
national employee representation mechanisms into dual and singlechannel approaches.258 The dual-channel approach, developed most
markedly in Germany and the Netherlands, divides employee representation
into two distinct spheres of operation. At one level there will be the collective
bargaining function involving trade unions both at the work place and
externally or industry-wide. At another level there is the information and
consultation function performed by works councils or equivalent bodies
democratically elected by the entire work force.259 The dual channel
approach may also combine information and consultation mechanisms with
active employee participation in the strategic decision-making of companies
through a two-tier system of directorships whereby each company will normally have a supervisory board, including representatives of employees and
shareholders, responsible for overall control of a management board that is
256
See K Walker, Workers Participation in Management: Problems, Practice and Prospects
in 1974 IILS Bulletin (International Institute of Labour Studies, Geneva) No 12, 335.
257
See R Nielsen, The Contract of Employment in the Member States of the European
Communities and in European Community Law (1990) 33 German Yearbook of International Law 258.
258
C Docksey, Employee Information and Consultation Rights in the Member States of the
European Communities (1987) 7 Comparative Labor Law Journal 32 at 35.
259
Ibid. This approach is broadly followed in Denmark, France, Belgium and Luxembourg.

Social Dialogue and Employee Involvement in Undertakings

67

in charge of day-to-day activities.260 By contrast, the single-channel or

monist approach has traditionally involved employee representation by trade
unions alone, although employers must now have mechanisms to consult all
workers irrespective of trade union recognition or membership in circumstances where the directives on Collective Redundancies and Acquired Rights
are operative.261 In the UK and Ireland the single-channel operates alongside a single board of directors with no employee representation.
When the Commission was considering the best way forward during
the first SAP they had the option of allowing for diversity, by permitting
Member States to continue with either a dualist or a monist system of
company organisation alongside a compulsory element of employee
involvement. This optional model was operative in France and, even within
a single-channel, it would be possible to adjust the structure to allow for
non-executive directors to represent the interests of workers, or to establish a special consultative committee akin to a works council.262 Indeed, the
Economic and Social Committee, in an Opinion of April 1974, promoted
diversity.263 The Committee found that it was premature to impose
a uniform company structure when the interests of shareholders and
employees could be protected under either system providing that there
was an element of employee involvement.
The Commissions decision to proceed with the blunt instrument of a
mandatory dual-channel system relying closely on the German/Dutch
model of two-tier management and supervisory boards for all public companies, as set out in the early drafts of the Fifth Company Law Directive,264
was based on a desire to align their proposals with a wave of company law
harmonisation measures intended to remove barriers to cross-border competition relying on the somewhat ambiguous wording of Article 44(2)(g) EC
[ex 54(3)(g) EEC], that provides a legal base for directives to co-ordinate:265
. . . to the necessary extent the safeguards which, for the protection of the interests
of members and others, are required by member states of companies and firms . . .
with a view to making such safeguards equivalent throughout the Community;
260
See T Conlon, Industrial Democracy and EEC Company Law: A Review of the Draft
Fifth Directive (1975) 24 International and Comparative Law Quarterly 348 at 3489.
261
Following the judgment of the Court in Cases C382383/92, Commission v United
Kingdom [1994] ECR I2435. The single-channel is found not only in the UK and Ireland,
but also, in a differing form, in Italy and Greece.
262
See Conlon, n 260 above at 3589.
263
Doc CES 861/73, 22 April 1974.
264
OJ 1972, C131/44. For discussion, see Conlon, n 260 above; W Kolvenbach, EEC
Company Law Harmonization and Worker Participation (1990) University of Pennsylvania
Journal of International Business Law 709; J Temple Lang, The Fifth EEC Directive on the
Harmonization of Company Law (1975) 12 Common Market Law Review 155; W Dubler,
The Employee Participation DirectiveA Realistic Utopia? (1977) 14 Common Market Law
Review 17; and J Welch, The Fifth Draft DirectiveA False Dawn (1983) 8 European Law
Review 83.
265
My emphasis.

68 The Communitys New Deal

This provision must be understood in the context of the freedom of companies to establish their operations throughout the Member States, as provided for in Article 48 EC [ex 58 EEC], and therefore any arrangements
for the representation of employees on corporate boards as others are
essentially an adjunct to this general objective. Formulated prior to the
enlargement of the Community from six to nine members, these proposals,
along with similar measures for the establishment of optional European
Companies,266 were destined to fail in the face of implacable opposition
from companies based in the UK and Ireland.267 The relaunched draft Fifth
Directive of 1983268 was a pale shadow of its former self and, while it
allowed for both dualist and monist boards, with separate managerial and
supervisory functions, the element of employee participation was diluted to
the extent that a separate and essentially toothless consultative council
could be substituted for employee representation on the corporate board.
The result was a messy compromise that provoked opposition from all
sides.269 Ultimately company law which, in many other aspects, has converged at Community level, has proved to be an inappropriate vehicle for
harmonising systems of collective labour relations and labour law that are
deeply rooted in national regional, social and economic structures.270
While the Communitys pursuit of employee participation through the
reform of company structure was premature, it was also a distraction
from any attempt to proffer more coherent alternative models of employee
involvement in the transnational context.271 The most important of these
alternatives, emanating from the former DGV of the Commission, was first
mooted in the so-called Vredeling proposal on transnational procedures
for information and consultation in large multinationals.272 DGVs pragmatic proposal sought to place an obligation on large transnational enterprises, with more than 1,000 employees, to provide regular communication
and consultation with employees representatives. The Commission sought
to advance this policy on the basis of shared values and good corporate
practice whilst insisting that there would be no change in the structures of
266
Bulletin of the European Communities Supplement 8/70. Eventually a revised proposal
for establishing the European Company, as a voluntary option for transnational companies,
allowing for either a single tier or dual tier board, was successful 30 years on: Reg
2157/2001/EC on the Statute for a European Company (SE) OJ 2001, L294/1; and Dir
2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees, OJ 2001, L294/22.
267
For example, see the Watkinson Report: The Responsibility of the British Company,
Final Report of the Company Affairs Committee (Confederation of British Industry, London,
1973).
268
OJ 1983, C240/2.
269
See Weiss in Davies et al, n 1 above at 2203.
270
Lord Wedderburn, Industrial Relations and the Courts (1980) 9 Industrial Law Journal
65 at 71. See Welch, n 264 above at 84.
271
See Weiss in Davies et al, n 1 above at 2234.
272
OJ 1980, C297/3.

Social Dialogue and Employee Involvement in Undertakings

69

companies and the formal arrangements for worker representation afforded

by the laws and practices of the Member States.273
The Vredeling proposal represented a considered and more realistic
approach to the thorny subject of employee involvement in undertakings.
DGV were seeking consensus while closely attuning their ideas with principles founded in international law, specifically the ILOs Tripartite Declaration of 1977 that called for information to be conveyed in a way that
enabled employees representatives to obtain a true and fair view of the performance of the enterprise and consultation concerning matters with major
employment effects.274 Vredeling provided a testing ground for ideas that,
despite their pragmatism, were still launched ahead of their time. Indeed
Vredeling offered a blueprint for what was to emerge a decade later as
the European Works Council Directive.275 In the short to medium-term,
however, these proposals had to be put into cold storage, partly because
the social partners, particularly the employers organisations, lacked enthusiasm for yet another new drive for Euro-corporatism, but more importantly, because there had been a sea-change in the political climate.
By 1980, when the Vredeling proposal was published, the first Social
Action Programme was nearly exhausted with only what one former Social
Affairs Commissioner derisively described as fag-end measures remaining.276 In 1979 a new Conservative Government led by Margaret Thatcher
had been elected in the UK. Thatcher, who had campaigned for British membership of the EEC, presented herself as a positive European who favoured
market integration but fiercely opposed what she regarded as unnecessary
regulation. The weaknesses of the social provisions of the EEC Treaty,
dependent on unanimity and liberal interpretation, were swiftly exposed
once a solitary and geopolitically powerful Member State sought to challenge the economic and social assumptions that had underpinned the
first Social Action Programme. Along with Vredeling, other proposals on
working time,277 part-time work278 and temporary work279 fell by the
wayside. Other new players were, however, about to take their place on the
Communitys stage: Francois Mitterand, Helmut Kohl and, most importantly in this context, Jacques Delors, the candidate supported by Mrs
Thatcher to head up the European Commission in 1985.
273

See Docksey (1987, Comparative Labor Law Journal) n 258 above at 34.
ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social
Policy of 16 Nov 1977. Vredeling also reflected the OECD Guidelines for Multinational
Enterprises of 21 June 1976. For a discussion, see C Docksey, Information and Consultation
of Employees: The United Kingdom and the Vredeling Directive (1986) 49 Modern Law
Review 282 at 2838.
275
Dir 94/45/EC, OJ 1994, L254/64.
276
Shanks, n 7 above at 382.
277
Council Resolution of 18 Dec 1979 on the adaptation of working time, OJ 1980, C2/1.
278
OJ 1982, C62/7.
279
OJ 1982, C128/2.
274

3
The Single European ActCatalyst
for Action I
I INTRODUCTION

S THE COMMUNITY entered the 1980s the prevailing mood was

one of pessimism. A bleak report of the Economic and Social Committee starkly set out the challenges for the decade ahead in two
concise paragraphs:1
On the economic and social front, unemployment is rising, economic and social
inequalities are growing, ground is being lost to other large industrialised countries
and the Communitys economic structures are ill-equipped to cope with the rise in
energy prices and technological change.
On the political and institutional front, there is a lack of solidarity between the
Member States, who are incapable of transforming either the guidelines set by the
European Council or the initiatives taken by the Commission or the European Parliament into Council of Ministers decisions. This shows that the political will to
attain the underlying objectives of the Community is lacking.

A decade earlier, most notably at the Paris Summit of 1972, the Community had exhibited an aura of invincibility based on apparently inexorable
economic growth and social progress. By 1980, this mood of optimism, or
rather complacency, had been replaced by a general malaise. The US and
Japan had rapidly overtaken the Community both in economic output and
competitiveness and, where there was once a comfortable certainty of
success based on a mix of regulated free trade, strong state sectors, social
protection and industrial partnership, there was now incoherence and a
policy vacuum. A new phrase entered the Communitys lexicon: Eurosclerosis. As Grahl and Teague explain:2
The notion is that slower growth, rising unemployment and stagnant productivity
in advanced capitalist economies result from the impairment of market forces. The
1
Prospects for the 80s, Bulletin of the Economic and Social Committee, 10/81, pp 512
at 5.
2
J Grahl and P Teague, 1992The Big Market: The Future of the European Community
(Lawrence & Wishart, London, 1990) p 20.

72 The Single European ActCatalyst for Action I

necessary adaptations and adjustments to changing tastes and technologies are seen
as obstructed by rigidities in the price system or in the reallocation of productive
resources, for which the main responsibility lies with government: intervention,
regulation, taxation are seen as obscuring market signals or blunting the incentives
to respond to them. Organised labour is also seen as contributing to economic rigidities, by imposing collective agreements which fix rigid wage rates and circumscribe
the tasks which may be ascribed to workers.

Those who advanced the notion of Eurosclerosis were in fact the advocates of a new certainty known as neo-liberalism.3 For the neo-liberals the
path to economic recovery depended on the swift removal of market restrictions and a minimal level of institutional or state involvement. Impetus for
the rapid advancement of the neo-liberal agenda was provided by the
emergence of Margaret Thatcher and Ronald Reagan on the global stage.
Advocates of Eurocorporatism, who argued that a more interventionist
approach to the labour market, promoting education and vocational training, would reduce unemployment and lead to greater productivity, earnestly
countered this fresh push for Euroliberalism.4 Nonetheless, neo-liberals
were in the ascendancy over Keynesians throughout the 1980s.5
For the Community, the challenge was to find a response that combined
the advantages of the neo-liberal approachflexibility, innovation and
greater autonomywith policies to combat its disadvantagessocial division, cyclical boom and bust and unemployment. What followed was a
powerful market-oriented drive for an area without frontiers with a strong
deregulatory emphasis, coupled with a much weaker steer towards a social
dimension of the market. The focus switched from legislative harmonisation to social consensus and, where necessary, both binding and nonbinding measuresor a mix of hard and soft lawintended to establish
minimum standards at Community level while leaving a wide range of discretion to the Member States.
In the next two chapters we will seek to explore the effectiveness of the
two main strands of Community social policy in operation from the mid1980s through to the entry into force of the Agreement on Social Policy in
1993. The first strand, discussed in this chapter, was the development of a
social dimension revolving around the Commissions Internal Market programme and buttressed by specific Treaty changes brought about by the
Single European Act. As a development of the original market integration
3
See, for example, R Lawrence and C Schultz (eds) Barriers to European Growth: A
Transatlantic View (Brookings, Washington DC, 1987).
4
See W Streeck, Skills and the Limits of Neo-Liberalism: The Enterprise of the Future as
a Place of Learning (1989) 3 Work, Employment and Society 1; and D Soskice, Industrial
Relations and Unemployment: The Case for Flexible Corporatism in J Kriegel, E Matzner and
A Roncaglia (eds) Barriers to Full Employment (Macmillan, London, 1988).
5
For a balanced critique of this debate, see M Rhodes, The Future of the Social Dimension: Labour Market Regulation in Post-1992 Europe (1992) 30 Journal of Common Market
Studies 23.

The Social Dimension of the Internal Market 73

model of the Community,6 this policy commanded the broad support of all
the Member States. Under this first strand, the Community was able to take
steps to improve the working environment, by way of health and safety
measures, and, on a broader front, to promote social dialogue. The second
strand, considered in the next chapter, was more experimental and lacked
universal support. This was based on a much wider fundamental rights
orientation to social policy linked to, but not dependent upon, economic
objectives. This emerging social citizenship model7 relied on two nonbinding policy instruments: the Social Charter, a solemn declaration made
by 11 Member States at Strasbourg in 1989; and the Commissions accompanying Action Programme. While tentative steps were taken to further
the second strand from the mid-1980s, it was the internal market, and
the balance between its economic and social spheres, that first provided the
momentum for a new, more purposive and dynamic, phase of European
integration.

II THE SOCIAL DIMENSION OF THE INTERNAL MARKET

At the Fontainebleau European Council of June 1984, the Communitys

leaders sought to settle their outstanding differences. After much haggling,
agreement was reached on a 66 per cent budget rebate for the UK in return
for minor adjustments to the Common Agricultural Policy and the establishment of a framework for resolving wider budgetary issues required for
the accession of Spain and Portugal in 1986.8 The time was ripe for a new
initiative that could combine the free market instincts of the British Conservatives under Margaret Thatcher with the technocratic vision of the
French Socialists led by Franois Mitterand. Thatcher, already the Communitys longest serving leader, issued an influential paper at Fontainebleau
entitled EuropeThe Future9 which, while paying homage to intergovernmental technology programmes supported by Mitterand, marked a
new drive for a market-oriented approach to job creation and competitiveness. Thatcher warned that:10
Only by a sustained effort to remove remaining obstacles to intra-Community trade
can we enable the citizens of Europe to benefit from the dynamic effects of a fully
6
See B Fitzpatrick, Straining the Definition of Health and Safety (1997) 26 Industrial
Law Journal 115 at 11719.
7
Ibid. See also, J Kenner, Citizenship and Fundamental Rights: Reshaping the European
Social Model in J Kenner (ed) Trends in European Social Policy (Dartmouth, Aldershot, 1995)
384.
8
The UKs rebate was worth 1,000 million at 1984 prices and was set without the imposition of a time limit. The overall budgetary settlement was finally reached at a meeting of
Finance Ministers in Dublin on 15/16 Sept 1984.
9
The text of the paper is reproduced at (1984) 23 Journal of Common Market Studies 73.
10
Ibid at 74.

74 The Single European ActCatalyst for Action I

integrated common market with immense purchasing power . . . This means action
to harmonize standards and prevent their deliberate use as barriers to intraCommunity trade; more rapid and better co-ordinated customs procedures; a major
effort to improve mutual recognition of professional qualifications; and liberalising
trade in services.

Thatcher believed that, if there was the necessary political will, these
objectives could be fully achieved under the provisions of the Treaty of
Rome, but others were not convinced and, as a compromise, the leaders
at Fontainebleau agreed to the establishment of an ad hoc Committee for
Institutional Affairs to look into the matter.11 Parallel developments were
taking place in the European Parliament where, shortly before the second
direct election in June 1984, a radical Draft Treaty establishing the European Union was adopted with the federalist pioneer, Alterio Spinelli, as
rapporteur.12
The stage was now set for the appearance of Jacques Delors as President
of the Commission in January 1985. Delors, who had served as Mitterands
Finance Minister, was credited with steering the French economy to success
by implementing a tough austerity package and a small measure of market
deregulation. He was greatly admired by Thatcher who supported him over
Frances preferred candidate, Claude Cheysson. Moreover, Delors was a
strong supporter of the drive for the single market who recognised that
market integration had to be given priority while right of centre governments were in the ascendancy in many Member States.13 Delors was,
however, approaching the task from a fundamentally different perspective.
For Thatcher, the single market was an end in itself, but for Delors it was
a means to an end.14 Delors Big Idea was to vigorously pursue market
integration but only because it was a necessary first step to his ultimate
objective of political integration. For this reason Delors set a target date of
31 December 1992 for the completion of the single market to give his programme the necessary momentum. Delors was fortunate in his allies, receiving the support not just of the majority of the Member States, but also from
Thatchers own Commissioner, Lord Cockfield who, in his White Paper on
Completing the Internal Market, concluded that:15

11

The Dooge Committee reported to the European Council in March 1985. A full copy
of the text is reproduced in Annex II of R Bieber, J-P Jacqu and J Weiler, An Ever Closer
Union: A Critical Analysis of the Draft Treaty Establishing the European Union (European
Communities, Luxembourg, 1985) pp 33042.
12
Adopted by the European Parliament on 14 Feb 1984, OJ 1984, C77/33. Also reproduced as Annex I of Bieber et al, ibid pp 30629.
13
H Young, This Blessed Plot: Britain and Europe from Churchill to Blair (Macmillan,
London, 1998) pp 3267.
14
C Grant, Delors: Inside the House that Jacques Built (Nicholas Brealey, London, 1994)
p 70.
15
COM(85) 310.

The Social Dimension of the Internal Market 75

Just as the Customs Union had to precede Economic Integration, so Economic
Integration has to precede European Unity.

For Delors, however, an area without frontiers necessarily required

lespace sociale Europenne. As he explained in his first address to the
European Parliament:16
The creation of a vast economic area, based on market and business co-operation,
is inconceivableI would say unattainablewithout some harmonisation of social
legislation. Our ultimate aim must be the creation of a European social area . . .
What would become of us if we didnt have a minimum harmonisation of social
rules? What do we already see? Some member states, some companies who try to
steal an advantage over their competitors, at the cost of what we have to call a
social retreat.

At the European Parliament, Delors found an audience that was highly

receptive to this kind of rhetoric. He was to perform a similar feat at
the annual conference of the British Trades Union Congress (TUC) in
September 1988, a feat that led to an almost instantaneous volte face in the
European stance of both the TUC and the Labour Party.17 In practice
Delors moved more cautiously on social policy.
The agenda set by the Internal Market White Paper had a distinctly deregulatory bias, drawing heavily on the principle of mutual recognition derived
from the Courts judgment in Cassis de Dijon,18 a case concerned with the
scope of Articles 2830 EC [ex 3036 EEC] on the free movement of goods.
In order to secure the removal of physical, technical and fiscal barriers to
the free movement of goods and services, the principle of mutual recognition in Cassis required that if a product is lawfully manufactured and marketed in one Member State, there is no reason why it should not be sold
freely throughout the Community.19 In the social policy context, the Commission suggested that the principle of mutual recognition could be applied
to the area of health and safety where the Member States had essentially
equivalent legislative objectives. Moreover, public health was one of the
areas recognised as a mandatory requirement of Community policy in
Cassis,20 to be taken into account when applying the rules on free movement of goods and services. In addition, the protection of health and life
of humans was also recognised as an exception where justified by national
16

Bulletin of the European Communities Supplement 1/86, p 9.

See, for example, 1992: Maximising the Benefits: Minimising the Costs (Trades Union
Congress, London, 1988).
18
Case 120/78, Rewe Zentrale v Bundesmonopolverwaltung fr Branntwein [1979] ECR
649.
19
COM(85) 310, para 58. A similar approach was recommended by the ad hoc Committee for a Peoples Europe, the Adonnino Report, which drew up proposals to implement the
right of establishment by means of the mutual recognition of academic and professional qualifications. See COM(84) 446.
20
[1979] ECR 649, para 8.
17

76

The Single European ActCatalyst for Action I

governments under Article 30 EC [ex 36 EEC].21 The burden of proof

would, however, be on the government of the importing country, rather
than on the private exporter or its customers.22 It followed that there might
need to be legislative harmonisation to lay down essential health and safety
requirements, where this could not otherwise be achieved by mutual recognition, leading to a Community standard that would entitle a product to
free movement in the internal market. The Commission concluded that, in
the short term, the horizon of Community social policy was to be limited
to health and safety linked to free movement objectives and, pending reform
of the EEC Treaty, it would be inappropriate to use Article 94 EC [ex 100
EEC] more widely.23
While this strategy had the advantage of promoting a broad equivalence
of objectives between market integration and standardisation in the area of
health and safety, the Commission was conscious of the need to identify
any potentially negative implications of the single market on social conditions in the Member States, not least because of renewed fears of social
dumping, as clearly expressed by Delors in his inaugural address to the
European Parliament. As part of its strategic response, the Commission
issued a report of an inter-departmental Working Party entitled, The Social
Dimension of the Internal Market.24
The report identified two specific concerns about social dumping
expressed by countries with advanced social conditions.25 First, once
differentials were transparent and obstacles were removed, market share
would shift within the single market to countries with lower production
costs. Secondly, there would be downward pressure on social conditions
because of the demands of competition as jobs are sucked out of the
economy. In such circumstances, it was suggested that a race to the bottom
would be inevitable.26 The Working Party, while acknowledging that there
would be an acceleration or intensification of this process in some areas,
such as public works contracts and transport, concluded that these problems would be offset by other comparative advantages in terms of productivity, technical innovation, reliability and geographical location.27 The

21

COM(85) 310, para 65.

Grahl and Teague, n 2 above at 32.
23
COM(85) 310, para 65.
24
Social Europe, Special Edn (European Communities, Luxembourg, 1988).
25
Ibid pp 656.
26
The race to the bottom or meltdown theory arises in a deregulatory federal system
where states are allowed to unilaterally lower their social standards in order to undercut other
states. Businesses relocate in response and the other states respond by lowering their standards
in order to compete. In the US this is known as the Delaware effect, after the deregulatory
policies of the State of Delaware following the Delaware Corporation Act of 1899. See C
Barnard, Social dumping and the race to the bottom: some lessons for the European Union
from Delaware? (2000) 25 European Law Review 57 at 5763.
27
Social Europe (1988) n 24 above, pp 656.
22

The Social Dimension of the Internal Market 77

report also gave short shrift to related concerns that flexible labour markets
and decentralisation would lead to a growth in illicit work and a widening
of wage differentials.28
In determining the way forward, the report addressed the respective
merits of two contrasting and less than ideal approaches to Community
social policy.29 The first option, the normative approach, was designed to
achieve a single harmonizing framework to all matters at Community level
. . . mainly by means of binding instruments.30 While the Working Party
was able to refer to some notable successes for this approach in the areas
of employment protection and sex equality, they recognised that the normative or regulatory method left little room for innovation and denied the
social partners autonomy. It was also unrealistic given the outright opposition of some Member States and the limitations of the social provisions
in the Treaties. Moreover, the authors of the report concluded that the
employment crisis that had engulfed the Community, and changes both in
technology and behaviour, and also the demands of international competition, called for a more flexible and pragmatic policy with different
ambitions.31
The second option, the decentralised approach, acknowledged the need
for basic rules in the area of health and safety but its advocates wished to
see competition between social rules and a minimisation of social legislation.32 While this second option had the advantage of more flexibility,
promoting innovation and greater autonomy for the social partners, the
Working Party concluded that reliance upon decentralisation was too
localised and short-termist. It would not lead to social progress in areas
where a Community yardstick was required beyond the fields of health and
safety, for example, to prevent abuses of labour standards, promote equality and protect the weakest members of society.33
Having analysed the two approaches, the Working Party recommended
a middle way, or perhaps what would be regarded in the language of the
late 1990s/early 2000s as a third way. This would draw upon the strengths
of both the normative and decentralised approaches and thereby combine
economic and social policy effectively. The best means of delivering this,
the Commission suggested, was to promote a European industrial area
where the two sides of industry could meet in a Community forum to determine the mix between the two approaches.34 At this stage, however, the
Commission, while promoting the idea of a genuine European system of
28
29
30
31
32
33
34

Ibid pp
Ibid pp
Ibid.
Ibid.
Ibid pp
Ibid.
Ibid pp

668.
623.
634.
6870.

78 The Single European ActCatalyst for Action I

social relations did not envisage formalised European collective agreements.35 Although the Working Party highlighted the potential of what
might be described as a deepening of the process of social dialogue, they
were eager to indicate the potential limitations of this method of decisionmaking in practice when they warned that:36
This should not, however, be taken to mean that the Commission might in some
way abdicate its role. Should the social dialogue fail, the Commission would not
use it as an excuse to shirk its responsibilities.

Hence, while the Commissions middle way would focus on the development of the social dialogue as the favoured route for furthering the social
dimension, there would also be other means available to promote specific
measures at both Community and national levels. A range of methods would
be considered including harmonisation, where necessary, convergence of
social standards in areas such as social protection, vocational training and
public health, and, as a means of giving additional momentum to the process,
the establishment at Community level of a body of minimum social provisions, albeit in a far more limited form than the Social Charter that was to
be launched the following year. The emergence of the Social Charter will be
discussed in the next chapter, but to assess how the substantive goals of the
social dimension were to be brought into legal effect we shall first turn to the
Communitys chosen instrument, the Single European Act.

III THE SINGLE EUROPEAN ACTESTABLISHING

THE INTERNAL MARKET

(1) Introduction
At the Milan European Council in June 1985, the Communitys leaders
decided to override the opposition of Denmark, Greece and the UK, and
proceed with institutional reform as the most effective means of achieving
the Commissions target date of 1992 for completing the internal market.37
One course open to the European Council would have been to adopt, in
whole or in part, the Draft Treaty drawn up by the European Parliament
in 1984.38 Indeed the French and German governments put forward a joint
proposal for a European Union Treaty as a basis for debate. In fact this
fell far short of the Parliaments proposals and, in any event, the reference
35

Social Europe (1988) n 24 above, pp 703.

Ibid p 70.
37
See E Noel, Reflections on the Community in the Aftermath of the Meeting of the European Council in Milan (1985) 20 Government and Opposition 444; and S George, An
Awkward Partner: Britain in the European Community, 2nd edn (OUP, Oxford, 1994) pp
1803.
38
See Bieber et al, n 11 above.
36

The Single European Act 79

to the establishment of a European Union was anathema to the British
and highly unattractive for the Danes. As a consequence, the Parliaments
forward looking prognosis for a Treaty founded upon principles of fundamental rights and Union citizenship, with fully fledged social provisions,
subsidiarity and legislative co-decision, was never tabled.39 The Single
European Act (SEA) that emerged from the negotiating process was a
pale shadow of the Parliaments document. For the most part it adapted the
suggestion of the Councils own ad hoc group, the Dooge Committee,
for limited reforms designed to smooth the way for the single market and
achieve closer political co-operation over foreign policy.40 For Margaret
Thatcher, the SEA was a modest decision, for Jacques Delors, it was a
monstrosity.41 Nonetheless, once in force from 1 July 1987, the SEA represented the first substantive reform of the EEC Treaty and it is doubtful
whether either the protagonists or antagonists of the final text fully appreciated the long-term impact of the institutional reforms and policy refinements that they had set in train.
The SEA combined short-term objectives with longer lasting changes to
the competences of what was still formally the EEC Treaty. The core internal market provisions were contained in Articles 8a, 8b and 8c EEC42 [now
14 and 15 EC], setting out the general principles for establishing the internal market to be implemented by Article 100a EEC [now 95 EC] and Article
100b EEC [now repealed], containing the legal bases for internal market
measures.43 The social policy context of these internal market provisions
will be discussed in the next section before considering the specific amendments to the EEC Social Chapter contained in Article 118a EEC [now part
of Articles 137 and 138 EC] on health and safety in the context of the
working environment, and Article 118b EEC [now replaced by Articles 138
and 139 EC] on the establishment of social dialogue. As the Amsterdam
Treaty has substantially altered each of these provisions, we will, to avoid
confusion, refer to them in their historical context as Articles 118a and
118b EEC.

(2) The Internal Market and Social Policy

Article 14(1) EC [ex 7a(1) EC, ex 8a(1) EEC] obliges the Community to
adopt measures with the aim of progressively establishing the internal
39
The provisions on social and health policy can be found in Art 56 of the Draft Treaty.
For the text, see Bieber et al, ibid at 321.
40
See Young, n 13 above, p 331.
41
Cited by Grant, n 14 above, p 74.
42
Renumbered as Arts 7a, 7b and 7c EC by the Treaty on European Union (TEU).
43
For a full assessment of the impact of these provisions and related parts of the SEA, see
D Wyatt and A Dashwood, European Community Law, 2nd edn (Sweet & Maxwell, London,
1993) pp 35374.

80 The Single European ActCatalyst for Action I

market by 31 December 1992. Responsibility is shared by the Community
institutions, which must adopt the necessary measures, and the Member
States, who are bound by the duty of co-operation in Article 10 EC [ex 5
EEC] to ensure their fulfilment. A wide range of Treaty provisions are identified for this purpose, including market approximation under Articles 94
and 95 EC [ex 100 and 100a EEC], but there is no direct reference to the
Chapter on social policy, Articles 136145 EC [ex 117122 EEC]. Article
14(1) EC does not, however, preclude activity in those areas not expressly
mentioned because any measures are without prejudice to the other provisions of this Treaty. Moreover, the SEA imposed an additional duty on
the Council, set out in Article 8b EEC [now repealed], to ensure balanced
progress in all the sectors concerned when exercising a qualified majority
vote on a proposal from the Commission. This implies that, while the internal market is primarily concerned with creating the conditions for transborder free movement, account should be taken of the wider sectoral impact
of removing barriers and regulating the market in areas such as the environment and social policy. Article 14(2) EC [ex 7a(2) EC, ex 8a(2) EEC]
defines the internal market as:
. . . 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.

Thus, while the notion of a common market encompasses a broad range of

Community policies not confined by specific economic objectives, the internal market is a narrower conception, designed to rapidly achieve economic
liberalisation through both negative and positive means by a combination of
deregulation, mutual recognition and, where necessary, standardisation at
Community level. While this narrow focus indicates an exercise of political
restraint by the Member States reflecting a lowering of the Communitys
aspirations,44 at least in the short-term, it also presented an opportunity,
swiftly seized upon by the Delors Commission, to make decisions quickly,
taking advantage of very specific provisions requiring qualified majority
voting (QMV), to generate an institutional dynamic that would prepare the
way for the next stage of political integration.45 Moreover, even though it can
be argued that Article 14(2) EC is not directly effective, because it requires
implementation through Community measures, as indicated by an accompanying Declaration by the Member States,46 its importance lies with the
44
For a critique, see P Pescatore, Some Critical Remarks on the Single European Act (1987)
24 Common Market Law Review 9.
45
For support for this proposition, see J Weiler, The Transformation of Europe (1991)
100 Yale Law Journal 2403 at 2454; and W Sandholtz and J Zysman, 1992: Recasting the
European Bargain (1989) 42 World Politics 95; cf A Moravcsik, Negotiating the Single
European Act: National Interests and Conventional Statecraft in the European Community
(1991) 45 International Organization 19.
46
The Member States declared that the 31 Dec 1992 deadline does not create an automatic legal effect. This is no more than an interpretative non-binding statement but its

The Single European Act 81

obligation on both the Member States and the Community to act within the
timetable set in order to achieve a clearly defined objective. Article 15 EC [ex
8c EEC] provides some limited scope for the Commission to specify derogations when drawing up internal market proposals to take account of the need
for economic adjustments to help less well developed economies having to
cope with the opening up of markets. Any derogation must, however, be temporary in nature and cause the least possible disturbance to the functioning
of the common market.47
In practice, Article 95(1) EC [ex 100a(1) EEC] has provided the main
lever for the implementation of the internal market programme by way of
QMV for the achievement of the objectives set out in Article 14. The introduction of QMV on internal market matters had an immediate dynamic
effect on the approach of the Member States to Community decisionmaking. The Member States, having grown accustomed to placing reliance
on the threat of the national veto, have progressively lost this shibboleth as
the range of areas covered by QMV has been extended by successive Treaty
amendments. By contrast, under the QMV formula,48 the Member States
must negotiate with an awareness of the possibility of being outvoted and,
faced with this danger, they must seek to secure the best possible terms
within the framework of the Commissions proposal unless they can construct a blocking minority.49 The results were immediate and dramatic.
Within a short period, the inertia of the early 1980s rapidly gave way to
an active legislative dynamic with 265 of the measures proposed in the
Commissions White Paper being adopted by the end of 1993.50
While the sheer volume of internal market measures is impressive, their
ambit has been severely circumscribed by a derogation contained in Article
unambiguous nature carries considerable force. The retention of the deadline in the Amsterdam Treaty of 1997 indicates a continuing obligation. See Wyatt and Dashwood, n 43 above,
pp 35863; cf A Toth, The Legal Status of the Declarations Annexed to the Single European
Act (1986) 23 Common Market Law Review 803. For a summary of the debate on this point,
see D Chalmers and E Szyszczak, European Union Law, Volume II: Towards a European
Polity? (Dartmouth, Aldershot, 1998) pp 56.
47
For further discussion on this point, see C-D Ehlermann, The Internal Market Following the Single European Act (1987) 24 Common Market Law Review 361 at 374.
48
At the time of the SEA the QMV formula provided a threshold of 54 votes out of 76 to
secure a majority in the Council of Ministers. Following enlargement from 12 to 15 Member
States, the threshold was adjusted to 62 votes out of 87, Art 205(2) EC [ex 148(2) EEC]. The
votes of each Member State are weighted taking into account population with a bias towards
smaller countries. Germany, France, Italy and the UK each have 10 votes, Spain has 8, Belgium,
Greece, The Netherlands and Portugal have 5, Austria and Sweden have 4, Denmark, Ireland
and Finland have 3, and Luxembourg has 2. Both the QMV formula and the weighting of
votes will again be substantially altered if or when the draft Treaty of Nice of 26 Feb 2001
enters into force and the next planned enlargement takes place after 2004. See the table
annexed to the Final Act of the Conference, OJ 2001, C80/1 at 823.
49
See R Dehousse, Integration v Regulation? Social Regulation in the European Community (EUI, Florence, 1992) p 17.
50
Community Internal Market1993, COM(94) 55. See Chalmers & Szyszczak, n 46
above, p 2.

82 The Single European ActCatalyst for Action I

95(2) EC [ex 100a(2) EEC] which states that the first paragraph of Article
95 EC shall not apply to fiscal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed
persons. This was clearly intended by its proponents, the UK and Germany,
to severely limit, at least in the short-term, the notion of a social dimension of the internal market. When considered at face value, Article 95(2)
ECpre-Maastrichtappeared to rule out Europeanisation51 of the social
policy field except where unanimity could be reached under the original
Treaty provisions in Article 94 EC [ex 100 EEC] or Article 308 EC [ex 235
EEC], or where, in the specific area of health and safety and the working
environment, added by the SEA, a proposal could be founded upon Article
118a EEC which provided for QMVall of which provided opportunities
for the players in the Treaty base game.52
Two main lines of argument have been put forward concerning the scope
of Article 95(2) EC. First, several commentators have argued that it might
be possible to limit the application of Article 95(2) EC.53 It has been suggested that, notwithstanding the derogation, Article 95(1) EC might still be
capable of covering a broader range of proposals that could be presented
as not being exclusively or predominantly concerned with the rights and
interests of employed persons. The Commission attempted, unsuccessfully,
to test this approach when seeking to introduce legislation concerning atypical or non-standard workers: specifically, part-time, fixed-term and temporary workers.54 Rather than risk all on one piece of legislation that would
almost certainly have foundered on the rocks of the unanimity rule, the
Commission simultaneously launched three proposals using different legal
bases. The proposals were as follows:
1) Proposal for a Council Directive on certain employment relationships with
regard to working conditions (Article 94 EC [ex 100 EEC]);55
2) Proposal for a Council Directive on certain employment relationships with
regard to distortions of competition (Article 95 EC [ex 100a EEC]);56
3) Proposal for a Council Directive supplementing the measures to encourage
improvements in the safety and health at work of workers with a fixed-duration

51
In the sense that European integration would otherwise directly infiltrate national
social lawssee generally, F Snyder (ed) The Europeanisation of Law: The Legal Effects of
European Integration (Hart, Oxford, 2000).
52
See Fitzpatrick, n 6 above at 11619.
53
See, for example, E Vogel-Polsky, What Future is There for a Social Europe? (1990) 19
Industrial Law Journal 65 at 702; and B Bercusson, Fundamental Social and Economic Rights
(EUI, Florence, 1989) pp 1214.
54
For further discussion, see R Nielsen, European Labour Law (DJF Publishing, Copenhagen, 2000) pp 14849; E Whiteford, W(h)ither Social Policy? in J Shaw & G More (eds)
New Legal Dynamics of European Union (Clarendon Press, Oxford, 1995) 11128 at 11617.
55
COM(90) 228, OJ 1990, C224/4.
56
OJ 1990, C224/6. Amended proposal COM(90) 533, OJ 1990, C305/6.

The Single European Act 83

employment relationship or a temporary employment relationship (Article 118a
EEC).57

The first proposalthe most far-reachingsought to apply the principle of

non-discrimination to atypical workers including part-time, fixed-term,
temporary and seasonal workers. The Commissions decision to rely on
Article 94 EC reflected the generally cautious approach of the Delors period.
The proposal may have been a harbinger of changes to come but, for the
time being, it was sacrificed on the altar of the unanimity rule and the UKs
inevitable veto.
The second proposed measure was subtler and potentially even more significant. The Commission sought to harmonise indirect costs for employing atypical workers as a means to combat distortions of competition.
Member States would be obliged to include them in social protection
schemes and employers would have had to provide, inter alia, protection
against unfair dismissal, maternity protection, occupational pensions and
redundancy payments. Moreover, part-time workers would have been entitled pro-rata to equal treatment with full-time employees in respect of such
matters as holidays and seniority allowances. This measure was more
widely opposed among the Member States who were concerned about the
economic costs. It was also a victim of tactical disagreements between the
Commission and the European Parliament. The latter supported the notion
of one combined proposal under Article 95 EC. The result was the shelving of both proposals.
The third proposal was, however, successful. This was the most limited
measure. It was more narrowly focused on health and safety matters, rather
than broader employment protection, and, as such, it fell clearly within the
scope of Article 118a EEC. As this was also subject to QMV, and there was
wider support among the Member States for health and safety proposals,
the measure was formally adopted as Directive 91/383.58 This was no more
than a pyrrhic victory for the Commission. One measure may have been
adopted but this was, in itself, rather superficial given the all-embracing
nature of the 1989 framework Directive on the Safety and Health of
Workers at Work,59 which covers all workers. Moreover, the precise scope
of Article 95(2) EC remained untested.
A second line of argument concerns the relationship between paragraphs
2 and 3 of Article 95 EC. It has been suggested that the derogation in Article
95(2) EC must be read together with Article 95(3) EC [ex 100a(3) EEC]
which provides that, where an internal market proposal concerns health,
safety, or the protection of the environment or consumers, the Commission
must take as a base a high level of protection. Article 95(3) EC was
57
58
59

OJ 1990, C224/4.
OJ 1991, L206/19. Effective from 31 Dec 1992.
Dir 89/391/EEC, OJ 1989, L183/1.

84

The Single European ActCatalyst for Action I

intended to placate those countries that have established stringent standards

and who were concerned that harmonisation would be at the level of the
lowest common denominator.60
Both of these arguments are unconvincing. Article 95(3) EC refers only
to proposals envisaged in paragraph 1 and therefore paragraphs 2 and 3
must be understood as being mutually exclusive. More importantly, Article
95 EC was inserted into the Treaty only as a means of implementing specific internal market proposals by QMV. While it has undoubtedly acted as
a restraint on social policy proposals, so long as at least one Member State
has objected to them, it does not prevent the advancement of such measures where a more specific legal base is available, for example Article 118a
EEC or now, post-Amsterdam, any one of the areas covered by Article 137
EC, which is much wider than its precursor. In order to explain this point
it is first necessary to consider the place of Article 95 EC in the revised
scheme of the Treaty post-SEA.
Paradoxically, despite its widespread use, Article 95 EC is, as a matter of
Treaty interpretation, a residual legal base in two senses. Firstly, Article 95
EC operates by way of derogation from Article 94, hitherto the principal
legal base for approximation measures in a wide range of policy fields,
including social policy, where Community legislation has been deemed
necessary for the establishment and functioning of the common market.
Article 95 EC is only concerned with approximation provisions which have
as their object the establishment and functioning of the internal market.61
Article 94 EC is broader, not only because of the functional distinction
between the common market and the internal market, but also, because
Articles 94 and 95 EC are mutually exclusive, it is operative in those areas
excluded from the main thrust of the internal market programme by virtue
of Article 95(2) EC. Hence, while the practical utility of Article 94 EC is
necessarily limited by the requirement of unanimity, it has continued to
provide the most appropriate legal base for a limited number of whole
Community labour law proposals, outside the ambit of what was Article
118a EEC, in the period between the SEA and the ratification of the Treaty
of Amsterdam.
Secondly, Article 95 EC must be interpreted, even within the context of
the internal market, as residual in the sense that it only applies save where
otherwise provided in this Treaty.62 Article 95 EC is therefore intended as
a legal base only for those measures that have the establishment and functioning of the internal market as their primary objective. In all other cases
a more specific provision will take precedencegeneralia specialibus non
60
See P Craig & G de Brca, EC Law: Text, Cases and Materials, 2nd edn (OUP, Oxford,
1998) p 1121.
61
My emphasis.
62
For further elucidation on this point, see Wyatt & Dashwood, n 43 above, p 364.

The Single European Act 85

derogant.63 Where, however, the internal market objective of any measure
is paramount, Article 95(3) EC must be taken into account and, as a consequence, specific health and safety aspects of any proposal must provide
for a high level of protection, a point firmly reinforced in the public health
context by the Court in its landmark Tobacco Advertising64 judgment of
5 October 2000.
In the Tobacco Advertising case the Court powerfully underlined the
narrow conception of the internal market bequeathed by the SEA and the
specific nature of Article 95(1) EC.65 When considering the legality of a
Directive on the approximation of national laws on the advertising and
sponsorship of tobacco products,66 the Court rejected the notion that Article
95(1) EC vests in the Community legislature a general power to regulate
the internal market.67 While the Courts judgment is consistent with the
current trend of judicial recognition of limits on the scope of Community
competence,68 it is based on the conferred or limited powers principle that
although now expressly incorporated into the EC Treaty by the TEU,69
derives from the earlier constitutional jurisprudence of the Court.70 It
follows that a measure based on Article 95(1) EC must genuinely have as
its object the improvement of the conditions for the establishment and functioning of the internal market.71
Significantly, the Directive in question was annulled not because its
centre of gravity lay in the area of public health,72 but because of the
general nature of the prohibition on the marketing of tobacco products.73
Hence, a more specific measure aimed at preventing the emergence of future
63
See A Dashwood, The Working Time Judgment in a Wider Perspective in C Barnard, A
Dashwood & B Hepple, The ECJs Working Time Judgment: The Social Market Vindicated
(CELS Occasional Paper No 2, Cambridge, 1997) 2331 at 26.
64
Case C376/98, Germany v European Parliament and Council (Tobacco Advertising)
[2000] ECR I8419, para 88.
65
For discussion, see the annotation by J Usher (2001) 38 Common Market Law Review
1519.
66
Dir 98/43/EC, OJ 1998, L213/9.
67
Para 83.
68
See Usher, n 65 above at 1519.
69
The first para of Art 5 [ex 3b] EC reads: The Community shall act within the limits of
the powers conferred upon it by this Treaty and of the objectives assigned to it therein.
70
See especially, Case 26/62, Van Gend en Loos v Nederlande Administratie der Belastingen [1963] ECR 1 at 12, where the Court held that the Member States had, by signing the
EEC Treaty, limited their sovereign rights, albeit within limited fields.
71
Tobacco Advertising, n 64 above, para 84.
72
Art 152 [ex 129] EC on public health does not allow for harmonisation measures. Therefore the two legal bases were not competing and, as AG Fennelly graphically observed at
para 58 of his opinion, the question of whether the Community has acted within its powers
cannot be determined by a measures putative centre of gravity as between these two incommensurable objectives [health protection and the internal market]. For further discussion of
the public health issues raised by the case, see T Hervey, Up in Smoke? Community (anti)
tobacco law and policy (2001) 26 European Law Review 101.
73
Para 117.

86 The Single European ActCatalyst for Action I

obstacles to trade resulting from multifarious development of national laws
may be validly adopted under Article 95(1) EC so long as the emergence
of such obstacles is likely and the measure in question is designed to prevent
them.74 Moreover, the Court will verify whether the distortion of competition that the measure purports to eliminate is appreciable.75 Therefore, a
general measure such as the Commissions second proposal on atypical
work,76 which was based on the distortion of competition argument, would
almost certainly have fallen foul of this test on the basis that, even if it had
promoted competition, such advantages might be regarded as remote and
indirect and not comparable to appreciable distortions caused by differences in production costs.77 Further, as the Court warned in its judgment,78
other articles in the Treaty may not be used as a legal basis in order to circumvent the exclusion of harmonisation elsewhere79 and, by implication,
the absence of a power to harmonise in certain areas.
Syrpis80 has suggested that one consequence of the Tobacco Advertising
case will be to restrict the capacity of the Communitys legislature to utilise
Article 94 EC [ex 100 EEC] for social policy measures to prevent or rectify
market distortions in areas where there is no specific legal base in the Social
Chapter. Notwithstanding the introduction of Article 95 EC by the SEA,
the Member States chose to retain Article 94 EC as a general legal base
for measures designed to achieve this broad objective where there is an
absence of any express reference in the Treaty.81 For example, even after
the revision of EC Treaty at Amsterdam, there is no Treaty competence for
a directive concerning matters such as pay or the right to strike. Rather,
there is an express prohibition against using Article 137 EC for such
measures.82 However, unlike Article 95 EC, the legal base in Article 94 EC
can be utilised for measures that directly affect the establishment or functioning of the common market.83 Such measures do not have to be
narrowly conceived, or have as their object the precise internal market
goals in Articles 3(1)(c) EC [ex 3(c) EEC] and Article 14 EC [ex 7a EC,
ex 8a EEC],84 but can be more broadly justified on the grounds of the
74

Para 86. See also, Case C350/92, Spain v Council [1995] ECR I1985, para 35.
Para 106. See also, Case C300/89, Commission v Council (Titanium Dioxide) [1991]
ECR I2867, para 23.
76
OJ 1990, C224/6.
77
Para 109.
78
Para 79.
79
Specifically in relation to public health in Art 152(4) [ex 129(4)] EC.
80
See P Syrpis, Smoke Without Fire: The Social Policy Agenda and the Internal Market
(2001) 30 Industrial Law Journal 271 at 277.
81
Case 43/75, Defrenne v Sabena II [1976] ECR 455, para 63. Cited by AG Lger in Case
C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR I5755, at para
70 of his opinion.
82
Art 137(6) EC.
83
My emphasis.
84
See the express reference to these provisions in para 82 of the judgment.
75

The Single European Act 87

Communitys tasks in Article 2 EC which, even in its original form, required
a balance within the common market between the pursuit of the Communitys broad economic and social objectives. Therefore, the adoption of
revised directives on collective redundancies85 and acquired rights86 on the
basis of Article 94 EC, prior to the ratification of the Amsterdam Treaty,87
was fully justified.
While the Tobacco Advertising case limits the scope for Community
legislation in the specific area of the internal market, it does not exclude
targeted measures under Article 95 EC that, for example, have the free
movement of goods as their object, but have ancillary social policy benefits. Moreover, directives intended to guarantee the free movement of goods
in the internal market must, by virtue of Article 95(3) EC, ensure that a
high standard of health protection is incorporated into product design and
manufacture. Conversely, the social policy objective only becomes paramount when legislation is primarily concerned with the conditions of use
of those same products.88 Hence, as AG Lger advised in the Working Time
case,89 Article 95 EC was the appropriate legal base for Directive 89/686,
on the approximation of laws concerning personal protective equipment,90
which sought, as its fundamental objective, to remove barriers to trade in
the production and manufacture of such equipment while, simultaneously,
ensuring that the workers using this equipment were protected by a high
level of safety standards in its specifications. Similarly, Directive 89/392 on
the approximation of laws relating to machinery,91 was intended to ensure
that safety was incorporated from the design stage onwards by placing an
obligation on the manufacturer of machinery to eliminate or reduce risks
as far as possible, to take any necessary protective measures against risks
that cannot be eliminated and to provide information and training for users
of the machinery.92 Moreover, other general measures, such as Directive
88/379 on the classification, packaging and labelling of dangerous preparations,93 are intended to have a protective effect both within and beyond
85
Dir 92/56/EEC on the approximation of the laws of the Member States relating to collective redundancies, OJ 1992, L245/3, consolidated by Dir 98/59/EC, OJ 1998, L225/16.
86
Dir 98/50/EC on the approximation of the laws of the Member States relating to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of
undertakings or businesses, OJ 1998, L201/88, consolidated by Dir 2001/23/EC, OJ L82/16.
87
Post-Amsterdam such measures can be justified based on Art 137(1) EC which allows for
QMV.
88
See Social Europe 2/90, Health and Safety at Work in the European Community (European Commission, Brussels, 1990) p 47.
89
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR I5755,
para 73 of the opinion. The AG explicitly approved of the use of Art 95 EC for the directives
referred to above.
90
OJ 1989, L399/18.
91
OJ 1989, L183/9.
92
See Social Europe 2/90, n 88 above, p 48.
93
OJ 1988, L187/14, as amended by Dir 89/178/EEC, OJ 1989, L64/18, and Dir
91/155/EEC, OJ 1991, L76/35.

88 The Single European ActCatalyst for Action I

the working environment. Therefore, the specific use of Article 95 EC for
internal market proposals requires a complementary approach to free
movement of goods and health and safety objectives.
Where, however, the measure in question is founded primarily upon a
policy objective provided for elsewhere in the Treaty, it follows that Article
95 EC should not be used because it is a residual provision and, in the
context of measures principally concerned with social policy, the derogations contained in Article 95(2) EC will not come into play. In those circumstances the centre of gravity argument between the relevant Treaty
provisions will be of crucial importance and, as the Communitys legislative powers in the field of social policy have gradually widened, it has
become possible to justify Community legislation based on the autonomous
legal bases in the Social Chapter. This was the interpretation applied by the
Court in the Working Time94 case, when considering the UKs challenge to
the validity of the Working Time Directive95 adopted under Article 118a
EEC as a measure to protect the health and safety of workers especially in
the working environment.
In the Working Time case the UK argued, inter alia, that Article 118a
EEC should be strictly interpreted as an exception to the general rule in
Article 95(2) EC which excludes a measure that, in their view, was concerned with working conditions generally and not specifically health and
safety in the context of the immediate working environment. The Court
reached precisely the opposite conclusion, ruling that the existence of other
provisions in the Treaty does not have the effect of restricting the scope of
Article 118a, a point addressed in Article 95(1) EC which states that its
provisions apply save where otherwise provided in this Treaty.96 Where
the choice of legal base is the subject of judicial review proceedings under
Article 230 EC [ex 173 EEC], it is well established that the Court will decide
the case by making an objective assessment of the aim and content of the
measure in question.97 It follows that the spheres of application of Article
95 EC and now Article 137 EC [ex 118a EEC] are delimited not on the
basis of a choice between general and particular measures but upon
the principal aim of the measure envisaged.98 Where the principal aim of
94
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR I5755.
For discussion, see J Kenner, A Distinctive Legal Base for Social Policy?The Court of Justice
Answers a Delicate Question (1997) 22 European Law Review 579; and Barnard et al,
n 63 above.
95
Dir 93/104/EC concerning certain aspects of the organisation of working time, OJ 1993,
L307/18.
96
Paras 1213.
97
Case 45/86, Commission v Council [1987] ECR 1493, para 11; and Case C300/89,
Commission v Council [1991] ECR 2867, para 10. For a critique, see S Crosby, The Single
Market and the Rule of Law (1991) 16 European Law Review 451.
98
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR I5755,
para 21 (my emphasis).

The Single European Act 89

the measure is the protection of the health and safety of workers in general,
Article 137 EC [ex 118a EEC] must be used99 and this objective should not
be subordinated to purely economic considerations.100
We shall consider the scope of Article 118a EEC, and the Courts interpretation thereof, more fully in the next section, but for the purposes of
interpreting Article 95 EC, it is now clear that even though a specific health
and safety measure may have an ancillary effect on the establishment and
functioning of the internal market, this will not suffice to bring it within
the scope of that provision.101 Conversely, as the Tobacco Advertising case
subsequently demonstrated, the targeted nature of the internal market provisions effectively foreclosed any attempts to utilise QMV under Article 95
EC to circumvent the absence of a specific Treaty base for employment and
social policy measures outside the area of health and safety of workers
during the period of the SEA.
The operation of Article 95 EC is subject to a further specific derogation
by virtue of Article 95(4) EC [ex 100a(4) EEC] where, after the adoption
of a harmonisation measure, a Member State deems it necessary to apply
national provisions on grounds of major needs referred to in [Article 30
ECex 36 EEC], or relating to protection of the environment or the
working environment.102 When negotiating the SEA the Member States
were not willing to give an unqualified right of pre-emption to the Community via the operation of QMV.103 Article 95(4) EC retains a limited
amount of manoeuvrability at national level. Member States seeking to have
recourse to Article 95(4) EC must first notify the Commission who must
be satisfied that there will be not be arbitrary discrimination or a disguised
restriction on intra-Community trade before they can activate the provision and, in addition, an action may be brought by a Member State or the
Commission against any Member State considered to be making improper
use of these powers. Therefore, in the field of social policy, a Member State
may seek to disapply or delimit the effects of a measure on the grounds of
the protection of health, as one of the areas specified in Article 30 EC [ex
36 EEC], or the working environment. In the Working Time case both of
99

Ibid paras 20 and 22.

Ibid para 28.
Case C426/93, Germany v Council [1995] ECR I3723, para 33. See Dashwood, n 63
above, p 27.
102
See also the interpretative and procedural provisions added by the Treaty of Amsterdam:
Art 95(5)(9) EC. In addition, Art 95(10) [ex 100a(5) EEC] provides for the inclusion of a
safeguard clause in harmonisation measures, in appropriate cases, authorising Member States
to take provisional measures for one or more of the non-economic reasons referred to in [Art
30 ECex 36 EEC], subject to a Community control procedure. The full list of grounds in
Art 30 EC is public morality, public policy or public security, the protection of health and
life of humans, animals or plants; the protection of national treasures possessing artistic, historical or archaeological value; or the protection of industrial and commercial property.
103
On the theory of pre-emption, see S Weatherill, Law and Integration in the European
Union (Clarendon Press, Oxford, 1995) pp 13583.
100
101

90 The Single European ActCatalyst for Action I

these expressions were given a broad meaning,104 albeit within the specific context of the former Article 118a EEC, and, at the time of the SEA,
the inclusion of this clause aroused considerable fear that it would be
frequently relied upon by Member States, particularly those outvoted
in the Council, and this would undermine the whole internal market
process.105
In practice, Article 95(4) EC has rarely been used with notification being
given to the Commission in just two cases in the first five years of the operation of the SEA, the critical period for the 1992 process.106 Wyatt and
Dashwood suggest that one of the main reasons for this inactivity has been
the interplay between Article 95(3) and (4) EC that has led to higher
common standards being proposed in harmonisation measures in order to
deter Member States from having recourse to national provisions on the
specified grounds.107 This is a good example of how, in practice, the SEA
has confounded the dire warnings of some of its sternest critics by both
accelerating the process and deepening the substance of the internal market.
This point was well made by AG Lger in the Working Time case where he
noted that:108
[Article 95] constitutes the appropriate legal base whenever a harmonization
measure has as its fundamental object the establishment of the internal market even
though, in order to achieve that goal, the measure must, in accordance with [Article
95(3)], ensure a high level of protection as regards the safety and health of workers,
and thereby reduce the risk of a Member State resorting to the exception in [Article
95(4)].

The completion of the internal market was not to be achieved by Community legislation alone, as indicated in the White Paper. Article 95 EC [ex
100a EEC] was supplemented by ex-Article 100b EEC,109 an innovative
mutual recognition clause, which obliged the Commission to draw up an
inventory of national laws and regulations which had not been harmonised
under Article 95 EC and for the Council to decide whether to recognise
104
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, para 15.
105
See Pescatore, n 44 above, and J Flynn, How Well Will Article 100a(4) Work? A Comparison with Article 93 (1987) 24 Common Market Law Review 689.
106
Art 95(4) EC has been tested before the Court on just two occasions. In Case C41/93,
France v Commission [1994] ECR I1829, the Court annulled a Commission decision to allow
a German rule imposing stricter controls on a chemical, PCP, but only on procedural grounds.
In Case C127/97, Burstein v Freistaat Bayern [1998] ECR I6005, a related challenge was
also unsuccessful on procedural grounds. See E Szyszczak, The Working Environment v.
Internal Market (1999) 24 European Law Review 196 at 197.
107
Wyatt and Dashwood, n 43 above, p 367.
108
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, para 73 of the opinion.
109
Now repealed. The obligation under this provision was intended to be operative until
31 Dec 1992.

Health, Safety and the Working Environment 91

them as equivalent.110 Thus, mutual recognition, while central to the big
idea behind the White Paper, appeared to be confined to a sweeping up
clause. This underestimates its importance. As subsidiarity has come to the
fore, particularly in areas where Community competence is less well developed, so mutual recognition has increasingly been regarded as the preferred
option with harmonisation only being introduced as a last resort where the
Community objective cannot be more effectively achieved at national level.
This is an approach that has, as we shall see, had important consequences
for social policy, notwithstanding the gradual extension of the legal base in
the social policy field in the SEA and subsequent Treaties. Taken together,
Articles 95 EC [ex 100a EEC] and 100b EEC, reflect the complementary
characteristics of mutual recognition, as an instrument of integration, and
harmonisation, as a regulatory technique, where there is a convergence of
objectives.111 While Article 95(2) EC has provided a high hurdle for the
Commission to clear when seeking an appropriate legal base for proposals
aimed at furthering the social dimension, it has not been insurmountable,
not least because of the expansive interpretation given to Article 118a EEC
and the policy drive initiated by the launch of the Communitys Social
Charter.

IV HEALTH, SAFETY AND THE WORKING ENVIRONMENT

(1) The Excessively Subtle Wording of Article 118a EEC

In the preamble to the SEA the Member States professed themselves determined to improve the economic and social situation by extending common
policies and pursuing new objectives.112 To an extent, this commitment
reflected a new wave of optimism flowing from the Internal Market White
Paper. Advocates of the internal market programme were confidently predicting that market liberalisation would lead to a combination of cost
reductions, rationalisation of industrial structures and innovative new
processes and products. They predicted a doubling of GDP, a six per cent
drop in consumer prices and a fall in unemployment rates throughout the
Community as a consequence of the creation of 1.8 million new jobs.113 At
the same time, experts reviewing the wider social impact of the internal
market were more cautiously pointing to changes in the labour force based

110
Despite the obligation contained therein the Commission did not table any proposals
under Art 100b EEC before the deadline. See Wyatt and Dashwood, n 43 above, p 368.
111
See Dehousse, n 49 above, p 13.
112
Sixth recital of the preamble of the SEA.
113
See P Cecchini, The European Challenge 1992: The Benefits of a Single Market
(Wildwood House, Aldershot, 1988); M Emerson, M Aujean et al, The EC Commissions

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on the notion of a J-curve.114 The theory was that the immediate effect of
market integration would be a short to medium-term rise in unemployment,
as a consequence of structural adjustments and economies of scale, to be
followed by a longer lasting fall, with better resource allocation leading to
steady growth. A decade later, Tsoulakis115 was in a position to conclude,
on the basis of several studies of the economics of the internal market, that
there had been only small net gains with many of the bigger expectations
being dependent on the dynamic effects of the whole process. As Chalmers
and Szyszczak have observed, much of the success of the 1992 project
depended on hype and more recent assessments have shown an overestimation of both its positive and negative effects.116 Therefore, for those
seeking to transcend the hype and identify tangible benefits in the social
situation arising from the 1992 project, much depended on the Commissions ability to utilise the new objectives added by the only amendment
to the EEC Social Chapter in the SEA, Article 118a EEC on the health and
safety of workers in the context of the working environment. This has, as
we shall see later, been revised and incorporated into the far wider provisions now contained in Article 137 EC.
From the time of its enactment, Article 118a EEC maintained a certain
enigmatic quality attributed by AG Lger to its excessively subtle wording
. . . bearing witness to the difficulties involved in its adoption.117 In the
following sections an attempt will be made to understand these subtleties
by close scrutiny both of the provisions themselves and their practical
application.
Article 118a(1) EEC [now amended by Article 137(1) EC] set out the
general objective as follows:
Member States shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and
shall set as their objective the harmonisation of conditions in this area, while maintaining the improvements made.

Harmonisation was established as the objective and not the means. Article
118a(2) EEC [now 137(2) EC] provided for the adoption of directives to
help achieve the objective. The middle way between normative regulation and decentralisation, discussed later by the Social Dimension Working

Assessment of the Economic Effects of Completing the Internal Market (OUP, Oxford, 1988).
For discussion, see Chalmers and Szyszczak, n 46 above, pp 613.
114

See Social Europe, Supp 7/89, The Social Aspects of the Internal Market, vol. 2 (European Commission, Brussels, 1989) pp 1516.
115
L Tsoulakis, The New European Economy Revisited, 3rd edn (OUP, Oxford, 1997) pp
713.
116
See Chalmers and Szyszczak, n 46 above, p 11.
117
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, para 35 of the opinion.

Health, Safety and the Working Environment 93

Party, was an integral part of the new Treaty scheme and formed the foundation for the approach to be developed subsequently in the Agreement on
Social Policy. Subsidiarity, averred to overtly in the Environment Chapter,118
was implicit here, but was nonetheless central to an approach that retained
the notion of shared competence featured in Articles 117 and 118 EEC.
Article 118a(2) EEC added the missing ingredient of a specific legal base
providing for directives to be adopted under QMV clearly focused on health
and safety within the sphere of the working environment.
The first paragraph of Article 118a(2) EEC, while specifying the use of
directives, and therefore recognising the necessity for Community legislative standardisation, required that any directives must contain minimum
requirements for gradual implementation, having regard to the conditions
and technical rules obtaining in each of the Member States. This provision
reflected the concerns of those Member States, including the UK, which had
developed their own regime for health and safety and expected to make a
minimal number of technical changes by way of directives.119 For other
Member States, notably Denmark, the principal concern was the reverse.
They feared that minimum standards might lead to a levelling down of
health and safety conditions and they were determined to maintain their
freedom of manoeuvre. Hence, Article 118a(3) EEC [now 137(5) EC] made
plain that the provisions in any directive shall not prevent any Member
State from maintaining or introducing more stringent measures for the protection of working conditions compatible with this Treaty. This appears,
at face value, to be the reverse of the presumption in Article 95(3) EC [ex
100a(3) EEC]. Whereas Article 95(3) EC presumes that Commission proposals will take as a base . . . a high level of protection, Article 137(5) EC
[ex 118a(3) EEC] allows for Member States to apply higher, or more stringent, levels of protection set above the minimum requirements contained
in any directives.
A further qualification is contained in the second paragraph of Article
118a(2) EEC [now 137(2) EC] where it is stated that:
Such directives shall avoid imposing administrative, financial and legal constraints
in a way which shall hold back the creation and development of small and mediumsized undertakings.

This small and medium-sized enterprises (SMEs) clause reflects both the
patchwork of compromise necessary to reach agreement during the

118
Art 130r(4) EEC [repealed by the TEU] provided that: The Community shall take action
relating to the environment to the extent to which the objectives [of Community environment
policy] can be attained better at Community level than at the level of the individual Member
States.
119
In the case of the UK, the main statutory provisions had been laid down in the Health
and Safety at Work Act, 1974.

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negotiations, as an area of concern for several Member States, and a recognition of the central role to be played by innovative SMEs in delivering
the employment creation and technological innovation that is central to the
objectives of the internal market programme across a diverse range of
sectors.120
The immediate significance of Article 118a EEC can be measured by reference to its place within the SEA Treaty scheme as an autonomous social
policy base. One consequence of the introduction of Article 118a EEC was
to render obsolete, for the purpose of advancing health and safety policy,
the use of Article 94 EC [ex 100 EEC]. It has already been shown that
Article 95 EC [ex 100a EEC] was introduced as a residual legal base and
derogation from Article 94 EC. In turn, Article 94 EC was retained as
a general provision concerning the establishment or functioning of the
common market and applied, and continues to apply,121 only in those areas
of Community activity where there is an absence of any express reference
in the Treaty.122 Article 118a(2) EEC provided that reference point and,
therefore, as a more specific rule, it superseded Article 94 EC as a legal base
in respect of all measures where the primary purpose was the protection of
the health and safety of workers.123 Only where the protection of health and
safety, or the working environment, were ancillary objectives of the measure
did Article 100a EEC [now 95 EC], and not Article 100 EEC [now 94 EC],
provide the appropriate legal base so long as the primary objective had, as
its object, the improvement of the conditions for the establishment and
functioning of the internal market.124 Indeed, in order to swiftly demonstrate the status of Article 118a EEC as an autonomous legal base for social
policy measures, an alteration was made to two legislative proposals on
health and safety, originally conceived under Article 100 EEC [now 94 EC],
to enable their adoption under the new provisions.125
Having established the status of Article 118a in the EEC/EC Treaty prior
to the Amsterdam Treaty amendments, let us now turn to the obligation on
120
See, for example, Cecchini, n 113 above, p 8; and A Neal, The Industrial Relations in
SMEs in the United Kingdom (1993) 26 Bulletin of Comparative Labour Relations 75 at
767.
121
For an analysis of the status of Art 94 EC in the light of the Tobacco Advertising case,
see the discussion on pp 867 above.
122
Case 43/75, Defrenne v Sabena II [1976] ECR 455, para 63. Cited by AG Lger in Case
C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR I5755, at para
70 of his opinion.
123
Case C84/94, ibid para 12 of the judgment.
124
See Case C376/98, Germany v European Parliament and Council (Tobacco Advertising) [2000] ECR I8419, para 84.
125
Dir 88/364/EEC on the protection of workers by the banning of certain specified agents
and/or certain work activities (fourth individual directive within the meaning of Art 8 of Dir
80/1107/EEC) OJ 1988, L179/44; and Dir 88/642/EEC amending Dir 80/1107/EEC on the
protection of workers from the risks related to exposure to chemical, physical and biological
agents at work, OJ 1988, L356/74.

Health, Safety and the Working Environment 95

Member States to pay particular attention to encouraging improvements,
especially in the working environment, as regards the health and safety of
workers and the objective of harmonisation of conditions in this area, while
maintaining the improvements made. Two questions immediately arise.
What is the scope of the obligation? What is the level of protection to be
afforded to most effectively achieve the objective of harmonisation?

(2) The Scope of the ObligationA Question of Ergonomics?

An examination of the scope of the obligation in Article 118a EEC requires
an assessment of the meaning of the terms working environment, health
and safety. Account must also be taken of the general obligations on
Member States contained in Article 117 EEC [now 136 EC] to promote
improved working conditions, and Article 118 EEC [now 140 EC], which
provides for co-operation in the fields of the prevention of occupational
accidents and diseases and occupational hygiene. The subtleties of this
terminology and the relationship between the related provisions have perplexed institutional actors and academic commentators alike. In the absence
of other legal bases within the revised first Social Chapter, a great deal
depended on the delineation of this area to be covered by any harmonising measures. The Community was faced with a choice of interpretative
options. One interpretation would focus on health and safety measures in
the form of risk assessment, preventing accidents at work, maintaining a
hygienic working environment and combating industrial diseases. An alternative approach would seek to encompass all working conditions that have,
or potentially could have, an effect on the health and safety of each individual worker, within and beyond the work place, that is detrimental to
their mental or physical well-being, including such matters as the organisation of work, maternity provision and action to combat bullying or sexual
harassment.
As we have seen in chapter 2, concepts of occupational health, safety and
hygiene were already well developed in Community law long before the
SEA was adopted. The significance of Article 118a EEC lays with the specific placement of health and safety activity within the context of encouraging improvements especially in the working environment. Article 118a
EEC did not merely provide a legal base with QMV for pursuing the
Communitys existing health and safety programmes, it instead added a new
substantive Treaty dimension of the working environment that created
the potential for a much wider contextual interpretation of well established
concepts.126 For those advocating a broader approach a great prize was at
stake. It was suggested that several long-standing Commission proposals
126

See B Bercusson, European Labour Law (Butterworths, London, 1996) p 70.

96 The Single European ActCatalyst for Action I

opposed or obstructed by the UK could potentially be channelled via the
back door of Article 118a EEC.127 What was required was a logical and
legally robust argument that would galvanise the institutions to act. The
institution most likely to gain was the European Parliament because Article
118a EEC provided not only for QMV but also for co-operation between
the Parliament and the Council in the adoption of legislation.128 The Social
Affairs and Employment Committee of the Parliament, chaired by Mrs
Heinke Salisch, took up this challenge.129
The Salisch Report of 1988 sought to bring a wide range of social policy
proposals within Article 118a EEC on the basis that the harmonization of
working conditions is essential for the completion of the internal market.130
While this argument fitted neatly with the Delors notion of a European
Social Area, it must be regarded as legally specious when account is taken
of the internal market derogation in Article 95(2) EC [ex 100a(2) EEC].
Salischs interpretation of Article 118a EEC itself, however, was more
credible and very innovative. In essence, the main thrust of the Report
was founded upon what Salisch described as an ergonomic analysis of the
concept of the working environment based on:131
The scientific study of the relationship between man and his working environment.
It is concerned with the whole person and not only with the physical environment
in which people work . . . It is therefore only logical for legislation on health and
safety to be based on ergonomic principles.

An ergonomic approach to the working environment takes account of

the impact of economic, social, cultural and political factors affecting the
worker and heightens the importance of safety at work. At the core of
the analysis is an emphasis on the physiological and psychological capabilities of the individual, in other words, his working environment.132
Ergonomics is not a newfangled philosophy. As early as 1978, the Commission had sought to apply the principles of ergonomics in the design,
construction and utilization of plant and machinery as part of the First

127
See A Neal, The European Framework Directive on the Health and Safety of Workers:
Challenges for the United Kingdom (1990) 6 International Journal of Comparative Labour
Law and Industrial Relations 80 at 81.
128
Under Art 252 EC [ex 189c EC, ex 149(2) EEC]. This procedure allowed Parliament to
make legislative amendments. The Council was able to reject the amendments but this required
a majority vote. In practice the co-operation procedure gave the Parliament a greater say over
the content of Community legislation in those areas where it applied. The Amsterdam Treaty
has replaced co-operation in the social policy field with co-decision under Art 251 [ex 189b]
EC, granting the Parliament an even greater influence over the legislative process.
129
The Concept of the Working Environment and the Scope of Article 118a of the EEC
Treaty, Salisch Report, PE DOC A 2226/88, 21 Oct 1988.
130
Ibid p 9.
131
Ibid p 10.
132
Ibid.

Health, Safety and the Working Environment 97

Action Programme on Safety and Health at Work.133 Moreover, Salischs
ergonomic analysis of the working environment was heavily influenced by
the Danish concept of arbejdsmilj.134 Denmark had been the driving force
behind the inclusion of the term working environment in Article 118a
EEC. Arbejdsmilj was the philosophical underpinning for the Danish
Working Environment Act of 1975.135 In his Opinion in the Working Time
case, AG Lger outlined the broad sweep of the Danish statute thus:136
The . . . legislation is not limited to classic measures relating to safety and health at
work in the strict sense, but also includes measures concerning working hours, psychological factors, the way in which work is performed, training in hygiene and
safety, and the protection of young workers and worker representation with regard
to security against dismissal or any other attempt to undermine their working conditions. The concept of the working environment is not immutable, but reflects the
social and technical evolution of society.

This dynamic conception of the working environment recognises that long

working hours, regular night working and carrying out repetitive tasks
may contribute to fatigue and stress, affecting the workers concentration
and endangering their health and safety. In addition, lack of job security
may make the worker more susceptible and put them at greater risk.137
Salisch concluded that the term this area, referred to in Article 118a(1)
EEC must include all working conditions, and therefore all of the fields
referred to in Article 118 EEC [now 140 EC], in order to achieve its objectives. It followed that Article 118a EEC should be used for everything
directly or indirectly related to the physical or psychological make up of
the worker.138
The approach of the Salisch Report was so broad that it would, when
taken to its logical conclusion, have been capable of extending the application of the legal base in Article 118a EEC to cover all provisions concerning workers.139 This was clearly not the intention of the Member States.
The Danish may have been the initiators of Article 118a EEC but the
interpretation of Community law should not be based solely on national
133
Council Resolution of 29 June 1978 on an action programme of the European
Communities on Safety and Health at Work, OJ 1978, C165/1, para 9.
134
Salisch Report, n 129 above, pp 1112.
135
Law No 681 of 23 Dec 1975, which entered into force on 1 July 1977. Nielsen and
Szyszczak suggest the approach is similar in other Nordic countries, pointing to, in addition,
the Norwegian Working Environment Act of 1977 which covers some aspects of the employment relationship including unfair dismissal. See R Nielsen and E Szyszczak, The Social Dimension of the European Community, 2nd edn (Handelshjskolens Forlag, Copenhagen, 1993)
p 233.
136
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, para 42 of the opinion.
137
Salisch Report, n 129 above, p 11.
138
Ibid p 13.
139
This is explicitly stated as the objective, ibid.

98 The Single European ActCatalyst for Action I

concepts, not least in areas where there is a diversity of approaches and
a range of national legislation. It is significant that while AG Lger relied
heavily on the Danish input into the drafting of Article 118a EEC in his
opinion in the Working Time case,140 the judgment of the Court makes no
direct reference to either the Danish influence in general or to ergonomics
in particular. It can also be argued that the inclusion of the terms health
and safety is a reflection of the approach of the majority of Member States
that have a distinct health and safety regime dealing strictly with the workplace as the designated working environment.
These reservations notwithstanding, the Salisch Report was, and remains,
important because it constitutes a powerful case for a more dynamic and
purposive approach to the concept of the working environment that
embraces a wide range of factors affecting the health and safety of the individual worker. This approach has been influential not only on the strategy
adopted by the European Parliament, but also on the legislative programme
of the Commission, which had already resolved, by the end of 1987, in a
Communication issued a year before the completion of the second Safety
and Health Action Programme,141 to embark immediately on a new work
programme and to take full advantage of the opportunities afforded by
the provisions of . . . Article 118a which would include the promotion of
safety and ergonomics at work.142 It was this legislative strategy that would
ultimately give rise to the adoption under Article 118a EEC of contentious
directives concerning Pregnant Workers,143 Working Time144 and Young
Workers,145 under the aegis of the broader Action Programme designed to
give effect to the aims of the Communitys 1989 Social Charter.

140
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, paras 423 of the opinion.
141
Commission Communication of 21 Dec 1987, OJ 1988, C28/2, summary to the Communication. The second action programme on safety and health at work was initiated by a
Council Resolution of 27 Feb 1984, OJ 1984, C67/2. The programme prescribed a specific
set of priority actions to be taken from that date until the end of 1988. The Commissions
1987 Communication was issued on the same date that the Council had adopted a Resolution on Safety, Hygiene and Health at Work, OJ 1988, C28/1. The Council Resolution was
more guarded. It did, however, call for action under Art 118a EEC to be intensified and
expanded but recognised the need to place equal emphasis on achieving the economic and
social objectives of the completion of the internal market. For discussion, see A Neal, Regulating Health and Safety at Work: Developing European Union Policy for the Millennium
(1998) 14 International Journal of Comparative Labour Law and Industrial Relations 217 at
23031.
142
Ibid. Summary and Part II.A.
143
Dir 92/85/EEC on the introduction of measures to encourage improvements in the safety
and health of pregnant workers and workers who have recently given birth or are breast
feeding (tenth individual directive within the meaning of Art 16(1) of Dir 89/391/EEC) OJ
1992, L348/1.
144
Dir 93/104/EC concerning certain aspects of the organisation of working time, OJ 1993,
L307/18.
145
Dir 94/33/EC on the protection of young workers, OJ 1994, L216/12.

Health, Safety and the Working Environment 99

Hence, an expansive interpretation of the working environment
ineluctably leads to a much broader view of the interlinked concepts of
health and safety. In a key passage in its judgment in the Working Time
case the Court explained that:146
There is nothing in the wording of Article 118a to indicate that the concepts of
working environment, safety and health as used in that provision should, in the
absence of other indications, be interpreted restrictively, and not as embracing all
factors, physical or otherwise, capable of affecting the health and safety of the
worker in his working environment, including in particular certain aspects of the
organisation of working time. On the contrary, the words especially in the working
environment militate in favour of a broad interpretation of the powers which
Article 118a confers upon the Council for the protection of the health and safety
of workers. Moreover, such an interpretation of the words safety and health
derives support in particular from the preamble to the Constitution of the World
Health Organisation to which all the Member States belong. Health is there defined
as a state of complete physical, mental and social well-being that does not consist
only in the absence of illness or infirmity.

In opting for a broad conceptual interpretation of Article 118a EEC that

emphasises the health and safety of the individual worker within his own
working environment, and therefore implicitly endorses ergonomic principles, the Court has not only upheld the most essential provisions of the
Working Time Directive,147 fiercely challenged by the UK in its annulment
proceedings, but has also provided a justification for a wide range of other
measures, allowing for full utilisation of Article 118a EEC and now Article
137 EC.
(3) A New Approach to Minimum Standards Harmonisation?
From the above discussion it has been shown that the concepts of the
working environment, health, and safety, are capable of supporting an
expansive interpretation of the obligation in Article 118a EEC. The second
question must now be addressed. In essence, what is the level of protection
to be afforded to workers to make effective the objective of harmonisation
in Article 118a(1) EEC [now part of Article 136 EC]? From the perspective of the Commission, the new legal base provided an immediate
146
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, para 15, emphasis added. The definition is contained in the preamble to the WHO
constitution of July 1946.
147
Dir 93/104/EC, OJ 1993, L307/18. The Directive regulates such matters as, inter alia,
the length of the working week, night work, rest breaks and the right to paid annual leave.
The Court only annulled one minor provision, contained in the second paragraph of Art 5 of
the Dir, that allowed Member States to designate Sunday as a rest day when formulating their
implementing legislation. The Council had failed to explain why Sunday was more closely
connected to health and safety than any other day. Reference in the preamble to cultural, ethnic
and religious factors was deemed insufficient, para 37 ibid.

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opportunity for a focused approach building upon the health and safety
action programmes already adopted and using the model of the first framework Directive, 80/1107,148 to favour a new, more wide ranging and inclusive, framework directive as the most dynamic means of promoting health
and safety in the workplace. Such an approach could, over time, be developed alongside a more expansive interpretation of Article 118a EEC portended by the ergonomics debate and clearly envisaged in the Commissions
1987 Communication establishing a Third Action Programme on Safety
and Health.149 Thus, while the Commission was well aware of the potential of Article 118a EEC as a means of relaunching several long-standing
proposals opposed or obstructed by some of the Member States, their immediate priority was to accelerate the process of regulation at Community,
national and sectoral levels in the health and safety field in order to promote
higher standards of protection at the workplace. The springboard for
achieving these objectives was the second framework Directive, 89/391,
on the Safety and Health of Workers at Work,150 adopted with a view to
the introduction of measures to encourage improvements in the safety and
health of workers at work based on general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced
participation . . . and training of workers.151
An examination of Directive 89/391 reveals two distinct features. First,
as a framework Directive it represents a flexible guideline method of
Community legislation, laying down general objectives and obligations on
employers and workers, while leaving as much scope as possible for the
application of detailed rules at the appropriate level. It was made clear from
the outset that there would be further directives laying down more specific
rules where necessary, but there would also be scope for improvements to
be achieved more directly at a national, sectoral or workplace level. Hence,
the idea of a framework directive is to both direct and facilitate concerted
action at all levels. In this way Directive 89/391 serves as an umbrella under
which Member States can exercise a degree of freedom of action, but the
direction of any activity must lead to an upward harmonisation of the
health and safety protection of workers at work. The Member States made
this explicit in a declaration at the Hanover European Council in June 1989,
when they stated that existing levels of social protection, particularly occupational health and safety, would not be reduced.152 Further guidance can
be found in the preamble of the Directive where it is proclaimed that the
148

OJ 1980, L327/8.
OJ 1988, C28/2.
OJ 1989, L183/1.
151
Ibid. Art 1(1). For a critical analysis, see Neal (1990, International Journal of Comparative Labour Law and Industrial Relations) n 127 above.
152
Social Europe 2/90, n 88 above, p 9.
149
150

Health, Safety and the Working Environment 101

overall goal is to guarantee a better level of protection of the health and
safety of workers153 and, therefore it follows that:154
This Directive does not justify any reduction in levels of protection already achieved
in individual Member States, the Member States being committed, under the Treaty,
to encouraging improvements in conditions in this area and to harmonizing conditions while maintaining the improvements made.

This statement directly assuaged concerns about a minimalist approach

leading to lowest common denominator standards. Moreover, the Directive was not intended to be the last word on the subject. Article 1(3) states
that:
This Directive shall be without prejudice to existing or future national and Community provisions which are more favourable to protection of the safety and health
of workers at work.

The framers of the Directive were seeking to provide a broad basis for
action, allowing for daughter directives as in the case of Directive
80/1107,155 while, at the same time, ensuring that the full operation of
Article 118a EEC was in no way delimited by the scope of the Directive.
Any future measures had to be founded upon Article 118a EEC, whether
or not they took the form of daughter directives. Hence, it is palpably
clear that activity in this field is intended to be dynamic, allowing for an
ergonomic approach to develop over time. The hierarchical relationship
between Directive 89/391 and Article 118a EEC was reaffirmed in the
Working Time case where the Court rejected the UKs contention that following the adoption of Directive 89/391, health and safety measures should
be applied only to particular groups of workers exposed to specific risks
within the context of that Directive. The Court held that previous Council
practice in this field could not justify a derogation from the Treatys rules,
nor could it create a binding precedent.156
The second important feature of the Directive is one of responsibility.
The Directive is intended to be inclusive, simultaneously extending the
scope of activities covered to protect workers in all sectors of activity,
both public and private,157 with the exception of the self-employed and
domestic servants.158 Responsibility for making the provisions effective in
153

Fourth recital of the preamble.

Fifth recital.
155
OJ 1980, L327/8. Art 16 of Dir 89/391 provides that: The Council acting on a proposal from the Commission based on Article 118a . . . shall adopt individual directives inter
alia in the areas listed in the Annex.
156
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR
I5755, para 19. See also, Case C271/94, Parliament v Council [1996] ECR I1705,
para 24.
157
Art 2(1).
158
Art 3(a) defines a worker as any person employed by an employer, including trainees
and apprentices but excluding domestic servants. While all workers, thus defined, are brought
154

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the working environment is placed on both employers and workers.
Responsibility rests primarily with employers159 who have, by virtue of
Article 5(1) a duty to ensure the safety and health of workers in every
aspect related to the work.160 Moreover, Member States can choose, under
Article 5(4) to either place strict responsibility on the employer, or to allow
a limited defence where occurrences are due to unusual or unforeseeable
circumstances, beyond the employers control or to exceptional events, the
consequences of which could not have been avoided despite the exercise of
all due care.
The employer has a general obligation that is both broad and evolutionary as stated in Article 6(1):
Within the context of his responsibilities, the employer shall take the measures
necessary for the safety and health protection of workers, including prevention of
occupational risks and provision of information and training, as well as provision
of the necessary organisation and means.
The employer shall be alert to the need to adjust these measures to take account of
changing circumstances and aim to improve existing situations.

From this general obligation and related provisions in the Directive a wide
range of duties are placed on the employer.161 These include a:
duty of awareness and evaluation of risk;162
duty to eliminate avoidable risks;163
within the scope of the Directive, Art 2(2) contains an additional limitation whereby the Directive is not applicable where characteristics peculiar to certain specific public service activities,
such as the armed forces or the police, or to certain specific activities in the civil protection
services inevitably conflict with it. Nevertheless, where this derogation applies, the health
and safety of workers must be ensured as far as possible in the light of the objectives of the
Directive.
159
Art 3(b) broadly defines employers to include any natural or legal person who has an
employment relationship with the worker and has responsibility for the undertaking and/or
establishment. Employers cannot deflect their responsibilities by enlisting external services or
persons, Art 5(2).
160
Emphasis added.
161
See Neal (1990, International Journal of Comparative Labour Law and Industrial Relations) n 141 above at 845; and C Barnard, EC Employment Law, 2nd edn (OUP, Oxford,
2000) pp 38491.
162
The employer must not only keep himself informed of technological advances and scientific findings concerning work place design, Art 6(2)(e) but also must also be aware of the
capabilities of individual workers, Art 6(3)(b) and must identify and evaluate risks to their
safety and health at work. By virtue of Art 6(3)(a) the employer has a duty to evaluate risks,
inter alia, in the choice of work equipment, the chemical substances or preparations used, and
the fitting-out of work places. Under Art 9(1)(a) the employer must assess the risks facing
groups of workers exposed to particular risks. As the Directive is first and foremost about
establishing general principles, there is no specific guidance about formal procedures or the
rigour of the risk assessment process. Art 6(5) does, however, make it clear that measures
related to safety, hygiene and health of workers may in no circumstances involve the workers
in financial cost.
163
Art 6(2). For example, Art 6(2)(c) obliges the employer to implement measures to, inter
alia, combat risks at source. Under Art 6(2)(d) he must adapt work to the individual espe-

Health, Safety and the Working Environment 103

duty to reduce the dangers posed by unavoidable risks by implementing
general principles of prevention;164
duty to train and direct the workforce;165
duty to inform, consult and provide for balanced participation of workers
and/or their representatives;166
duty to record and be in possession of risk assessments and to list and
report occupational accidents to the national authorities.167
Whilst the employers responsibilities cover every aspect related to the
safety and health of workers at work, the Directive is careful to avoid rigid
cially as regards the design of work places, the choice of work equipment and the choice of
working and production methods, with a view, in particular, to alleviating monotonous work
and work at a predetermined work-rate and to reducing their effect on health. As part of the
general duty the employer must also make adaptations to take account of technical progress,
Art 6(2)(e) and replace the dangerous by the non-dangerous or less dangerous, Art 6(2)(f).
164
The employer must develop a coherent overall prevention policy that must cover technology, organisation of work, working conditions, social relationships and the influence of
factors related to the working environment, Art 6(2)(g). In effect, this amounts to a general
duty to take account of ergonomic principles and to practically apply them. Additional responsibilities include regular health surveillance, Art 14; first-aid, fire fighting and evacuation of
workers, Art 8(1); and to ensure that all workers are able, in the event of serious and imminent danger to their own safety and/or that of other persons, to take the appropriate steps in
the light of their knowledge and the technical means at their disposal, to avoid the consequences of such danger, Art 8(5). In order to carry out his activities of protection and prevention the employer shall designate workers for these tasks or, where this cannot be organised,
enlist competent external services or persons, Arts 7(1) 7(3) and 8(2). The detailed implementation of these provisions can be found in a series of daughter directives on such matters
as, inter alia, reducing the risks relating to exposure to carcinogens, Dir 90/394/EEC, OJ 1990,
L196/1, on the use of personal protective equipment, Dir 89/656/EEC, OJ 1989, L393/181,
and the manual handling of loads, Dir 90/269/EEC, OJ 1990, L156/9.
165
Art 12 sets out an obligation on the employer to ensure that every worker receives adequate safety and health training, in particular in the form of information and instructions specific to his workstation or job. Art 12(1) specifies that the worker should receive this training
on recruitment; in the event of a transfer or a change of job; the introduction of new work
equipment or a change in equipment; and the introduction of any new technology. The training, which should take place during working hours, must be adapted to take account of new
or changed risks and repeated periodically if necessary. In addition, under Art 12(3) workers
representatives with a specific role in protecting the safety and health of workers shall be entitled to appropriate training at the employers expense. Training must be accompanied by
appropriate instructions issued to workers, Art 6(2)(i) and only workers who have received
adequate instructions are to have access to areas where there is serious and specific danger
(Art 6(3)(d)).
166
Art 10(1) obliges the employer to provide all the necessary information to workers
and/or their representatives concerning the safety and health risks and protective and preventative measures and activities in relation to the undertaking in general and each type of workstation and/or job. Art 11 provides for consultation of workers and/or their representatives
including discussions on all questions relating to safety and health at work. Additional consultation and balanced participation must take place with workers or workers representatives
with specific responsibility for the safety and health of workers.
167
Art 9(1)(a)(d). Under Art 9(1)(b) the employer must also decide on the protective measures to be taken and, if necessary, the protective equipment to be used. Art 9(2) provides that
the specific obligations on employers in relation to these matters are to be defined by the
Member States in the light of the nature of the activities and the size of undertakings.

104 The Single European ActCatalyst for Action I

obligations so long as the general duties are adhered to and practised
throughout the Community. Hence, as the Directive is first and foremost
about establishing general principles, there is no specific guidance about
formal procedures or the rigour of the risk assessment process. These are
matters that are left with the Member States who have overall responsibility to provide adequate controls and supervision.168 Moreover, while SMEs
have the same broad duties as large employers, there is discretion for
Member States to address resource issues and to limit the recording and
information responsibilities in line with the specific SME clause in Article
118a EEC.169 The systems for the involvement of workers are left to the
Member States national laws and/or practices, but it is part of the scheme
of the Directive that Article 11(1) presupposes the consultation of workers
and the right of workers, and/or their representatives,170 to make proposals
and have balanced participation in accordance with national laws and/or
practices.171
Responsibility is not, however, a one-way process. Inherent within the
scheme of the Directive are notions of partnership, shared responsibility
and even-handedness,172 albeit that the ultimate objective is to protect the
safety and health of workers. For workers to secure this basic right they
must accept individual responsibility. Article 13(1) declares that:
It shall be the responsibility of each worker to take care as far as possible of his
own safety and health and that of other persons affected by his acts or omissions
at work in accordance with his training and the instructions given by his employer.

168

Art 4(2).
For example, Art 7(5) provides that the size of the undertaking is a relevant matter for
determining the number of designated workers and external services or persons to be consulted in relation to the protection and prevention of occupational risks. It must also be taken
into account when setting the precise numbers to be involved in first-aid, fire fighting and the
evacuation of workers, Arts 8(1) and 8(2). Further, the size of undertakings may be considered when Member States define the precise record keeping obligations under Art 9 and the
appropriate worker information measures under Art 10.
170
For comment, see Bercusson, European Labour Law, n 126 above, pp 35960. Bercusson argues that the notion of individual consultation may be inconsistent with Community
law because the objective, structure and wording of the Directive imply involvement of both
employees and their representatives. The emphasis of the Court, in Cases C382383/92, Commission v United Kingdom [1994] ECR I2479, indicates a more nuanced approach. Whilst
it is now clear that an employer cannot unilaterally choose to consult individual employees
rather than their representatives, it will still be appropriate to inform and consult individuals
where an employee has no representatives, or wishes to be individually involved. Moreover,
the Directive presupposes a partnership approach that, as far as is possible, involves employees and their representatives simultaneously in information, consultation and balanced
participation in health and safety matters.
171
For a study of the effectiveness of participation, see H Krieger, Participation of
Employees Representatives in the Protection of the Health and Safety of Workers in Europe
(1990/91) 6 International Journal of Comparative Labour Law and Industrial Relations 217.
172
See R Baldwin and T Daintith, The European Framework in R Balwin and T Daintith
(eds) Harmonisation and Hazard: Regulating Workplace Health and Safety in the Community (Graham & Trotman, London, 1992) 117 at 3.
169

Article 118b EEC

105

Article 13 contains specific examples of these responsibilities including:

inter alia, correct use of machinery, tools, dangerous substances and personal protective equipment; informing the employer or safety representatives of serious or imminent danger and other shortcomings in the
protection arrangements; and co-operation with the employers safety
arrangements. In return for accepting these responsibilities the worker is
granted an individual right to make health and safety proposals,173 to stop
work if in serious danger174 and to appeal to a competent authority.175
The framework Directive remains dynamic today precisely because of its
flexibility and evolutionary nature. It has provided a basis for 14 daughter Directives and a succession of action programmes.176 Measures can be
constantly updated or, if appropriate, deleted, in response to technological
advances, breakthroughs in disease aetiology and cure, and even the emergence of new industries carrying fresh dangers. Although there is undoubtedly a tension between shared responsibility and effective regulation of
workplace health and safety, this is not necessarily problematic and may be
seen as beneficial. Each worker has an individual stake in the process but,
ultimately, any obligation that he accepts does not diminish the principle
of responsibility that rests with the employer.177

V ARTICLE 118b EECSOCIAL DIALOGUE: A MEANS TO AN END?

In chapter 2 we explored the concept of social dialogue and its development, both formal and informal, prior to the SEA. As early as 1980, the
Economic and Social Committee, in its Prospects for the 80s report, had
proposed concerted action at European level between the two sides of
industry that could, through their own initiative, and backed up by the
Commission, lead to the conclusion of negotiated framework agreements.178 Jacques Delors took up this theme after his assumption of the
Commission Presidency in 1985. Delors believed that the search for consensus and negotiation between the two sides of industry was a vital component of the completion of the internal market and would help European
economies cope with major industrial, technological and social changes.179
Delors convened a series of summit meetings in the run up to the SEA
as a means of injecting life into his conception of a European Industrial
173

Art 11(1).
Art 8(4).
175
Art 11(6).
176
Art 16 provides for a series of individual directives to be adopted to cover specific risks.
177
Art 5(3).
178
Bulletin of the Economic and Social Committee, 10/81, pp 512 at 8.
179
See P Venturini, 1992: The European Social Dimension (European Communities,
Luxembourg, 1989) p 62.
174

106

The Single European ActCatalyst for Action I

Relations Area. At a meeting at Val Duchesse in November 1985 the

employers organisations, UNICE and CEEP,180 met with the European
Trade Union Confederation (ETUC) and established two working parties
on macroeconomic questions and new technologies.181 These working
parties and high-level meetings were intended to provide a springboard for
Article 118b EEC, which declared that:
The Commission shall endeavour to develop the dialogue between management and
labour at European level which could, if the two sides consider it desirable, lead to
relations based on agreement.

In practice, the social partners, whilst they agreed on the desirability of

social dialogue as a process, disagreed both on the need for, and status of,
such agreements. Nine joint opinions were issued by the social partners
between 1986 and 1992 on subjects mainly relating to vocational training,
new technology and the adaptability of the labour market.182 Whilst these
opinions represented important and worthwhile statements of best practice
they were merely declaratory. They created no binding obligations, but
instead indicated areas where there was substantive common ground but
no consensus about the need for formalised agreements. On the one hand,
the ETUC regarded social dialogue as a means to an end, developing
and strengthening, rather than replacing, existing Community legislation
through formalised agreements. On the other hand, UNICE regarded
dialogue as an end in itself, seeking an understanding with the ETUC in
relatively uncontroversial areas but declining, at this stage of the process,
to negotiate agreements which might have had the potential for conversion
into binding Community laws.
For critics of social dialogue under the SEA its limitations were obvious.
Any agreements would reflect the weakened state of trade unions at national
level. They would carry no sanctions and were likely to be little used.183
The joint opinions did, however, provide a basis for further evolutionary
steps to be taken on the road from consensual dialogue to binding agreement. For example, the second Joint Opinion on new technologies,184 while
it was mainly concerned with economic issues, provided, in the view of the
ETUC, a guarantee that the organisation of work and the adaptability of
labour should be negotiated and subject to agreements and/or new statu-

180
The Union of Industrial and Employers Confederations of Europe (UNICE); and the
European Centre of Enterprises and Public Participation (CEEP).
181
Venturini, n 179 above, pp 615.
182
These opinions are listed in the Commissions Green Paper, European Social Policy:
Options for the Union, COM(93) 551, Annex IV, p 100.
183
See B Hepple, The Crisis in EEC Labour Law (1987) 16 Industrial Law Journal 77 at
85; Vogel-Polsky, n 53 above at 75.
184
Joint Opinion of 9 Dec 1988 on New Technologies, Organisation of Work and
Adaptability of the Labour Market.

Article 118b EEC

107

tory rules.185 In its 1988 report on the Social Dimension of the Internal
Market the Commission concluded that the Val Duchesse process needed
to go further with a view to establishing a genuine system of European
social relations but, at least in the short-term, it was unrealistic, because of
the past heterogeneity of the systems in force in the Member States, to consider the notion of a European collective agreement.186
Social dialogue under the SEA left a number of questions unanswered.
How representative were the parties to such agreements? What was
the status of any decisions arising from them? Were the social partners
conducting a form of Community-wide collective bargaining or merely a
structured dialogue? As we shall see in chapter 6, some of these questions
have been answered by the adoption of the Social Policy Agreement and
the provisions now contained in Articles 138 and 139 EC, but the fundamental issues of representativeness and dialogue or bargaining have not
been fully resolved.
In the context of the SEA, legislative harmonisation under Article 118a
EEC and social dialogue under Article 118b EEC provided a variety of
means to further Community social policy within the confines of the general
schema of the internal market. By 1987, when the ink of the signatories of
the SEA was barely dry, the Belgian Presidency,187 the Economic and Social
Committee188 and the Commission189 were seeking to open a second social
policy front. This required agreement on a minimum set of basic social rules
and broad principles designed to ensure balanced progress in both the economic and social aspects of the internal market. Such rules were necessary
both to avoid market distortions and to provide a stable basis for the
furtherance of social dialogue.190 In a highly influential Opinion of the
Economic and Social Committee of November 1987, the notion of social
rights and the single market were intertwined and explained thus:191
Adoption of Community legislation guaranteeing basic social rights immune to competitive pressures is therefore a key stage in the creation of the single market.

This rights-oriented conception of the internal market was a direct challenge to the deregulatory agenda being vigorously pursued domestically,
and increasingly internationally, by the UK. In September 1988, Margaret
185

See T Jaspers, Desirability of European Legislation in Particular Areas of Social Policy

in L Betten (ed) The Future of European Social Policy (Kluwer, Deventer, 1989) 5381 at
745.
186
The Social Dimension of the Internal Market, Social Europe, Special edn (European
Communities, Luxembourg, 1988) p 73.
187
Report to the Labour and Social Affairs Council, May 1987.
188
Opinion of the Economic and Social Committee on the Social Aspects of the Internal
Market (European Social Area) 19 Nov 1987, CES (87) 1069.
189
The Social Dimension of the Internal Market, n 186 above, p 74.
190
CES (87) 1069, n 188 above, para 1.5.
191
Ibid para 1.6.

108 The Single European ActCatalyst for Action I

Thatcher set out her stall in her notable, perhaps notorious, address in
Bruges when she warned that:192
We have not successfully rolled back the frontiers of the state in Britain only to see
them re-imposed at European level; with a European super-state exercising a new
dominance in Brussels.

A new and decisive phase of the period of Thatcherism Versus the Social
Dimension193 had begun.
192

Reported in The Guardian, 21 Sept 1988.

B Hepple, Social Rights in the European Economic Community: A British Perspective
(1990) 11 Comparative Labor Law Journal 425 at 425.
193

4
The Community Social Charter
Catalyst for Action II
I INTRODUCTION: ONE OR TWO CHARTERS?

HEN THE SINGLE European Act was signed, in the aftermath

of the Commissions White Paper on the Internal Market, it
appeared to be little more than a vehicle for implementing the
1992 programme through a limited application of qualified majority voting
in the Council. In the preceding analysis, the social policy repercussions
of the revised EEC Treaty, and its dynamic effects on the institutional and
social policy actors, have been highlighted alongside its limitations. The
substantive provisions of the SEA represented a further stepping-stone in
the incremental process of social policy integration without challenging the
orthodoxy of the social market/social rights dichotomy. Beneath the surface,
however, there was room for development of a parallel strand of social
policy rooted in an emerging conception of social citizenship. A vital clue
can be found in the third recital of the preamble of the SEA, which declared
that the Community was:
Determined to work together to promote democracy on the basis of fundamental rights recognised in the constitutions and laws of the Member States, in the
Convention for the Protection of Human Rights and Fundamental Freedoms and
the European Social Charter, notably freedom, equality and social justice.

Whilst this declaration may be regarded as essentially rhetorical,1 weak

enough to escape the attention of Mrs Thatchers blue pencil, it helped to
perpetuate a vision of Europe that transcended economic integration and
recognised that without political integration there would always be a social
rights deficit. As Poiares Maduro explains:2
1

For comment, see L Betten, Prospects for a Social Policy of the European Community
and its Impact on the Functioning of the European Social Charter in L Betten (ed) The Future
of European Social Policy (Kluwer, Deventer, 1989) 10141 at 111. Betten argues that even
though this is preamble language the wording is considerably more precise than the original
Treaty preamble and the specific reference to the ESC is important.
2
See M Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and
Social Rights in the EU in P Alston (ed) The EU and Human Rights (OUP, Oxford, 1999)

110 The Community Social CharterCatalyst For Action II

For those who argue in favour of a model of European integration restricted to economic integration, the goal is to maximise wealth (efficiency) through free trade and
market integration. Social rights may be required, but only as a form of securing a
level playing field and fair competition. For those who argue in favour of a model
of political integration, wealth maximisation has to be complemented by some criterion of solidarity and distributive justice in the new political community. Social
rights will be a requirement independent of fair competition and arising from membership of that political community.

Hitherto our analysis has been mainly confined to the development of social
rights that are directly or indirectly linked to economic objectives. As we
have seen in chapter 3, an increase in the pace of economic integration is
not necessarily inimical to social objectives and can even be a catalyst for
the establishment and further development of social rights.3 Economic integration alone will not, however, secure social rights that are interdependent
with but not dependent upon the market. This broader political vision,
linked to an embryonic conception of a Community or Union citizenship, was first mooted in the European Parliament4 and explained in the
Tindemans Report of 1975 which concluded that:5
The gradual increase in the powers of the European institutions which will make
itself felt while the Union is being built up, will make it imperative to ensure that
rights and fundamental freedoms, including economic and social rights, are thus
recognized and protected. In this the Union will find confirmation of its political
objectives.

While an abortive attempt had been made to incorporate the European

Convention on the Protection of Human Rights and Fundamental Freedoms
(ECHR) into Community law in 1979,6 it fell to the Belgian Presidency, in
the first half of 1987,7 to introduce the concept of a core of fundamental
workers rights that could provide the two sides of industry with a stable

44972 at 466. See also, Lord Wedderburn, European Community Law and Workers Rights:
Fact or Fake in 1992? (1991) 13 Dublin University Law Journal 1.
3
Reich has described this process as social statisation or Versozialstaatlichung, whereby
the Community has approached policies at the fringes of traditional social policy, such as equal
opportunities and health protection, in an interventionist fashion. See N Reich, Schutzpolitik
in der Europischen Gemeinschaft in Spannungsfeld von Rechtsschutznormen und institutioneller Integration (Hennies und Zinkeisen, Hanover, 1988) at 7. Cited by S Leibfried and
P Pierson, Prospects for Social Europe (1992) 20 Politics & Society 333 at 335.
4
European Parliament Resolution of 10 July 1975 on a Charter of the Rights of the Peoples
of the European Community, OJ 1975, C179/28.
5
COM(75) 481, Bulletin of the European Communities Supplement 1/76, p 26.
6
Commission Memorandum of 4 April 1979, Bulletin of the European Communities
Supplement 2/79, p 5. See K Economides and J Weiler, Accession of the Communities to the
European Convention on Human Rights: Commission Memorandum (1979) 42 Modern
Law Review 683.
7
Report of the Social Affairs Council, May 1987.

Introduction: One or Two Charters?

111

and common foundation for bargaining. This offered a limited notion of

what might be achieved, but what was now required, in the context of the
SEA preamble, was a much more rounded and intellectually sustainable case
for incorporating a social citizenship agenda into the internal market
process itself. A decisive step in this direction came from the Economic
and Social Committee, in its Beretta Report of September 1987.8 The
Committee, having analysed the need for progress in areas such as the
length of working time, work organisation and the need to restructure
the labour market in response to technological changes, concluded that
there was a pressing need for basic social rules to avoid market distortions
and provide a stable basis for social dialogue.9
The Committee recommended the adoption of a framework directive
setting out inalienable basic social rights inspired not only by existing Commission proposals but also sourced from International Labour
Organisation (ILO) declarations, the ECHR and the European Social Charter
(ESC).10 In a subsequent Opinion, in February 1989, the Committee
referred to a whole raft of international obligations endorsed by the Member
States to draw attention to the need for such a guarantee to be aimed not
at establishing new rules, but as a way of taking account of existing rules
already agreed at other levels. They specifically rejected the idea of a separate
Community Social Charter.11 It was left to the Commission to decide whether
to pursue the idea of a Social Charter further.
One of the options open to the Commission at this stage would have been
to propose the direct incorporation of the ESC into Community law either
as a Treaty amendment or in the form of a directive.12 This option carried
a number of attractions in the late 1980s and, indeed, remains valid today
because, although there is now an explicit reference to the ESC and fundamental social rights in the revised EC Treaty,13 it is purely rhetorical.
Moreover, as we shall see in chapter 12, the Charter of Fundamental Rights
of the European Union, proclaimed in December 2000, which also draws
heavily on the ESC, is non-binding.14
First, all Member States of the Community have also been members of
the Council of Europe from its formation in 1949 and are contracting
parties to the ESC, which is long established as an international instrument
of fundamental social rights, having been signed in Turin in 1961, effective
8
Doc CES 225/87. Beretta was the rapporteur for the Committee which adopted an
Opinion endorsing the report at its meeting of 19 Nov 1987, Doc CES 1069/87.
9
Doc CES 1069/87, ibid para 1.5.
10
Ibid para 2.1.
11
Doc CES 270/89, 22 Feb 1989.
12
See Betten in Betten, n 1 above at 122.
13
Art 136 EC urges the Community and the Member States to have fundamental social
rights, such as those in the ESC and the Community Social Charter, in mind when seeking to
fulfil their social policy objectives.
14
OJ 2000, C364/1.

112 The Community Social CharterCatalyst For Action II

in international law from 1965 and subsequently revised in 1996.15 As contracting parties of the ESC the Member States have committed themselves
to pursue by all appropriate means the effective realisation of the 19 rights
contained in the original ESC.16 The ESC is concerned with economic and
social rights as distinct from the ECHR, which guarantees civil and political rights. Although this is not always an easy distinction, it mirrors the
separation at the level of universal rights maintained through the adoption
of two United Nations International Covenants on, respectively, Economic,
Social and Cultural Rights,17 and Civil and Political Rights.18 There would
therefore be logic to incorporating the ESC into Community law as an
accepted foundation of European fundamental social rights. This would
also help to address the notion of a separate European approach to human
rights generally and social rights in particular.19
Second, by incorporating the ESC, the Community would be accepting a
broad conception of social rights that extends beyond rights linked directly
to an employment relationship. This can be demonstrated by distinguishing between specific workers rights contained in the ESC and other
provisions that reflect social citizenship values and apply to all citizens
irrespective of their employment status. For example the core workers
rights in the ESC include, inter alia:
the
the
the
the
the

right
right
right
right
right

to
to
to
of
to

work (Article 1);

just conditions of work (Article 2);
safe and healthy working conditions (Article 3);
workers to a fair remuneration (Article 4);
organise (Article 5);

15
529 UNTS No 89. The original ESC has been extended by Protocols issued in 1988, 1991
and 1995; now consolidated in the revised ESC adopted on 14 April 1996 (Council of Europe,
Strasbourg, 2000). The Revised ESC entered into force in July 1999. As of 1 June 2001, three
EU Member States had ratified the revised Charter: France, Ireland and Sweden. Seven others
had indicated an intention to ratify: Belgium, Denmark, Finland, Greece, Italy, Portugal and
the UK: <http://www.humanrights.coe.int/cseweb/GB/index.htm>. For further discussion, see
D Harris, The European Social Charter, 8th edn (University of Virginia Press, Charlottesville,
1984); O Kahn-Freund, The European Social Charter in F Jacobs (ed) European Law and
the Individual (North-Holland, Amsterdam, 1976) 181211; L Betten and N Grief, EU Law
and Human Rights (Longman, Harlow, 1998) pp 4252; N Casey, The European Social
Charter and Revised European Social Charter in C Costello (ed) Fundamental Social Rights:
Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights (Irish
Centre for European Law, Dublin, 2001) 5575; and V Shrubsall, The Additional Protocol
to the European Social CharterEmployment Rights (1989) 18 Industrial Law Journal 39.
16
Art 20 ESC.
17
999 UNTS No 3. For analysis, see M Craven, The International Covenant on Economic,
Social and Cultural Rights (Clarendon Press, Oxford, 1995).
18
999 UNTS No 171. Both Covenants were adopted in 1966.
19
See C Leben, Is there a European Approach to Human Rights? in Alston ed, n 2 above,
6997. Leben argues that the notion of a European approach to human rights can be traced
back to the age of enlightenment, notably the Glorious Revolution in England in 1689 and,
most emphatically, the French Revolution of 1789.

Introduction: One or Two Charters?

113

the right to bargain collectively (Article 6);

the right of employed women to protection (Article 8);
the right of migrant workers and their families to protection and assistance (Article 19).
Social citizenship rights include, inter alia:
the right of children and young persons to protection (Article 7);
the right to protection of health (Article 11);
the right to social security (Article 12);
the right to social and medical assistance (Article 13);
the right to benefit from social welfare services (Article 14);
the right of the family to social, legal and economic protection (Article
16).
Whilst the original version of the ESC contained some notable gaps: for
example, rights to housing, rights to protection against poverty and social
exclusion, the right of the elderly to social protection and other employment rights added later by three protocols adopted between 1988 and
1995;20 it came close to fulfilling Marshalls classic definition of social
citizenship encompassing:21
. . . the whole range from the right to a modicum of economic welfare and security
to the right to share to the full in the social heritage and to live the life of a civilised
being according to the standards prevailing in society.

Third, incorporation of the ESC into Community law would simultaneously

avoid the problem of overlapping and even contradictory rights and
the potential for conflict between Council of Europe and Community
Charters.22 It would also have the advantage of elevating the status of the
ESC, described by Kahn-Freund as a big footnote to the ECHR.23 While
the ESC creates positive legal obligations on the contracting parties in international law, its provisions are not self-executing or directly effective in the
Member States of the Council of Europe. Without incorporation into
domestic law it has, at most, a reflex effect24 as a source of law in the
Member States and also, perhaps more importantly, for the Community. As
Kahn-Freund explains, the ESC provides a general principle of Community

20
Additional employment rights include, inter alia: the right to protection in cases of
termination of employment; the right to information and consultation; the right to equal
opportunities and equal treatment in employment. The additional rights are contained in Arts
2031 of the Revised ESC.
21
T Marshall, Social Policy (Hutchinson, London, 1975) p 7. See further, T Hervey,
European Social Law and Policy (Longman, Harlow, 1998).
22
See Betten in Betten, n 1 above at 12628.
23
Kahn-Freund, n 15 above at 182.
24
Ibid at 184. See, generally, R Rogowski and T Wilthagen (eds) Reflexive Labour Law
(Kluwer, Deventer, 1994).

114

The Community Social CharterCatalyst For Action II

law for interpretation by the Court of Justice that crystallises25 into a legal
rule at Community level, but only where there is a link with Community
competence. The European Court of Human Rights has no jurisdiction over
the ESC and there is no executive, akin to the European Commission of
Human Rights. Instead, an expert body, the European Committee of Social
Rights, undertakes supervision of the ESC, and now the Revised ESC.26
Incorporation of the ESC into Community law would make it supranational, overcoming its operative limitations within the Council of Europe
structure, whilst leaving the supervisory mechanisms intact.27
There are a number of reasons why incorporation of the ESC was not
pursued at this time and remains an open question today. First, many important social citizenship and employment rights, such as rights to education and housing and the general non-discrimination clause, were not part
of the 1961 Charter, leaving important gaps in coverage. Second, there was
the problem of Treaty competence. Incorporation was only possible by way
of a Treaty amendment or Community legislation derived from the general
powers provisions in Article 308 EC [ex 235 EEC]. As both routes required
unanimity among the Member States, incorporation was, in practice, a nonstarter because of the implacable opposition of the UK to the expansion of
Community social policy during this period. Moreover, the use of Article
308 EC, in the context of the social provisions applicable at the time of the
SEA, would have required a request to the Court for an opinion on the
compatibility of any envisaged agreement with the Treaty under the procedure in Article 300(6) EC [ex 228(6) EEC]. Although the issue had not been
tested at the time, such a request would almost certainly have stopped the
process in its tracks. Indeed, when the Council raised a similar question,
concerning accession of the Community to the ECHR, the Courts answer
was resoundingly negative.28 Third, the Community has its own legal per25

Kahn-Freund, ibid at 19798.

Following the amending Protocol of 1991 this body replaced the original Committee of
Independent Experts, a move intended to increase the experts status and power. See further,
Casey, n 15 above.
27
See Betten in Betten, n 1 above, p 134.
28
Opinion 2/94 [1996] ECR I1759. The Courts judgment was based on the notion of
conferred powers and the duty of the Community to act within those powers under Art 3b
[now 5] EC. Although the Treaty on European Union, 1993, added Art 5 EC, the notion of
conferred powers can be derived directly from Art 308 EC [ex 235 EEC], which only permits
action to further one of the objectives of the Community. The Court concluded: no Treaty
provision confers on the Community institutions any general powers to enact rules on human
rights or to conclude international conventions in this field (para 27). Art 308 EC could not
be used as the basis for the adoption of provisions whose effect would, in substance, be to
amend the Treaty without following the procedure that it provides for that purpose (para 30).
Such a modification would be of constitutional significance and beyond the scope of Art 308
EC (para 35). For discussion, see The Human Rights Opinion of the ECJ and its Constitutional Implications (CELS Occasional Paper No 1, Cambridge, 1996); G Gaja, Opinion 2/94,
Accession by the Communities to the European Convention for the Protection of Human
Rights and Fundamental Freedoms (1996) 33 Common Market Law Review 973; and Betten
and Grief, n 15 above, pp 11123.
26

The Evolution and Legal Scope of the Social Charter

115

sonality29 and is conscious of the separate legal personality and territorial

coverage of other international institutions. This has led to sensitivity and
caution whenever proposals have been put forward to adopt or incorporate rights or obligations derived from other international sources of law.30
In the event, the Commission decided to press ahead, in May 1989,31
with its own proposal for a Community Social Charter and, following
the publication of a further draft,32 a final amended text was issued by 11
of the then 12 Member States as a non-binding solemn declaration at the
Strasbourg European Council on 9 December 1989.33 The Community
Charter of Fundamental Social Rights of Workers was born.34 In anticipation of the Councils decision, the Commission had, two weeks earlier, published an Action Programme35 containing 47 initiatives36 designed to ensure
the early implementation of the most urgent aspects37 of the principles set
out in the Charter.
The remainder of the chapter will be broken down into two sections.
First, there will be an overview of the evolution of the Social Charter and
an assessment, in the light of the Charters non-binding status, of its ambitions and legal scope. Secondly, there will be an analysis of the specific
fundamental social rights contained within the Charter and the proposals
in the Commissions accompanying Action Programme.
II THE EVOLUTION AND LEGAL SCOPE OF THE COMMUNITY
SOCIAL CHARTER

(1) Citizens Rights or Workers Rights?

The Commissions draft proposals of May and September 1989 called for
the adoption of a Community Charter of Fundamental Social Rights. The
29

Art 281 EC [ex 210 EEC].

See, for example, the Simitis Report on Affirming Fundamental Rights in the European
Union Time to Act (European Commission, Brussels, 1999). A group of legal experts, appointed
by the Commission, called for recognition of both economic and social rights contained in the
ECHR, the ESC and ILO conventions and concluded, at p 17, that all rights should be set out in
a single text to be inserted into the Treaties. For further discussion, see ch 12.
31
COM(89) 248, reproduced in Social Europe 1/90, pp 926.
32
COM(89) 471, reproduced in Social Europe 1/90, pp 97101.
33
The UK refused to sign the Charter. For Mrs Thatcher, commenting on the first draft, it
was more like a socialist Charter. House of Commons, Official Report, vol 153, col 474, 18
May 1989. See B Hepple, Social Rights in the European Community: A British Perspective
(1990) 11 Comparative Labor Law Journal 425 at 425.
34
Luxembourg: European Communities, 1990. The text of the Charter is reproduced
in Social Europe 1/90, pp 4650. For contemporary assessments, see B Bercusson, The
European Communitys Charter of the Fundamental Social Rights of Workers (1990) 53
Modern Law Review 624; B Hepple, The Implementation of the Community Charter of
Fundamental Social Rights (1990) 53 Modern Law Review 643; and P Watson, The
Community Social Charter (1991) 28 Common Market Law Review 37.
35
COM(89) 568, 29 Nov 1989, reproduced in Social Europe 1/90, pp 5276.
36
Ibid Social Europe 1/90, pp 523.
37
Ibid at 54.
30

116

The Community Social CharterCatalyst For Action II

title of the proposed Charter echoed the language of the second Opinion
of the Economic and Social Committee on Basic Community Social
Rights,38 but whereas the Committee had sought a guarantee of fundamental social rights that were part of the common heritage and values
of the Member States, a European social model,39 they had rejected the
notion of a Charter, reflecting a widely shared concern about potential conflict and confusion with the ESC.40 The Commissions draft Charter, while
also drawing inspiration from ILO Conventions and the ESC, offered its
own enumeration of fundamental social rights for citizens.41 By offering
social rights to all citizens the Commission were seeking a wide definition
of social rights that transcended nationality and extended beyond the
employment relationship. Hence, under the Commissions proposals, all
citizens were to have rights to adequate social protection, an income in
retirement, education and training.42 The draft also took account of the
socially excluded; noting that one of the priority objectives in the economic and social field is to combat unemployment.43 This approach, if fully
implemented, would have guaranteed a wider range of rights than those
contained within the ESC and provided a foundation for a European social
state (Sozialstaat)44 because constitutionalising social citizenship rights
would create a European sphere of entitlements to a decent livelihood.45
The Communitys heightened emphasis on social citizenship and social
inclusion was not to last, at least in the short term. Although the second
Commission draft had reinforced references to the social rights of citizens,46
the French Presidency of the Council presented a drastically revised draft
at Strasbourg that formed the basis for the final text. Most specifically, the
title of the document had been changed to the Community Charter of the
Fundamental Social Rights of Workers.47 Every reference in the draft to
citizens had been deleted and replaced with workers or persons. Even
though the UK had dissented from the final text, the other 11 Member
States were only prepared to define a social dimension that granted rights
38

Doc CES 270/89, 22 Feb 1989.

Ibid para 12.
40
See, especially, Betten in Betten, n 1 above at 126.
41
COM(89) 248, 31 May 1989, para 5 of the draft preamble.
42
Ibid Title I, draft points 9,13 and 22.
43
Ibid para 3 of the draft preamble.
44
See Leibfried and Pierson, n 3 above at 336; and Hepple (1990, Modern Law Review)
n 34 above, who explains, at 653, that the notion of a Sozialstaat is derived from the German
public law principle of social government based on the rule of law, Art 28(1) of the Basic
Law, and also Art 20 thereof, which defines Germany as a social Federal State. In essence,
the Sozialstaat requires the state to create a just social order.
45
Leibfried and Pierson, ibid.
46
COM(89) 471, reproduced in Social Europe 1/90, pp 97101.
47
For a very useful comparison between the draft and the final text, see Annex 1 of the
Fourth Report of the Employment Committee of the House of Commons Session 199091,
The European Community Social Charter (HMSO, London, 1991).
39

The Evolution and Legal Scope of the Social Charter

117

to workers.48 References to combating unemployment and social exclusion

were struck out or watered down.49 Hence the Charter protects workers
who are not citizens but not citizens who are not workers.50 Such an idiosyncratic outcome can be put down, in part, to the inevitable machinations
and compromises that take place at the level of the European Council. This
would be a comfortable conclusion to draw but a partial one. A more convincing explanation is that this push for social citizenship was premature
for three main reasons.
First, the distinction between workers and citizens was reconcilable
with the goals of the French Presidency that sought, as a priority, to achieve
a Community policy for workers, represented by their trade unions. A bridge
could be built between the French approach and that of the Federal
Republic of Germany for a Community social market based on policies that
support allocative efficiency and optimum levels of production at national
level.51 Secondly, there was no Treaty foundation for moving further because,
at this stage, there was no reference to citizenship of any kind in either the
original EEC Treaty or the SEA. Third, it followed that the conditions had
not yet been created for a European Sozialstaat where the tenets that drive
national social policypublic health, education, housing and social protectioncould be at the forefront of a Community social policy.52 For instance,
the Charter promotes health protection and safety at the workplace,53 but not
public health54 and a minimum age of employment for children,55 but not
education.56 Workers had a clearly established status in Community law as
48
See Bercusson (1990, Modern Law Review) n 34 above at 62627; and E Whiteford,
W(h)ither Social Policy? in J Shaw and G More (eds) New Legal Dynamics of European
Union (Clarendon Press, Oxford, 1995) 11128 at 117. As Whiteford notes: while the UK
objections to Community actions in the social field appear to have been consistent and predictable, the positions taken by other member states diverge significantly from their public
affirmation of support for the social dimension.
49
The reference to unemployment in para 3 of the draft preamble was excised altogether.
Moreover, para 7 of the draft preamble referred to the need to combat every form of social exclusion. The final text merely stated that it is important to combat social exclusion, para 8.
50
House of Commons Report, n 33 above, paras 524. There are several references in the
Charter to rights extending to every worker of the European Community (points 1, 8, 9, 10,
11, 15 and 24). There is no apparent restriction concerning nationality or citizenship. Indeed,
the preamble explicitly provides for equal treatment of workers who are legally resident nationals of non-member countries and members of their families (para 9).
51
See J Story, Social Europe: Ariadnes Thread (1990) 13 Journal of European Integration 151 at 15560.
52
See M Kleinman and D Piachaud, European Social Policy: Conceptions and Choices
(1993) 3 Journal of European Social Policy 1.
53
Point 19.
54
Kleinman and Piachaud, n 52 above at 34. The authors define allocative efficiency as
a socially efficient level of public services, such as health care and education. It follows that
socially efficient state provision creates the ingredients for high levels of productivity and
output from a well educated, highly trained and healthy workforce.
55
Point 20.
56
Kleinman and Piachaud, n 52 above at 3. The European Parliament had earlier proposed
that these areas should be included in the Charter: EP Doc A2-399/88.

118 The Community Social CharterCatalyst For Action II

market citizens but the European citizen had not yet been conceived.57 This
distinction, as it existed pre-Maastricht, was neatly summarised by Judge
Mancini in his 1989 address at Harvard University where he observed that:58
The Treaty does not safeguard the fundamental rights of individuals affected by its
application, nor does it recognise, even in an embryonic form, a constitutional right
to European citizenship. Europe cannot confer citizenship: this remains the prerogative of the Member States. By the same token, individual citizens of a Member
State are entitled to move from their State to another Member State exclusively by
virtue of their being workers, self-employed persons or providers of services, that
is qua units of a production factor.

Therefore, by deleting all references to citizens from the Charter, and

by implication any connotations of a nascent European citizenship, the
Member States were reaffirming the boundaries of Community law as they
stood at the time. Citizenship had to be understood as purely a national
construct and the very possibility of ambiguity predicated that the rights in
the Charter had to be confined to workers. The Member States would have
been wary that the very notion of social citizenship carries with it ideas
of entitlements and guarantees. As Everson explains, when discussing
Marshalls classic citizenship thesis59 and Dahrendorfs reformulation
thereof,60 citizenship is best understood as a status because:61
Within this reformulation it is the notion of entitlement by right which consequently creates the status of citizenship; a status which is constitutive of the person,
attaching to each and every individual regardless of his or her personal attributes
or the prevailing labour or market conditions.

For those advocating a European Sozialstaat the development of social

citizenship based on a foundation of social entitlements is a sine qua non.
Indeed a powerful analogy can be drawn with the role of social policy in
integrating the Nineteenth Century European nation-state.62 Paradoxically,

57
See M Everson, The Legacy of the Market Citizen in Shaw and More, n 48 above,
7390. For comment, see Poiares Maduro, n 2 above at 462.
58
G Mancini, The Making of a Constitution for Europe (1989) 26 Common Market Law
Review 595 at 596.
59
T Marshall, Citizenship and Social Class and Other Essays (CUP, Cambridge, 1950).
Marshall regards the citizen as sovereign. The sovereign citizen is entitled to respect as an
autonomous being and inclusion in the disposal of state power. See Everson, n 57 above, at
823.
60
R Dahrendorf, Der Moderne Soziale Konflikt (DVA, Stuttgart, 1992).
61
Everson, n 57 above at 83.
62
G Majone, The European Community Between Social Policy and Social Regulation
(1993) 31 Journal of Common Market Studies 153 at 159. In Majones view this analogy is
dubious not least because, at the time, entrepreneurs were only persuaded to support the establishment of the social state in return for a promise of greater protectionism against foreign
imports. Such a bargain, Majone notes at 159, would hardly be possible under present
circumstances.

The Evolution and Legal Scope of the Social Charter

119

it is precisely for this reason that the Member States have consistently
rejected such an approach. From the perspective of the Member States, they
have already established successful welfare states at national level and, as
Majone63 notes, it is this very success that sets limits to an expanded social
policy competence of the Community. The same argument applies even in
the light of welfare reform and modernisation of the social state. Indeed
with greater involvement of civil society in the co-ordination or provision
of welfare, or to use Streecks terminology, neo-voluntarism,64 the prospect
for harmonisation either as a method or as a goal becomes weaker. Moreover, even the Commission, while asserting the rhetoric of social citizenship
in the drafts of the Charter, was able to recognise the inherent limitations
of this concept in the context of the Treaties and political realities. The
Commissions 1989 Action Programme baldly states:65
The social security schemes vary greatly in nature from one Member State of the
Community to another. They reflect the history, traditions and social and cultural
practices proper to each Member State, which cannot be called into question. There
can therefore be no question of harmonizing the systems existing in these fields.

Hence, by restricting the reach of the Charter to workers, the Member States
were reinforcing the existing balance between national and Community
competence while, at the same time, seeking to create a Community
vehicle for establishing targeted minimum levels of employment, or
employment-related, rights at national level, primarily to protect health and
safety and combat social dumping, without opening up the possibility of
apparently limitless personal social rights falling within the purview of the
Community. This approach ensured that there could be no immediate possibility of a spill-over from social-market rights for workers to social rights
for citizens.66 The Charter is therefore firmly placed within the social dimension of the Internal Market for, as Hervey explains, Community provisions
are constructed according to their universalist social function only where
to do so actually serves a latent market ideology.67 The Member States
63

Ibid at 15963.
W Streeck, Neo-Voluntarism: A New European Social Policy Regime? (1995) 1
European Law Journal 31 at 52. According to Streeck: Neo-voluntarism in social policy
represents a break with the practice of the European welfare state to create hard, legally
enforceable status rights and obligations for individual citizens and organized collectives acting
in, taking advantage of, and being disadvantaged by market relations. Compared to welfare
state interventionism, neo-voluntarism is much less statist, reflecting the European Unions lack
of State capacity.
65
Social Europe 1/90, p 64. See Majone, n 62 above at 161.
66
See Streeck, n 64 above at 45.
67
T Hervey, Migrant workers and their families in the European Union: the pervasive
market ideology of Community law in Shaw and More, n 48 above, 91110 at 110. See also,
Majone, n 62 above, who argues, at 156, that measures proposed by the Commission in the
social field must be compatible with the economic constitution of the Community, that is,
with the principles of a liberal economic order.
64

120 The Community Social CharterCatalyst For Action II

augmented this position, as we shall see, by ensuring that the Charter has a
non-binding status and operates only in strict accordance with the principle
of subsidiarity.
The final text is a messy compromise. The Commissions draft, although
severely bullet-ridden, remained partially intact. Clauses drafted in the
context of social citizenship had to be reconciled with revisions that
reasserted the social dimension as an aspect of the internal market. The
thirteenth recital of the preamble is a case in point. The final text reads as
follows:68
Whereas its aim is . . . to declare solemnly that the implementation of the Single
European Act must take full account of the social dimension of the Community and
that it is necessary in this context to ensure at the appropriate levels the development of the social rights of workers of the European Community, especially
employed workers and self-employed persons.

The Commissions September draft had read:69

Whereas its aim is . . . to declare solemnly that the implementation of the Single
European Act must be accompanied, either at Community level or at the level of
the Member State or of their constituent parts, by the development of the social
rights of citizens of the European Community, especially workers and self-employed
persons.

The outcome is deeply ambiguous. Bercusson argues that to take full

account of the social dimension necessarily implies that implementation
should be not of the internal market only.70 He concludes that this is a
fundamental guideline for both the Commission and the Court in
interpreting the Charter.71 Therefore, providing the Commissions proposals are within the Communitys area of competence,72 a dynamic implementation of the Charter is possible notwithstanding the apparent
limitation of the social dimension to employed workers and self-employed
persons. In order to explore this further let us first consider the preliminary question of who is a worker under Community law before proceeding to examine the social rights that the Charter seeks to guarantee for these
workers.
For the purposes of Community law there are two discrete conceptions
of a worker. First, in the context of free movement of workers between
Member States, a worker must be a Community worker pursuing an eco68
69
70
71
72

Words added to the final text are in italics.

COM(89) 471. Words deleted are in italics.
Bercusson (1990) Modern Law Review, n 34 above at 625.
Ibid.
A requirement stipulated in point 28 of the Charter.

The Evolution and Legal Scope of the Social Charter

121

nomic activity.73 As the Court explained in Hoekstra74 the definition of a

worker, for the purposes of Articles 3942 EC [ex 4851 EEC], is a matter
for the Community and not the Member States to determine, for otherwise
the Community rules on free movement of workers would be undermined
because Member States would be able to unilaterally answer the question
who is a worker? National laws could then be used to exclude certain categories or groups of persons from Community protection. In seeking to
explain the Community concept of a worker the Court, in Lawrie-Blum,75
held that the definition of worker must be based on objective criteria that
distinguish the employment relationship by reference to the rights and
duties of the persons concerned. The essential feature of an employment
relationship is that for a certain period of time a person performs services
for and under the direction of another person in return for remuneration.76
The Court had earlier decided, in Levin,77 that part-time work is capable
of being a genuine and effective economic activity of an employed person,
as distinct from activities that are merely marginal and ancillary.78 For a
large number of persons such employment constitutes an effective means
of improving their living conditions.79 Therefore, so long as there is a clear
and dominant economic purpose to the activity, and an employment relationship based on subordination while those activities are being carried out,
the individual is a worker for the purposes of Community law and entitled
to equal treatment with nationals of the State in question and all the consequential rights arising from Articles 3942 EC.80 Moreover, these rights
must be applied not only to a Community worker, but extended also, by
73
Case 13/76, Don v Mantero [1976] ECR 1333. For the purposes of the interpretative
Regulation 1612/68/EEC, OJ 1968, L257/2, any Community national has, under Art 39 EC
[ex 48 EEC], the right to take up and pursue an activity as an employed person, Art 1(1).
Note, however, the broader reach of Reg 1408/71/EEC, OJ 1971, L149/2 [now amended and
consolidated as Reg 118/97/EC, OJ 1997, L28/1] which applies national social security
schemes to employed and self-employed persons and to members of their families moving
within the Community.
74
Case 75/63, Hoekstra (ne Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en
Ambachten [1964] ECR 177 at 184.
75
Case 66/85, Lawrie-Blum v Land Baden-Wrttemberg [1986] ECR 2121.
76
Ibid para 16.
77
Case 53/81, Levin v Staatssecretaris van Justitie [1982] ECR 1035.
78
Ibid para 17. For example if the main purpose of the activity is rehabilitation or reintegration into society, Case 344/87, Bettray v Staatssecretaris van Justitie [1989] ECR 1637; or
education, Case 197/86, Brown v Secretary of State for Scotland [1988] ECR 3205. For a
broader approach, see Case 196/87, Steymann v Staatssecretaris van Justitie [1988] ECR 6159;
and Case 39/86, Lair v Universitt Hannover [1988] ECR 3161.
79
Levin, ibid para 15. For an example of the application of this test, see Case 139/85,
Kempf v Staatssecretaris van Justitie [1986] ECR 1741, where the Court held that a part-time
worker, who was earning less than the minimum level of subsistence as defined by national
law, was included within the Communitys meaning of a worker even though they needed to
have recourse to state social protection.
80
See C Barnard, EC Employment Law, 2nd edn (OUP, Oxford, 2000) ch 3.

122

The Community Social CharterCatalyst For Action II

virtue of Regulation 1612/68,81 to the workers spouse82 and children under

the age of 21, or dependant children, even if they are not nationals of a
Member State.83
The second conception of a worker in the Community is a wholly
national one arising on implementation of Community law into national
law and the interpretation thereof by national courts. On the one hand,
certain specific measures guaranteeing transnational rights for workers will
be allied to the Community notion of a worker, as in the case of the Posted
Workers Directive, 96/71,84 based on the Treaty provisions concerning the
free movement of services.85 On the other hand, the vast majority of social
policy measures are primarily concerned with the rights of workers within
Member States and are based on the specific social policy provisions in the
EC Treaty.86 In respect of these measures the question of who is a worker
or an employed person is normally a matter of national law. In addition,
while any social rights for workers contained in these directives must be
extended to the nationals of other Member States, it is for each Member
State, when implementing the directive in question within its own territory,
to determine who are its own nationals87 and whether any non-Community
nationals are legally resident, subject to any directly effective provisions of
Community association agreements with third countries.88
As we have seen in chapter 2, Member States are granted considerable
flexibility when implementing Community directives in the social policy
field. For example, the framework Health and Safety Directive89 and the

81

OJ 1968, L257/2.
The term spouse has been narrowly defined to include married couples but not cohabitees, Case 59/85, Netherlands v Reed [1986] ECR 1283; nor, in the context of the
Communitys Staff Regulations, same-sex couples, Case T264/97, D and Sweden v Council
[1999] ECRSC IA 1 and II1, para 26, and on appeal, Cases C122/99P and 125/99P [2001]
ECR I4139. For discussion, see C McGlynn, A Family Law for the European Union? in J
Shaw (ed) Social Law and Policy in an Evolving European Union (Hart, Oxford, 2000) 22341.
83
Art 11 of Reg 1612/68, OJ 1968, L257/2.
84
OJ 1996, L18/1.
85
Arts 47(2) and 55 EC [ex 57(2) and 66 EEC]. The idea behind the Directive is to facilitate the provision of workers employed in one Member State, the home state, to employers
based in another Member State, the host state, typically through sub-contracting of public or
private sector work programmes.
86
Originally Arts 117122 EEC [now Arts 136145 EC].
87
See Case C369/90, Micheletti v Delegacin del Gobierno en Cantabria [1992] ECR
I4239.
88
Workers rights to free movement and consequential benefits under these agreements are
usually quite limited. See Case C192/89, Sevince v Staatssecretaris van Justitie [1990] ECR
I3461; Case 12/86, Demirel v Stadt Schwbisch Gmnd [1987] ECR 3719. Workers have
been successful in several cases; see Case C18/90, Onem v Kziber [1991] ECR I199; Case
C58/93, Yousfi v Belgium [1994] ECR I1353; and Case C126/95, Hallouzi-Choho [1996]
ECR I4807, all on the EEC-Morocco Co-operation Agreement. For further discussion on the
direct effect of provisions contained in these agreements, see P Craig and G de Brca, EU
Law: Text, Cases and Materials, 2nd edn (OUP, Oxford, 1998) pp 17985.
89
Dir 89/391/EEC, OJ 1989, L183/1.
82

The Evolution and Legal Scope of the Social Charter

123

Working Time Directive90 include all workers within their ambit. In the
case of the framework Directive, a worker is defined in Article 3 as any
person employed by an employer, including trainees and apprentices but
bizarrely, excluding domestic servants. No express room for manoeuvre is
left to the implementing Member State but, in the absence of a Community
definition of a person employed by an employer, it must be implicit that
this is a matter for national law. There is no separate definition of a worker
in the Working Time Directive, although it is derived from the framework
Directive and Article 118a EEC [now 137 EC], which refers to the health
and safety of workers.91 Outside the field of health and safety, Community
social policy directives have tended to limit their scope to employees with
a contract of employment or employment relationship, or, in the case of
the equalities directives, refer only to employment. A standard clause
usually specifies that the precise nature of the contract of employment or
employment relationship is a matter for national law. For example, the
scope of Directive 91/53392 on the right of employees to be informed about
the essential aspects of their contract or employment relationship93 is circumscribed by Article 1(1), which sets out the following definition:
This Directive shall apply to every paid employee having a contract or employment
relationship defined by the law in force in a Member State and/or governed by the
law in a Member State.

Bercusson94 suggests that inclusion of the term employment relationship

implies that the Directives coverage may extend to independent contractors and self-employed workers paid by the employer. In his view:95
The use of the term relationship requires EU law to take cognisance of a multitude of forms of work which never acquire contractual status, but are nonetheless
carried out in the expectation of some form of reciprocal benefit, which may fall
short of the common law concept of contractual consideration.

This interpretation suggests that the Community will ultimately determine

the scope of the employment relationship. Article 6 of the Directive,
however, militates against such a broad interpretation. This sweeping-up
clause states that the Directive shall be without prejudice to national law

90
Dir 93/104/EC concerning certain aspects of the organisation of working time, OJ 1993,
L307/18.
91
Art 137(1) EC now refers to workers health and safety. See also, Dir 92/85/EEC on
the introduction of measures to encourage improvements in the safety and health at work of
pregnant workers and workers who have recently given birth or breastfeeding, OJ 1992,
L348/1; and Dir 94/33/EC on the protection of young people at work, OJ 1993, L216/12.
92
Dir 91/533/EEC on an employers obligation to inform employees of conditions applicable to the contract or employment relationship, OJ 1991, L288/32.
93
Ibid Art 2(1).
94
See B Bercusson, European Labour Law (Butterworths, London, 1996) p 431.
95
Ibid.

124

The Community Social CharterCatalyst For Action II

and practice concerning the form of the contract or employment relationship. Thus, Article 6 creates a hierarchy of norms at the head of which rests
a national conception of the term contract or employment relationship.96
What then is the significance of national law prevailing over Community
law in respect of the interpretation of terms such as worker, employee,
contract of employment or employment relationship in Community
directives? Kleinman and Piachaud assume that employed nationals of
Member States obviously qualify.97 In practice the position is not quite so
straightforward. For example, in certain Member States, such as Italy, civil
servants have public-law status which takes them outside the scope of
employment law, a view recently accepted by the Court when determining the scope of the Acquired Rights Directive.98
Zeijen, in a 1992 study for the Commission,99 considered the definition
of the term contract of employment100 in the Member States and concluded
that:101
The conventional elements in the definition of contract of employment common to
all Member States are: agreement, work performance, length of time, remuneration
and, most importantly, dependency, subordination and control. The latter issues are
the subject of increasingly flexible interpretation by the courts.
In general it appears that the legal concept of contract of employment in continental Member States is broader and more comprehensive than that in Ireland and the
United Kingdom . . .
In the United Kingdom, for instance, one third of those in employmentsuch as
casual workers and temporary workers supplied through an intermediaryis
excluded from statutory employment rights.

This statement is borne out by more recent evidence from the House of
Lords in the UK where, in Carmichael and another v National Power,102 it
96
See further, J Kenner, Statement or Contract?Some Reflections on the EC Employee
Information (Contract or Employment Relationship) Directive after Kampelmann (1999) 28
Industrial Law Journal 205 at 21718.
97
Kleinman and Piachaud, n 52 above at 15.
98
Dir 77/187/EC, OJ 1977, L61/26. See Case C343/98, Collino and Chiappero v Telecom
Italia SpA [2000] ECR I6659, paras 3641.
99
H Zeijen, Part I. The Regulation of Individual Employment Relationships. Reproduced
in Social Europe 4/92 (European Commission, Brussels, 1992). See R Nielsen, European
Labour Law (DJF Publishing, Copenhagen, 2000) p 144.
100
For a fascinating history, see B Veneziani, The Evolution of the Contract of
Employment in B Hepple (ed) The Making of Labour Law in Europe: A Comparative Study
of Nine Countries up to 1945 (Mansell, London & New York, 1987) 3172.
101
Zeijen, n 99 above at 4.
102
[2000] IRLR 43. This narrow interpretation can be contrasted with the definition of
a worker in s 2(1) of the UK Working Time Regulations which define a worker as an individual with a contract of employment or any other contract . . . to do or perform personally
any work or services for another party to the contract whose status is not by virtue of the
contract that of a client or customer of any profession or business undertaking carried on by
the individualSI 1998, No 1833, now revised by SI 1999, No 3372. Available at:
<http://www.legislation.hmso.gov.uk/>.

The Evolution and Legal Scope of the Social Charter

125

was held that tour guides who had been appointed with a letter offering
them employment on a casual as required basis did not in fact have a contract of employment because, when oral evidence about their relationship
with the undertaking was taken into account, their case foundered on the
rock of the absence of mutuality, for a contract of employment in British
law requires an irreducible minimum of mutual obligation between
employer and employee.103
These examples illustrate how the Communitys ideal of a Charter of
Fundamental Social Rights of Workers must be measured against the reality
of national and not Community interpretations of key concepts that, in
practice, may exclude the growing numbers of workers with irregular or
atypical contracts. Moreover, even if one accepts Zeijens assessment that
there are certain conventional elements to the employment relationship
across the Member States, specifically a relationship of dependency,
subordination and control, these terms, which seem rather old-fashioned
today, do not easily accommodate the unemployed or retired persons, or
temporary agency workers, or semi-autonomous workers such as
homeworkers and unpaid carers.104 It is in this context that we should now
examine the Social Charter in more detail after having first considered its
legal status and modus operandi.

(2) The Social Charter, Soft Law and Subsidiarity

The Social Charter will illustrate this leap forward in the social dimension. It will
show our political will to build a social Europe, in accordance with the essential
subsidiarity and also variety.
(Jacques Delors, 8 December 1989)105

With this ringing declaration, echoing Mao,106 Delors signified his approval
for the outcome of the Strasbourg European Council. Delors words signified the two-dimensional nature of the Social Charter. On the one hand, an
almost metaphysical leap forward could be achieved through the projection of the political aspirations contained within and contingent upon
the concept of a Social Charter. The adoption of a Charter and an
103
Ibid per Lord Irvine of Lairg LC at paras 1820. See also, Nethermere (St Neots) Ltd v
Gardiner [1984] IRLR 240, Court of Appeal, per Stephenson LJ.
104
See Kleinman and Piachaud, n 52 above at 15. For a critique of the limitations of the
concept of work in the Community, see I Moebius and E Szyszczak, Of Raising Pigs and
Children (1998) 18 Yearbook of European Law 125.
105
This quotation is placed at the front of the text of the Social Charter reproduced by the
Commission in Social Europe 1/90, p 45.
106
The disastrous Great Leap Forward of 1958, a policy of forced industrialisation that led
to economic ruin, followed Maos Leap Forward of 1956. See A Bullock and O Stallybrass
(eds) The Fontana Dictionary of Modern Thought (Fontana, London, 1977) p 270.

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The Community Social CharterCatalyst For Action II

accompanying Action Programme was intended to create a dynamism that

would engender hope and optimism for the 1990s,107 to contrast with the
disappointment and pessimism of the 1980s. Social policy would be propelled forward notwithstanding the inherent limitations of the Social
Charter in both legal form and substantive content. On the other hand,
there was the hard reality of a diluted text that, stripped naked of any pretensions of social citizenship, was perceived by many as, at best, a reference point for a step-by-step programme of limited workers rights tied to
internal market goals, drawing upon, wherever possible, an elastic interpretation of Article 118a EEC as a basis for legislation oriented towards
workers health and safety and the working environment.
For those seeking to utilise the Charter to build a Social Europe its
formal limitations as a non-binding solemn declaration were compounded
by the fact that, at the time of its adoption, it was subject to the vigorous
opposition of the UK whose consent was needed in most areas of social
policy legislation. For Vogel-Polsky, the Strasbourg European Council was
a bitter failure108 and served to put non-decision in concrete form.109
Indeed, the Charter might be regarded as too weak even to be counted as
an example of indicative soft law. Hence, the Commission has recognised
the limitations of the Charter, at least when it is considered in isolation:110
The Charter, as a European act, merely states and notes the rights which were the
subject of deliberations in the European Council in Strasbourg in December 1989.
In itself, it has no effect on the existing legal situation.

This statement is transparent but it leaves an important question open. Does

the Charter, although it is not legally binding in itself, still have legal consequences? In order to answer this question we need to explore the concept
of soft law.
Community lawyers have drawn from the conceptualisation of soft law
in the sphere of public international law. A first point of reference is the
Vienna Convention on the Law of the Treaties of 23 May 1969.111 The
Convention refers, in Article 2, to an international agreement concluded
between States in written form and governed by international law that is,
under Article 26, binding upon the parties and must be performed by
107
See E Szyszczak, LEspace Sociale Europenne: Reality, Dreams, or Nightmares?
(1990) 33 German Yearbook of International Law 284 at 284. For a pessimistic view, see E
Vogel-Polsky, What Future Is There For A Social Europe After The Strasbourg Summit?
(1990) 19 Industrial Law Journal 65.
108
Vogel-Polsky, ibid at 65.
109
Ibid at 67.
110
These comments are contained in the introduction to the Commissions second annual
report on the application of the Social Charter, COM(92) 562. Emphasis added.
111
This was the date when the Convention was opened for signature: UN Doc A/CONF
39/27 (1969) reproduced at (1969) 63 American Journal of International Law 875. For discussion, see R Baxter, International Law in Her Infinite Variety (1980) 29 International
and Comparative Law Quarterly 549.

The Evolution and Legal Scope of the Social Charter

127

them in good faith.112 This is a very helpful definition of hard law in a

public international law sense, but it leaves open the question of the status
of other informal agreements and what Baxter describes as the infinite
variety of hortatory statements and public declarations issued collectively
by states and emanating from the international bodies that they have established.113 Therefore it is much easier to determine what soft law is not, by
reference to accepted precepts of hard law, than define what it is. The most
that can be said, when considering the concept in public international law,
is that soft laws are norms issued by states, or persons acting on their behalf,
that are of a legal character but are not intended to be legally binding in
themselves. Nonetheless, soft laws have a real existence and a capacity to
create obligations for states and individuals, even though they may not be
enforced by sanctions.114
How then can this concept of soft law be applied in a Community system
that constitutes a new legal order of international law115 and has its own
institutions, its own personality, its own legal capacity and capacity of
representation on the international plane?116 The sui generis nature of
Community law, encapsulated in these early pronouncements from the
Court, brings a new dimension to soft law as a tool for furthering and deepening European integration by building upon and around the legal acquis
without directly creating strict legal obligations.117 Thus, while hard laws in
the form of Treaty provisions or binding regulations and directives create
rules that Member States are bound to comply with, soft laws, whilst being
normative in character, are essentially methods of Community guidance or
rules which create an expectation that the conduct of Member States will be
in conformity with them, but without an accompanying legal obligation.118
However, the hard law/soft law dichotomy is blurred by the fact that
although soft laws, in themselves, have no legally binding force, they may
act as impulses for integration, or provide a basis for judicial interpretation

112

Baxter, ibid at 550.

Ibid at 566.
114
Ibid at 549. See also, O Schachter, The Twilight Existence of Nonbinding International
Agreements (1977) 71 American Journal of International Law 296; and A Aust, The Theory
and Practice of Informal International Instruments (1986) 35 International and Comparative
Law Quarterly 787.
115
Case 26/62, Van Gend en Loos v Nederlande Administratie der Belastingen [1963] ECR
1 at 12.
116
Case 6/64, Costa v ENEL [1964] ECR 585 at 593.
117
See especially, J Kenner, EC Labour Law: the Softly, Softly Approach (1995) 11
International Journal of Comparative Labour Law and International Relations 307; K Wellens
and G Borchardt, Soft Law in European Community Law (1989) 14 European Law Review
267; F Snyder, Soft Law and Institutional Practice in the European Community, EUI Working
Paper LAW No 93/5 (EUI, Florence 1993); and J Klabbers, Informal Instruments before the
European Court of Justice (1994) 31 Common Market Law Review 997.
118
On the hard law/soft law distinction, see Baxter, n 111 above at 565; and Klabbers, ibid
at 999.
113

128 The Community Social CharterCatalyst For Action II

of hard laws, or serve to strengthen national legislation and thereby produce
the desired legal effects.119
By its very nature soft law is multifaceted and serves diverse purposes.
The Community has used informal instruments for a variety of reasons for,
as Snyder explains, soft law is:120
. . . in part a predictable feature of administrative development, in part a comprehensible response to institutional inertia, and in part a questionable attempt to
circumvent or avoid the implications of failures to reach political agreement.

This statement helps us to understand the reasons why the Social Charter
was adopted as a solemn declaration by 11 out of the then 12 Member
States, but where does it fit in the hierarchy of soft laws? To help answer
this question I have identified four distinct groups of soft laws in the field
of social policy:121
(1) Bold statements, usually European Council or joint institutional resolutions or declarations, serving to usher in new periods of social
activism.
(2) Commission and Council recommendations serving either as prompters
to maintain the momentum of existing programmes or, alternatively, as
reminders of the Communitys unfulfilled ambition.
(3) Recommendations, resolutions and memoranda, designed to supplement existing hard law in order to give it maximum effect at national
level, and to serve as a means of focusing the attention of Community
institutions on priority policy areas.
(4) Broad statements of political principle reflecting areas on the fringes
or even outside of existing Community competence where there is no
realistic prospect, nor any clear intention, of bringing forward binding
legislative proposals in the foreseeable future.
As a declaratory statement of principle and aspirational intent issued at the
highest level, the Social Charter falls within my first category of soft laws.
Moreover, the Social Charter and, indeed, the Action Programme, which
also has soft law status, have spawned numerous soft laws that fit within
the other categories outlined above. We will return to some examples of
these soft laws when considering the effectiveness of the Action Programme
in the next chapter. For now it is important to understand the dynamic
nature of the Social Charter as a totemic tool of soft law. There are three
main reasons why the Charter has had this dynamic or reflexive effect.
119
Wellens and Borchardt, n 117 above at 298, and F Snyder, The Effectiveness of
European Community Law: Institutions, Processes, Tools and Techniques (1993) 56 Modern
Law Review 19 at 32.
120
Snyder, Soft Law and Institutional Practice in the European Community, n 117 above at 3.
121
Kenner (1995, International Journal of Comparative Labour Law and Industrial
Relations) n 117 above at 31113.

The Evolution and Legal Scope of the Social Charter

129

First, it is possible to distinguish between the status of formal declarations adopted by an overwhelming majority of the Council, such as the
Social Charter, and weaker minority statements usually intended for the
minutes. Klabbers argues that the Court can rely on such declarations for
interpretation and their influence may be reinforced where the Commission
also expresses the majority sentiments.122 For example, in ex parte Antonissen123 the Court expressed the view that declarations may be used for interpretative purposes where reference is made to the content of the declaration
in the wording of the provision in question.124 The drafters of legislation
arising from the Social Charter have been astute enough to draw upon it
whenever seeking to reinforce an otherwise shaky legal foundation. For
example, the Article 118a EEC directives on Pregnancy and Maternity,
Working Time and Young Workers each refer to the Charter as a source in
the recitals contained in their respective preambles.125
Secondly, while the Charter itself is purely declaratory and places the obligation for its implementation firmly on the Member States,126 it must
be read together with the Commissions Action Programme which had been
prepared pursuant to its right of initiative on the basis that the Charter
should be followed up with urgent binding Community legislation, wherever necessary to achieve its objectives.127 Thus, although the obligation to
implement would remain with the Member States, the parameters of
Community social policy and labour law would be greatly extended through
the adoption of a sound base of minimum provisions.128 Once the European
Council adopted only a solemn declaration among the majority, the
Commission saw no reason to hold back on proposals which were designed
for immediate action and based on existing Treaty commitments. In this way
the Commission, with the support of the European Parliament and the
majority of Member States, was able to draw strength and inspiration from
two separate but related instruments of soft law that together created an
irresistible momentum. In practice, the main role of the Charter has been
its capacity to act as a stimulant for action founded on the basis that
the Member States intended to carry forward their purely political commitments to the extent that they would ultimately have legal consequences.
Such was the dynamism of the Social Charter and the Action Programme
122

Klabbers, n 117 above at 1009.

Case C292/89, R v The Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR
I745.
124
Ibid at 778.
125
Respectively, Dir 92/85/EEC, OJ 1992, L348/1, fifth recital (point 19 of the Charter);
Dir 93/104/EC, OJ 1993, L307/18, fourth recital (points 7, 8 and 19); and Dir 94/33/EC, OJ
1993, L216/12, third recital (points 20 and 22).
126
Point 27. Discussed below.
127
Point 28.
128
Third Report from the Commission on the Application of the Community Charter of
the Fundamental Social Rights of Workers, COM(93) 668 at p 3.
123

130

The Community Social CharterCatalyst For Action II

that, by the end of 1993, each of the legislative initiatives identified in the Programme had been presented by the Commission and the majority of those
requiring legislation had been adopted.129 In fact much of this legislation was
far weaker than originally intended in the Action Programme, whether
adopted as hard or soft law, as will be shown in the next chapter, and the
apparent success of these instruments was to lead the Commission to take
a rather rose-tinted view of the need for further binding Community
legislation.130
Thirdly, the Social Charter provided a platform for the later proposal
to amend the EEC Treaty at Maastricht by revising the social policy provisions and thereby extending the legal base. The adoption of first, the
Agreement on Social Policy with the specific objective of implementing the
Social Charter, and then, Article 136 EC [replacing Article 117 EEC], with
its direct reference to the Charter as a source of fundamental social rights,
has served to constitutionalise the principles behind the Charter within the
bounds of the Treaty.
The status of the Charter is further reinforced by its preamble. There are
16 declaratory recitals in the preamble. Each recital acts as a guide to the
sources of the Charter and the ambitions of its signatories. The importance
of the preamble should not be understated. Fitzpatrick has noted, when discussing the EC Treaty, that the preamble is at the apex of the Communitys
pyramid-like structure.131 It sets out laudable aspirations and hovers above
the norms within it while providing overarching guidance for the Court
to use for the purposes of interpretation of the rights contained therein.132
The central aspirations of the EC Treaty are economic ones and this drives
the whole integration process.133 Fitzpatricks paradigm also applies, by
analogy, to the preamble of the Charter, a point reinforced later by direct
references to the Charter in the Maastricht Protocol and Agreement on
Social Policy134 and the revised Social Chapter negotiated at Amsterdam.135
Thus, while the principal thrust of the Charter is to promote workers rights
in the internal market,136 the preamble also helps to provide an indication
129
See COM(93) 551, Commission Green Paper on European Social Policy, Options for
the Union, p 6.
130
See J Kenner, Citizenship and Fundamental Rights: Reshaping the European Social
Model in J Kenner (ed) Trends in European Social Policy (Dartmouth, Aldershot, 1995) 384
at 38.
131
B Fitzpatrick, Converse Pyramids and the EU Social Constitution in Shaw, n 82 above,
30324 at 3046.
132
Ibid at 305.
133
Ibid at 306.
134
The preamble of the Protocol lists the Member States that wished to continue along the
path laid down by the Charter. The Agreement seeks to implement the Charter in accordance with the Community acquis, also in the preamble.
135
Art 136 EC obliges the Community to have in mind fundamental social rights such as
those contained in the ESC and the Social Charter when pursuing their social policy objectives.
136
See Poiares Maduro, n 2 above at 462.

The Evolution and Legal Scope of the Social Charter

131

of a wider and longer-term ambition to secure fundamental social rights at

Community level.137 In this way the ideal of social citizenship was kept
alive even at a time when the Community was at an impasse on social policy.
In due course this will help us to identify a common thread running from
the Social Charter, continuing through to the Amsterdam Treaty, with its
reference to fundamental social rights in Article 136 EC [ex 117 EEC],
and leading to an overarching soft law declaration in the form of the
Charter of Fundamental Rights of the European Union signed at the Nice
Inter-Governmental Conference on 7 December 2000.138
The preamble of the Charter is indicative of its wider, longer-term ambitions. Particular significance can be derived from the eighth, ninth, fifteenth
and sixteenth recitals. The eighth recital contains a declaration that:139
Whereas, in order to ensure equal treatment, it is important to combat every form
of discrimination including discrimination on the grounds of sex, colour, race, opinions and beliefs and, whereas, in a spirit of solidarity, it is important to combat
social exclusion.

No specific rights listed in the Charter flow from this statement and yet its
significance is twofold. First, the locus of the declaration is society at large.
Neither work nor workers are mentioned. Combating discrimination and
social exclusion is posited as a societal duty and it is implicit that this duty
is to be shared by citizens and states. Second, the statement extended well
beyond the competences of the Community at the time. The principle of
equality has been discussed in chapter 2, with respect, in particular to sex
discrimination under Article 119 EEC [now 141 EC]. Although the principle is recognised as all embracing, its application is selective140 and remains so. In particular, prior to the introduction of Article 13 EC by the
Amsterdam Treaty, there was no reference in the Treaties to discrimination
on the grounds of racial or ethnic origin, religion or belief, disability, age
or sexual orientation. Although the text of the eighth recital does not
exactly match the listing that emerged later in Article 13 EC, its portent lies
with the fact that it is non-exhaustive in character. Indeed a general clause
concerning disabled persons is included in point 26 of the Charter notwithstanding the lack of a direct reference in the preamble. As such, even as a
soft law source derived from the preamble, this statement has served as an
impulse for further and deeper integration of Community social laws. The
extent to which this outcome may have been intended at the time is a moot
137

16th recital.
OJ 2000, C364/1. The Charter of Fundamental Rights Charter is a non-binding solemn
proclamation although, unlike the Social Charter, it has received unanimous support and is
inter-institutional. For full discussion, see ch 12.
139
Emphasis added.
140
See G de Brca, The Role of Equality in European Law in A Dashwood and S OLeary
(eds) The Principle of Equal Treatment in EC Law (Sweet & Maxwell, London, 1997) 1334.
138

132

The Community Social CharterCatalyst For Action II

point, but the Communitys leaders were, at the very least, prepared to leave
the door open for a wider application of the equality principle in the future.
In the meantime, however, the Commission were not prepared to put
forward a legislative proposal in the Action Programme.141
The ninth recital proclaims:
Whereas inspiration should be drawn from the Conventions of the International
Labour Organisation and from the European Social Charter of the Council of
Europe.

The perfunctory nature of this statement belies its import. While other
declarations in the preamble have the EC Treaty as their point of reference, this recital provides a universal source for both the interpretation of
Community law and the initiation of new binding or non-binding legislative proposals. Moreover, it is a source founded on a broad conception of
freestanding social rights. Labour is not a commodity is the first principle
of the ILO.142 It is therefore a prerequisite of international labour standards
that the law of the market must not be the sole regulator of the employment relationship.143 Therefore, this direct reference to the conventions of
the ILO and the ESC adds a gloss to the social dimension that takes it,
at least potentially, beyond the realm of market integration. In this sense
the preamble acts as pre-law144 or even pre-pre-law if one sees law as a
continuum from an aspiration followed by a tentative proposal, further
repeated declarations and, ultimately, an evolution into a firm proposition
once there is sufficient political momentum for binding law in a widening horizon of social rights. For example, following the collapse of the
Commissions earlier attempts to introduce legislation to protect atypical
workers,145 a new proposal was put forward to act in relation to part-time
work as a first step.146 The Commissions decision was undoubtedly influenced by the adoption of ILO Convention No 175 on Part-time Work in
141
Para 5 of the introduction states: While the Commission is not making a proposal in
respect of discrimination on the grounds of race, colour or religion, it none the less stresses
the need for such practices to be eradicated, particularly in the workplace and in access to
employment, through appropriate action by Member States and by the two sides of industry.
Social Europe 1/90, p 54.
142
The Declaration of Philadelphia, 1944. See Constitution of the International Labour
Organisation (ILO, Geneva, 1992) p 22.
143
See P OHiggins, Labour is not a Commodityan Irish Contribution to International
Labour Law (1997) 26 Industrial Law Journal 225 at 226. OHiggins traces the origins of
this declaration back to an address on Work and the Workman by the Irish economist, Dr
John Kells Ingram, to the British Trades Union Congress in 1880.
144
See M Rodrguez-Pinero and E Casas, In Support of a European Social Constitution
in P Davies, A Lyon-Caen, S Sciarra and S Simitis (eds) European Community Labour Law:
Principles and Perspectives (Clarendon Press, Oxford, 1996) 2348 at 36.
145
This proposal was based on a specific legislative commitment in the Action Programme
to introduce a directive on contracts and employment relationships other than full-time openended contracts. Social Europe 1/90, p 52.
146
COM(94) 33 at 31.

The Evolution and Legal Scope of the Social Charter

133

1994.147 The Convention seeks, inter alia, to guarantee equivalent rights

between part-time workers and comparable full-time workers. This broad
guarantee was to form the basis for the negotiation and drafting of a Framework Agreement between the social partners on 6 June 1997 leading to the
adoption of Directive 97/81 on part-time work.148
The fifteenth recital is the most important indicator of the legal scope of
the Charter and, in a wider sense, of the shape of things to come. In this
recital it is declared that:149
Whereas, by virtue of the principle of subsidiarity, responsibility for the initiatives
to be taken with regard to the implementation of these social rights lies with the
Member States or their constituent parts and, within the limits of its powers, within
the European Community; whereas such implementation may take the form of laws,
collective agreements or existing practices at the various appropriate levels and
whereas it requires in many spheres the active involvement of the two sides of
industry.

This early reference to subsidiarity,150 in advance of the formal introduction of Article 3b [now 5] EC, is reinforced in Title II of the Charter, the
horizontal provisions, where it is stated that:151
It is more particularly the responsibility of the Member States, in accordance with
national practices, notably through legislative measures or collective agreements, to
guarantee the fundamental social rights in this Charter and to implement the social
measures indispensable to the smooth operation of the internal market as part of a
strategy of economic and social cohesion.

These references to subsidiarity and the attribution of powers and responsibilities between the Community and the Member States differ significantly
in emphasis from the first draft where the Commission sought to commit
the Member States to:152
. . . take such steps as are appropriate and to mobilize all the resources that may be
necessary in order to guarantee the fundamental social rights in this Charter and
full implementation of the social measures indispensable to the efficient operation
of the internal market . . . This shall be done through legislative measures, or by
encouraging both sides of industry to conclude collective agreements at national,
regional or company level.
147
The text of the Convention and the accompanying Recommendation are reproduced in
(1994) 10 International Journal of Comparative Labour Law and Industrial Relations 249
and 254.
148
Dir 97/81/EC concerning the Framework Agreement on part-time work agreed by
UNICE, CEEP and the ETUC, OJ 1998, L14/9.
149
Emphasis added.
150
For an analysis of the origins and application of subsidiarity, see N Emiliou, Subsidiarity:
an effective barrier against the enterprises of ambition? (1992) 17 European Law Review
383.
151
Point 27.
152
COM(89) 471, draft point 27.

134 The Community Social CharterCatalyst For Action II

As Shaw explains, the emphasis had switched from centralised to decentralised implementation:153
For it is not that the Member States are being required to implement a catalogue
of binding social rights which would act as legal guarantees in the case of nonimplementation. Rather it is the Member States themselves who are being asked to
give these so-called rights the form of law.

On the basis of this formulation of subsidiarity, legal competence ultimately

rests with the Member States.154 By contrast the Commissions accompanying Action Programme defines subsidiarity as meaning that the
Community acts when the set of objectives can be reached more effectively
at this level than at that of the Member States.155 Therefore, in the Commissions view, the Community reserves a residual power to act to secure
the effectiveness of the objectives in the Charter although it proceeds to
limit its proposals to those areas where Community legislation seems
necessary to achieve the social dimension of the internal market.156 This
emphasis on effectiveness also chimes with the definition of subsidiarity
in the European Parliaments draft European Union Treaty of 1984.157
Significantly, the Commissions view also equates more closely with the
definition that was to eventually emerge in the second paragraph of Article
3b [now 5] EC where it is stated that:
In areas which do not fall within its exclusive competence, the Community shall
take action, in accordance with the principle of subsidiarity, only if and so far as
the objectives of the proposed action cannot be sufficiently achieved by the Member
States and can therefore, by reason of the scale or effects of the proposed action,
be better achieved by the Community.

We will return to this definition of subsidiarity in chapter 6, when the principle will be assessed in the context of the Treaty on European Union and
the Protocol and Agreement on Social Policy. For now it is important to
note that, when the Social Charter was launched, subsidiarity was being
applied in the area of Community social policy in advance of its formal
incorporation into the EC Treaty. This only serves to exemplify the extent
to which the allocation of competences between the Community and
Member States has, in the sphere of social policy, erred on the side of the
153
J Shaw, The Scope and Content of European Community Social Law: A Review of
Progress and a Bibliographical Note (1992) 14 Journal of Social Welfare and Family Law 71
at 745.
154
See Hepple (1990) Modern Law Review n 34 above at 646.
155
Introduction, para 3. Social Europe 1/90, p 54.
156
Ibid para 5. On the distinction between legal competence and effectiveness, see Hepple
(1990, Modern Law Review) n 34 above at 64647.
157
OJ 1984, C77/53. Art 12(2) states that: The Union shall only act to carry out those
tasks which may be more effectively undertaken in common than by Member States acting
separately, in particular those whose dimensions and effect extend beyond national frontiers.

The Evolution and Legal Scope of the Social Charter

135

Member States. As Hepple explains, the emphasis in the Action Programme

on both legal competence and effectiveness has meant that subsidiarity
adds nothing of substance to the well-established legal bases of Community competence in the social field.158 Rather, its substance, in the context
of the Charter, is political not legal.159
Finally, we can complete our analysis of the preamble by considering the
sixteenth recital, which decrees that:
Whereas the solemn proclamation of fundamental social rights at European
Community level may not, when implemented, provide grounds for any retrogression compared with the situation currently existing in each Member State.

This notion of non-retrogression was, on the face of it, a mere reinforcement of the existing approach to Community social legislation at the time.
A standard clause can be found in the legislation of the 1970s and 80s
allowing Member States to introduce provisions that are more favourable
to employees.160 There is, however, no explicit requirement in this legislation to maintain existing employment standards or to prohibit retrogression. After the adoption of the Social Charter there has been a change of
emphasis in the language used in directives. Upward harmonisation is
encouraged but retrogression is explicitly forbidden. For example, the
Pregnancy and Maternity Directive161 contains a minimum requirement
to provide a guarantee of at least 14 weeks leave before or after confinement.162 This standard was set below the level pertaining in the majority of
the Member States at the time. There was therefore little incentive for the
states in question to introduce more favourable provisions. Indeed there
was an underlying concern that setting such a low threshold for social policy
rights might encourage a reduction in standards leading to a lowest
common denominator approach to the implementation of Community
labour laws. In order to avoid that scenario, Article 1(3) was inserted into
the Directive to provide that:
This Directive may not have the effect of reducing the level of protection afforded
to pregnant workers, workers who have recently given birth or who are breastfeeding as compared with the situation which exists in each Member State on the
date on which this Directive is adopted.

Hence the importance of non-retrogression is that it acts as a bulwark

against the deregulation of labour law. The reference to non-retrogression

158

Hepple (1990, Modern Law Review) n 34 above at 647.

Ibid.
160
For example, Art 5 of Dir 75/129/EEC on collective redundancies, OJ 1975, L48/29;
Art 7(1) of Dir 77/187/EEC on transfers of undertakings, OJ 1977, L61/26; and Art 9 of Dir
80/987/EEC on insolvency protection, OJ 1980, L283/23.
161
Dir 92/85/EEC, OJ 1992, L348/1.
162
Ibid. Art 8(1).
159

136 The Community Social CharterCatalyst For Action II

in the preamble of the Charter also reinforces the clause in Article 118a(3)
EEC [now 137(5) EC] that allows Member States to maintain or introduce
more stringent measures for the protection of working conditions compatible with the Treaty. Non-retrogression can be implied from Article
118a(3) EEC but the preamble has ensured that it has been made explicit
in later directives stemming from the Action Programme. Moreover, at the
time of the Social Charter, the introduction of non-retrogression served as
a warning shot to states, such as the UK, that were pursuing or contemplating the path of deregulation. The concept of non-retrogression is just
as relevant today as the Community prepares for the next enlargement eastwards for, as new Member States with lower labour costs and, in some
cases, lower labour standards, join the European Union, the pressure to
deregulate at national level and even to dilute Community legislation will
surely grow.

III THE CHARTERS FUNDAMENTAL SOCIAL RIGHTS

Having considered the legal status of the Charter and the framework provided by the preamble, let us now turn to the substance of the 26 vertical
rights listed in Title I of the Charter and the related proposals in the
Commissions accompanying Action Programme. Although the Action
Programme was launched immediately before the formal adoption of the
Charter, it was justified by virtue of the horizontal implementing provisions in Title II, points 2730. While point 27 places responsibility on the
Member States to implement the Charter and guarantee the listed social
rights, as discussed above, point 28 simultaneously invites the Commission
to submit initiatives that fall within its powers as soon as possible. These
initiatives are to be submitted with a view to the adoption of legal instruments for the effective implementation of those rights coming within the
Communitys areas of competence. In addition, by virtue of points 29 and
30, the Commission is obliged to issue an annual report on the application
of the Charter to be forwarded to the European Council, the European
Parliament and the Economic and Social Committee. Hence, these
horizontal points, while they preserve a degree of autonomy for the Member
States, have created a momentum for implementation and monitoring of
the Charter and a foundation for successive action programmes.
Title I of the Charter contains thirteen general headings as follows:
freedom of movement (points 13);
employment and remuneration (points 46);
improvement of living and working conditions (points 79);
social protection (point 10);
freedom of association and collective bargaining (points 1114);

The Charters Fundamental Social Rights 137

vocational training (point 15);
equal treatment for men and women (point 16);
information, consultation and participation of workers (points 1718);
health protection and safety at the workplace (point 19);
protection of children and adolescents (points 2023);
elderly persons (points 2425);
disabled persons (point 26).
This enumeration is drawn from both Community and international law
sources of workers rights, discussed below (sections 12) and a small
residue of the Commissions original social citizenship agenda in the form
of fundamental social rights of persons in points 10 and 2426 (section 3).

(1) Fundamental Social Rights of WorkersCommunity Sources

From the outset priority is given to the Community worker as a market
citizen.163 Points 1 and 2, drawn from Articles 3948 EC [ex 4858 EEC],
set out the basic rights of workers to free movement and equal treatment
in occupation and profession. Point 3 declares that freedom of movement
shall also imply harmonisation of conditions of residence, particularly those
concerning family reunification; elimination of obstacles arising from the
non-recognition of diplomas or equivalent occupational qualifications; and
improvement of the living and working conditions of frontier workers. An
additional clause in the Commissions draft, referring to equal treatment in
all fields, including social and tax advantages, was deleted from the final
text.164 By way of new initiatives, the Commission, in the Action
Programme, proposed the establishment of an employment observatory to
integrate employment information systems in the Community and other
action targeted at employment creation.165 It is therefore apparent that,
while the principal free movement rights were targeted at the completion
of the internal market, there were the also the first tentative signs of what
163
See M Everson, The Legacy of the Market Citizen in Shaw and More, n 48 above,
7390.
164
COM(89) 248, point 2 of the first draft.
165
Social Europe 1/90, p 57. The first meeting of the network of employment coordinators (NEC) was held on 6 April 1990. The European system of documentation on
employment (Sysdem) was launched in October 1989. The Mutual Information System on
Employment Policies (MISEP) was swiftly established and reports periodically. NEC, Sysdem
and MISEP, together, form the observatory and documentation system on employment.
Action Programmes on employment creation were established for specific target groups: ERGO
(long-term unemployed); LEDA (local employment); and SPEC (support programme for
employment creation). The European Social Fund (ESF) Regulation was amended to bring the
ESF into line with the employment creation agenda, Reg 2084/93/EEC, OJ 1993, L193/39.
Finally, the European system for the clearance of vacancies and applications for employment
(SEDOC) was updated through the adoption of Reg 2434/92/EEC, OJ 1992, L245/1.

138 The Community Social CharterCatalyst For Action II

would later emerge as a fully-fledged Employment Title.166 The significance
here is that this new activity was derived directly from the preamble of the
Charter which states that employment development and creation must be
given first priority167 in the completion of the internal market.
In a separate section of the Action Programme on free movement there
were several innovative proposals.168 For example, the Commission proposed to extend Regulation 1408/71169 concerning the co-ordination of
social security to other categories of persons such as public sector workers,
who do not have worker status in certain Member States,170 students, and
persons who are not economically active. The Commission also proposed
a measure to protect the rights of workers who are sent to another Member
State to perform a contract for services on behalf of their employer. It is
worth noting that this proposal was proceeded with even though a reference to such protection in the draft was excised from the final text of the
Charter.171 This idea was to provide the foundation for the Directive on
Posted Workers.172 Other innovations included a Community instrument to
introduce a labour clause into public contracts173 and a Communication
concerning access to services for frontier workers.174
Point 7 on the improvement of living and working conditions begins with
the following declaration:175
The completion of the internal market must lead to an improvement in the living
and working conditions of workers in the Community.

Following on from this imperative, the Charter makes specific reference in

points 79 to the need for approximation of these conditions while the
improvement is being maintained. Both elements are derived from Article
117 and 118 EEC [now 136 and 140 EC].
First, points 7 and 8 refer to the need to act in respect of the duration
and organisation of working time including rights to a weekly rest
period and annual paid leave. The Commission included a proposal for a
directive on the adaptation of working time in the Action Programme.176
166

Now Arts 125130 EC, added by the Treaty of Amsterdam. See further, ch 11.
Fourth recital.
168
Social Europe 1/90, pp 613.
169
OJ 1971, L149/2. The Commission proposal was published in OJ 1992, C325/1, and
led to the eventual revision of Reg 1408/71 by Reg 118/97/EC, OJ 1997, L28/1.
170
See Case C343/98, Collino and Chiappero v Telecom Italia SpA [2000] ECR I6659,
paras 3641.
171
COM(89) 248, point 3 of the draft Charter. For discussion, see Bercusson (1990, Modern
Law Review) n 34 above, at 62931. The proposal was published in COM(91) 230, OJ 1991,
C225/6.
172
Dir 96/71/EC, OJ 1996, L18/1.
173
Subsumed within Dir 96/71, ibid.
174
COM(90) 561.
175
Emphasis added.
176
Social Europe 1/90, pp 601. This was swiftly published in COM(90) 317; followed by
an amended proposal, COM(91) 130; OJ 1991, C124/8; leading to the eventual adoption of
Dir 93/104/EC, OJ 1993, L307/18.
167

The Charters Fundamental Social Rights 139

The health protection of workers was given as a secondary reason for this
proposal.
Secondly, point 7 also makes reference to forms of employment other
than open-ended contracts, such as fixed-term contracts, part-time working,
temporary work and seasonal work. The Action Programme contained a
proposal to legislate in this area with a single measure linked to the need
to prevent the distortion of competition arising from the growth in atypical forms of employment.177 In practice, the Commission was prompted to
launch three separate proposals on atypical work178 by concerns expressed
in the European Parliament about discrimination against predominantly
female part-time, temporary and fixed-term workers.179 While initially
unsuccessful, this commitment was carried over to later action programmes
and ultimately led to the adoption of Directives on Part-time and
Fixed-Term Work.180
Thirdly, the second paragraph of point 7 identifies the need to further
develop procedures for collective redundancies, in particular those regarding bankruptcies. This was followed-up with a firm proposal in the Action
Programme for the revision of the Collective Redundancies Directive181
leading, in turn, to the adoption of an amended Directive.182 Fourthly, point
9 declares that the conditions of employment of every worker shall be stipulated in law, a collective agreement or a contract of employment, according to the arrangements applying in each country. This was backed up by
a stronger proposal in the Action Programme for a directive that would
place a duty on employers to provide employees with a means of proving
the existence of a contract of employment or employment relationship.183
Ultimately, this would lead to the adoption of Directive 91/533 on
Employee Information (Contract or Employment Relationship),184 which
more closely resembled the original concept.
In addition to these legislative proposals, the Commission, drawing from
language in the preamble, recommended that a non-binding memorandum
should be issued on the social integration of migrants from nonmember countries.185 The memorandum would lay stress on the quality of
177
Social Europe 1/90, p 59. Oddly, this appears under the separate heading of
Employment and Remuneration.
178
COM(90) 228, OJ 1990, C 224/4. Discussed on pp 823 above.
179
See, for example, the European Parliaments Resolution on an initiative aimed at a
proposal for a directive on atypical employment contracts and terms of employment, OJ
1990, C231/32.
180
Respectively, Dir 97/81/EC, OJ 1998, L14/9, amended by Dir 98/23/EC, OJ L131/10;
and Dir 99/70/EC, OJ 1999, L175/43.
181
Social Europe 1/90, p 60. Dir 75/129/EEC, OJ 1975, L48/29. For the proposals, see
COM(91) 292, OJ 1991, C310/5; and COM(92) 127, OJ 1992, C117/10.
182
Dir 92/56/EEC, OJ 1992, L245/3; now consolidated in Dir 98/59/EC, OJ 1998, L225/16.
183
COM(90) 563; OJ 1991, C24/3.
184
OJ 1991, L288/32.
185
Social Europe 1/90, p 61. The Memorandum was adopted by the Commission in 1991,
SEC(91) 1855.

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The Community Social CharterCatalyst For Action II

administrative and social services afforded to migrants, especially in fields

such as education and housing. Hence, this was only a minimalist response
to the call in the preamble for equal treatment of nationals of non-member
countries and no attempt was made to test the scope of, for example, the
general purposes legal base in Article 308 EC [ex 235 EEC]. This Memorandum can, however, be seen as a foundation for the eventual inclusion of
a legislative base in Article 137(3) EC for measures concerning the conditions of employment for third country nationals legally residing in Community territory. This legal base is subject to unanimity in the Council. No
such legislative proposals have been forthcoming.
The Charters provisions concerning equal treatment for men and women
appear unremarkable at first sight. Point 16 states that equal treatment
must be assured. There is no clear statement as to the means to be developed to achieve this objective beyond implementation of the principle
of equality. This is, perhaps, a somewhat obtuse reference to the lack of
progress towards achieving substantive equality notwithstanding the application of equal pay under Article 119 EEC [now 141 EC] and the adoption of the sex equality directives. The first proposal under this heading in
the Action Programme was for a Third Community Action Programme on
equal opportunities for women and men (19911995).186 The Programme
was intended to be part of an overall integrated approach allowing the
policies on equality to be given full effect187 and took, as its starting point,
the assumption that implementation of the law cannot alone secure the de
facto equality of opportunity.188 What was required was specific action
aimed at improving the situation of women in practice.189 This marked the
beginning of an important policy shift towards a mainstreaming of gender
equality policies throughout the Communitys activities and, at the national
level, renewed encouragement for equal opportunities policies and positive
action.
Separate from this programmatic activity, further legislative possibilities
can be drawn from an oblique reference in point 16 of the Charter to the
need to develop measures enabling men and women to reconcile their occupational and family obligations. In the Action Programme the Commission
used this statement as a springboard for its family-friendly agenda by
proposing a recommendation on childcare, eventually adopted by the
Council.190 This, in turn, can be linked directly to revived proposals on
186
Proposed in COM(90) 449 and adopted as a Council Resolution on 21 May 1991, OJ
1991, C142/1.
187
Third Commission Report on the Application of the Community Charter of the
Fundamental Social Rights of Workers, COM(93) 668, p 14.
188
COM(90) 449. Introduction, para 2.
189
Ibid.
190
Recommendation 92/241/EEC, OJ 1992, L123/16. For the Commission proposal, see
COM(91) 233, OJ 1991, C242/3.

The Charters Fundamental Social Rights 141

maternity and paternity leave, leading most immediately to the Pregnancy
and Maternity Directive191 and, in later action programmes,192 a framework
proposal on the reconciliation of family and professional life leading,
ultimately, to the adoption of the Parental Leave Directive.193
Points 17 and 18 of the Charter, on information, consultation and participation for workers, seek to develop worker involvement along appropriate lines taking account of the practices in force in the various Member
States. This concerned especially companies or groups of companies based
in two or more Member States. In the Action Programme, the Commission
applied this commitment by seeking to revamp its ill-fated Vredeling proposal of the 1980s concerning worker involvement in transnational undertakings.194 Following publication of the Commissions proposal in 1990,195
an updated measure was eventually adopted as the European Works
Council Directive,196 the first binding piece of legislation issued under the
Maastricht Agreement on Social Policy. There was also a separate proposal in the Action Programme, not directly referred to in the Charter, for
a Community instrument on equity-sharing and financial participation by
workers.197 Sounding the mantra for what we would, several years later,
comprehend as the language of the third way, the Commission ambitiously
suggested that employee participation in productive capital formation could
be a device for a fairer distribution of wealth and act as a means for attaining an adequate level of non-inflationary growth.198 This proposal eventually emerged in the form of a non-binding Recommendation concerning the
promotion of participation by employed persons in profits and enterprise
results (including equity participation).199
Point 19 provides that every worker must enjoy satisfactory health and
safety conditions in his working environment. It was envisaged that appropriate measures would be taken to harmonise conditions in this area while
maintaining the improvements made. In practice, the introduction of this
191
Dir 92/85/EEC, OJ 1992, L348/1. The original proposals can be found in COM(90)
406, OJ 1990, C281/3; and COM(90) 692, OJ 1991, C25/9. A separate proposal for a recommendation on a code of good conduct on pregnancy and maternity was not progressed.
192
Medium Term Social Action Programme, 19951997, COM(95) 134, p 19.
193
Adopted, following the agreement of the social partners of 14 Dec 1995, as
Dir 96/34/EC, OJ 1996, L145/4, and later amended by Dir 97/75/EC, OJ 1998, L10/24. The
Commission had originally attempted to launch a directive in the 1980s, see COM(83) 636,
OJ 1983, C333/6; and COM(84) 631, OJ 1984, C316/7.
194
Social Europe 1/90, p 66. The Vredeling proposal on procedures for informing and
consulting the employees of undertakings with complex structures, in particular transnational
undertakings, OJ 1980, C297/3. See also, the Richard proposal, OJ 1983, C217/3.
195
COM(90) 581, OJ 1991, C39/10; COM(91) 345, OJ 1991, C336/11.
196
Dir 94/45/EC, OJ L254/64, as amended by Dir 97/74/EC, OJ 1998, L10/20. For the proposal, see COM(94) 134, OJ 1994, C135/8, as revised by COM(94) 228, OJ 1994, C199/10.
197
Social Europe 1/90, pp 667.
198
Ibid p 66.
199
Recommendation 92/443/EEC, OJ 1992, L245/53. For the Commission proposal, see
COM(91) 259, OJ 1991, C245/12.

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The Community Social CharterCatalyst For Action II

rights guarantee served to reinforce the second health and safety action
programme that was already underway.200 No fewer than 12 of the legislative proposals, some 25 per cent of the total measures proposed, were
put forward under this heading in the Action Programme.201 This bias
undoubtedly reflected both the potential of Article 118a EEC [now 137 EC]
and the dextrous nature of the framework Directive. Seven of the proposals were strictly sectoral, while the remainder concerned such matters as,
inter alia: safety and health signs; a system of specific information for
workers exposed to certain dangerous chemical agents; protection for
workers exposed to risks caused by physical agents; and the establishment
of a safety, hygiene and health agency.202 While this package represented a
significant gearing up of an existing legislative programme, it also highlighted the paramount importance of the health and safety objective in this
period and beyond.

(2) Fundamental Social Rights of WorkersInternational Law Sources

Several of the rights in the Charter can be traced directly to ILO conventions and the ESC. In this grouping we find rights at the very fringes of
Treaty competence both at the time of the SEA and also today. In particular, these rights can be found under the headings on employment and remuneration;203 freedom of association and collective bargaining;204 social
protection;205 and the protection of children and adolescents.206 Not surprisingly, as the rights under these headings fall mainly within the bounds
of national competence, the Action Programme was less ambitious in these
areas.
For example, in the first of these areas, the section on employment and
remuneration, the principal source is Article 4(1) ESC, which recognises
the right of workers to a remuneration such as will give them and their
families a decent standard of living. In the Action Programme, however,
the Commission emphasised that subsidiarity would be at the fore when
considering action to guarantee these rights and therefore both responsibility and initiative would lie mainly with the Member States.207 Looking
in a little more detail at the substantive rights to employment and remuneration we find that point 4 is relatively straightforward, providing for a
200
Council Resolution on safety, hygiene and health at work of 21 Dec 1987, OJ 1988,
C28/1. See also, the Commission Communication on its action programme, OJ 1988, C28/2.
201
Social Europe 1/90, pp 703.
202
Ibid.
203
Points 46.
204
Points 1114.
205
Point 10.
206
Points 2023.
207
Social Europe 1/90, p 58.

The Charters Fundamental Social Rights 143

right for every individual to be free to choose and engage in an occupation
according to the regulations governing each occupation. This is an uncontroversial statement and should be read as a stand-alone provision demanding no specific proposals for action at national level although further
implementation as part of the right of establishment under Article 43 EC
[ex 52 EEC] is required. Point 6, enabling every individual to have access
to public placement services free of charge, is also self-executing. Point 5,
however, stands out by forthrightly proclaiming that all employment shall
be fairly remunerated. In order to determine the scope of this apparently
far-reaching right, the Charter identifies three steps to be taken to this end
in accordance with the arrangements applying in each country:208
workers shall be assured of an equitable wage, i.e. a wage sufficient to
enable them to have a decent standard of living;
workers subject to terms of employment other than an open-ended fulltime contract shall benefit from an equitable reference wage;
wages may be withheld, seized or transferred only in accordance with
national law; such provisions should entail measures enabling the worker
concerned to continue to enjoy the necessary means of subsistence for
him or herself and his or her family.
The Commissions response in the Action Programme was extremely cautious. No attempt was made to propose legislation, perhaps based on Article
94 EC [ex 100 EEC], to establish a reference or minimum wage, or a system
for evaluating and setting of wages at Community level, on the grounds
that such a step would promote fair competition, combat social dumping
and contribute to the functioning of the common market. Instead the
Commission unequivocally stated that wage setting was a matter for the
Member States and the two sides of industry alone.209 Moreover, it was
not the task of the Community to fix a decent reference wage because such a
concept corresponded to different criteria from one country of the
Community to another.210 This was somewhat of a climb-down by the
Commission because the original draft of the Charter had referred specifically
to the right to a decent wage consistent with the right in Article 5 ESC.211
Meekly, the Commission proposed to assert its views by issuing a
non-binding opinion on the possible means by which an equitable wage
would be guaranteed to one and all.212 The Commissions caution was
understandable given the emphasis in the Charter on subsidiarity and
the accompanying obligation in point 28 to ensure that proposals for
initiatives came within the Communitys competence. In the event, the
208
209
210
211
212

Point 5, para 2.
Social Europe 1/90, p 59.
Ibid.
On this point, see Bercusson (1990, Modern Law Review) n 34 above at 631.
Social Europe 1/90, pp 589.

144 The Community Social CharterCatalyst For Action II

Commission issued its Opinion on 1 September 1993.213 No further concrete
measures have been taken to activate the right to an equitable wage at
Community-level. Indeed the extension of the social policy provisions at
Maastricht and Amsterdam has only served, paradoxically, to constrain the
Communitys competence in this area by excluding pay from the scope of
legislative provisions under Article 137 EC [ex 2 of the Agreement on Social
Policy]214 along with the right of association, the right to strike and the right
to impose lock-outs, broadly corresponding with the second heading in this
grouping, freedom of association and collective bargaining in points 1114.
Point 11 of the Charter recognises both the positive and negative right
of association for employers and workers consistent with Article 11
ECHR215 and the case law of the Strasbourg Court.216 Under the ECHR,
the right of association is exercisable as a means of defending the economic
and social interests of both groups. In a similar vein to Article 11 ECHR,
however, point 14 of the Charter leaves it to the internal order of the
Member States to determine under which conditions and to what extent the
rights on freedom of association and collective bargaining in points 1113
apply to the armed forces, the police and the civil service.217
Further, by virtue of the first paragraph of point 12, both employers and
workers organisations shall have the right to negotiate and conclude collective agreements under the conditions laid down by national legislation
and practice. This is consistent with the right to organise and bargain collectively in Articles 5 and 6 ESC. Does Article 6 ESC, read in conjunction
with the Charter, Article 11 ECHR, and the related international instruments, provide a sufficient basis to recognise the right to collective bargaining on pay and other conditions of employment as a fundamental right
that should be guaranteed by the Court? This was the question posed by
the Commission in its submission in Albany International.218 AG Jacobs, in
213

COM(93) 388.
This exclusion is contained within Art 137(6) EC [ex 2(6) of the Agreement].
215
Art 11(1) ECHR declares that: Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right to form and join trade unions
for the protection of his interests. The right to form and join trade unions is also recognised
by Art 5 ESC; ILO Convention Nos 87 and 98; Art 22 of the UN International Covenant on
Civil and Political Rights; and Art 8 of the UN International Covenant on Economic, Social
and Cultural Rights.
216
In other words, the right to join or not to join a trade union. See Sigurjonnson v Iceland,
judgment of 30 June 1993, Series A No 264; Young, James and Webster, judgment of
13 August 1981, Series A No 44.
217
Art 11(2) ECHR provides that: No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary in a democratic society in
the interests of national security or public safety, for the prevention of disorder or crime, for
the protection of health or morals or for the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the State.
218
Case C67/96, Albany International BV v Stichting Bedrijfspensioenfonds
Textielindustrie [1999] ECR I5751.
214

The Charters Fundamental Social Rights 145

a comprehensive opinion, was not prepared to reach that conclusion.
Rather, he observed that the case law of the European Court of Human
Rights did not establish a general right to bargain collectively. Although
Article 11 ECHR has been held to safeguard the freedom to protect the
occupational interests of trade union members by trade union action, the
conduct and development of which the Contracting States must both permit
and make possible,219 this broad statement covers only a core of specific
activities.220 It does not include any right for a trade union to be consulted
by the State,221 nor an obligation on the State to conclude collective agreements.222 There is no direct reference in this case law to a right to bargain
collectively.223 In the view of the AG, Article 6 ESC and the related clauses
in international law, were not sufficiently strong to create a fundamental
right to collective bargaining.224 In the absence of such a clear-cut right in
international law it was, by implication, inappropriate for the Court of
Justice to move at a faster pace than the Strasbourg Court when interpreting the scope of corresponding rights under Community law and the ECHR,
an approach now reinforced by the horizontal provisions of the EU
Charter of Fundamental Rights.225
The Social Charters declarations on collective bargaining must be read
together with point 13 where it is pronounced that:
The right to resort to collective action in the event of a conflict of interests shall
include the right to strike subject to the obligations arising under national regulations and collective agreements.

The right to strike contained in point 13 is similar to Article 6(4) ESC,226

although the ESC makes no reference to obligations arising under national
regulations. Once again the Commissions reaction was cautious. No
219

National Union of Belgian Police v Belgium, 27 Oct 1975, Series A No 19, para 40.
See paras 14345 of the opinion. In fact the only right expressly recognised by the Court
has been to be heard by the State, ibid para 39; and Swedish Engine Drivers Union v Sweden,
6 February 1976, Series A No 20, para 40.
221
Belgian Police, ibid para 38.
222
Swedish Engine Drivers, n 220 above, para 39.
223
In para 148 the AG cites the Swedish Engine Drivers case, ibid where the majority of
the Commission of Human Rights had argued in favour of interpreting Art 11 ECHR to
include a right of trade unions to engage in collective bargaining. The Court, however, held
that it did not have to give a ruling on that question since, it said, such a right was not at
issue and was granted to the applicant union under national law. See also, Gustafsson v
Sweden, 25 April 1996, RJD. 1996II, No 9, discussed in paras 15156 of the opinion.
224
Paras 14647. In para 149 the AG points to the restrictive interpretation of Art 6 ESC
in the cases concerning the Belgian Police, n 219 above, para 38; and Swedish Engine Drivers,
ibid para 39. In both cases the Court of Human Rights commented upon the meaning of Art
6(1) ESC in the course of interpreting Art 11 ECHR.
225
OJ 2000, C364/1. See Art 52(3), which does, however, allow for the provision of more
extensive protection in the form of Union law. See further, ch 12.
226
Art 6(4) ESC declares that workers and employers have the right to take: collective
action in cases of conflicts of interest, including the right to strike, subject to obligations that
might arise out of collective agreements previously entered into.
220

146

The Community Social CharterCatalyst For Action II

attempt was made to frame a proposal based on Article 94 EC [ex 100

EEC].227 Another option, suggested by Bercusson, would have been a
Community instrument recognising the right to strike over violations or
impasses in negotiating agreements on fundamental rights with protection
according to the law in each Member State.228 Such an approach would put
fundamental rights disputes on a par with industrial conflicts. It is difficult
to envisage how the Community would have justified legislation on these
grounds, presumably based on Article 308 EC [ex 235 EEC], even before
such an option was apparently foreclosed by the exclusion of the right to
strike from the reach of legislation promulgated under the Amsterdam
Social Chapter.229 Moreover, the phrase conflicts of interests in point 13
indicates that the right to strike is limited to protecting workers interests
rather than the broader notion of fundamental social rights.
Community legislation recognising the right to strike as a fundamental
social right would present acute practical and philosophical difficulties as,
in most Member States,230 a fundamental distinction is drawn between conflicts of interest and conflicts of right.231 Recognition of the right to strike
places collective interests on a pedestal above the rights of individuals under
the contract of employment or employment relationship. As Barnard
explains:232
While disputes over conflicts of rights concern the interpretation and application of
existing contractual clauses, disputes over conflicts of interests relate to changes in
the establishment of collective rules and require the conflicting economic interest to
be reconciled with a view to reaching a solution on the basis of legal or collective
procedures.

It is for this reason that the Charter indicates a preference for mediation,
conciliation and, if necessary, arbitration at the appropriate level.233 Indeed,
in a parallel study the Commission note that the concept of a Community
right to strike poses immense problems as a result of the very different
and complex laws governing strike action in the Member States.234 A Community right to strike would be incapable of definition in individual
Member States where there are a multitude of forms of industrial action
227
For discussion of the legality of using Article 94 EC for such a proposal in the light of
the Courts judgment in Case C376/98, Germany v European Parliament and Council
(Tobacco Advertising) [2000] ECR I8419, see ch 3, pp 867.
228
B Bercusson, Fundamental Social and Economic Rights in the European Community
in A Cassesse, A Clapham and J Weiler (eds) Human Rights and the European Community:
Methods of Protection (Nomos, Baden-Baden, 1991) 195291 at 230.
229
Art 137(6) EC [ex 2(6) of the Agreement on Social Policy].
230
With the exception of the UK and Ireland. See Barnard, n 80 above at 578.
231
Nielsen, n 99 above, p 105.
232
Barnard, n 80 above, p 578.
233
Point 13(2).
234
Comparative Study on Rules Governing Working Conditions in the Member States: A
Synopsis, SEC(89) 1137, pp 645. See Bercusson in Cassesse et al, n 228 above at 22930.

The Charters Fundamental Social Rights 147

and a variety of legal effects.235 Instead the Commission, in its proposed
new initiatives in the Action Programme, steered clear of any reference to
the right to strike and focused on developing social dialogue at all levels.
There was to be only one specific initiative, which would involve the preparation of a communication on the development of collective bargaining,
including collective agreements at European level, with specific reference to
the settlement of disputes.236 This communication was not progressed by
the Commission during the course of the Action Programme. In subsequent
reports the Commission made no attempt to justify why it was abdicating
its responsibility to further this part of the Charter.237
The Court has reflected the Commissions caution in this respect. In his
opinion in Albany International,238 AG Jacobs observed that Article 11
ECHR does not necessarily imply a right to strike, since the interests of
union members can be furthered by other means.239 Nevertheless, he concluded that the Community legal order protects the right to form and join
trade unions and employers associations that is at the heart of freedom of
association.240 It follows that the right to take collective action in order to
protect occupational interests in so far as it is indispensable for the enjoyment of freedom of association is also protected by Community law.241
However, there is insufficient convergence of national legal orders and international legal instruments on the recognition of a specific fundamental right
to bargain collectively.242 The Court did not address the international instruments in its judgment in Albany although, as has already been noted,243 it
too ultimately concluded that collective agreements per se fell outside the
competition rules in Article 81 EC [ex 85 EEC].
While the Commissions caution and the Courts agnosticism suggest that
collective labour rights have entered a cul-de-sac notwithstanding the bold
statements in the Charter, more concrete possibilities have been offered by
the second paragraph of point 12 where it is stated that:
The dialogue between the two sides of industry at European level which must be
developed, may, if the parties deem it desirable, result in contractual relations in
particular at inter-occupational and sectoral level.
235

Bercusson, ibid at 230.

Social Europe 1/90, p 65.
Despite a brief mention of the proposed communication in the first monitoring report,
COM(91) 511, Annex II, the three reports that followed were silent: COM(92) 562, COM(93)
668 and COM(95) 184. See further, B Ryan, Pay, Trade Union Rights and European
Community Law (1997) 13 International Journal of Comparative Labour Law and
Industrial Relations 305 at 3089.
238
Case C67/96 [1999] ECR I5751.
239
Schmidt and Dahlstrm v Sweden, judgment of 6 Feb 1976, Series A No 21, para 36.
240
Albany International, para 158.
241
Ibid para 159.
242
Ibid para 160. The AG concludes, at para 161, that the right to collective bargaining is
sufficiently protected by the general principle of freedom of contract.
243
Discussed in ch 1.
236
237

148 The Community Social CharterCatalyst For Action II

This statement sits rather uneasily in a document seeking to establish
rights. It is, however, indicative of the potential for the development of
European social dialogue and by referring to contractual relations rather
than merely relations, as in Article 118b EEC, it presages the formalised
establishment of European framework agreements under the procedure
introduced at Maastricht and now contained in Articles 138139 EC [ex
Articles 3 and 4 of the Agreement on Social Policy].
A third example of social rights in the Charter derived from international
law can be found in the first paragraph of point 10. Under this provision
workers have a right to adequate social protection according to the
arrangements applying in each country. Workers also have a right to enjoy
an adequate level of social security benefits irrespective of their status and
the size of the undertaking where they are employed. These commitments
broadly correspond with the right to social security in Article 12 ESC and
ILO Convention No 102. As an alternative to harmonisation, the
Commission consulted on a strategy designed to achieve the convergence
of objectives of national security systems that can act as a brake on free
movement.244 This was eventually adopted in the form of a Council
Recommendation on Social Protection: Convergence of Objectives.245
Finally, we complete this grouping with Articles 2023 containing a series
of employment-related rights for the protection of children and adolescents
derived from Articles 7, 9 and 10 ESC and ILO Convention No 138. These
rights can be summarised as follows:
a minimum employment age not lower than the minimum school leaving
age and, in any case, not lower than fifteen years;246
equitable remuneration for young people in gainful employment in accordance with national practice;247
limitation of the duration of work;248
prohibition of night work in the case of workers under eighteen years;249
vocational training for the purposes of access to employment and, following the end of compulsory education, such training should take place
during working hours.250
In this area, unlike in the other fields in this grouping, the Commission proposed a binding legislative measure in the form of a directive on the approximation of the laws of the Member States on the protection of young
244

Social Europe 1/90, p 64.

Council Recommendation 92/442/EEC, OJ 1992, L245/49. For the Commission
proposal, see COM(91) 228, OJ 1991, C194/13.
246
Point 20.
247
Point 21.
248
Point 22.
249
Ibid.
250
Points 22 and 23.
245

The Charters Fundamental Social Rights 149

people.251 In the Action Programme the Commission left the issue of the
appropriate legal base open. There was a strong hint, however, that recourse
would be made to Article 118a EEC. For example, the Action Programme
declared that children should in no event take up an occupation which
endangers their health.252 The Commission concluded that the working
hours of young people less than 18 years would have to be limited to
protect their health and safety.253 Further reference was made to the need
for regular medical checks to ensure that the health of young workers would
not be threatened by the job in question.254 The Commission had prepared
their ground well and, once proposals had been issued under Article 118a
EEC,255 the measure was eventually adopted as Directive 94/33.256 This
Directive will be considered in more detail in the next chapter. Suffice to
say that the Directive does not address the issue of the equitable remuneration of young workers. Nonetheless, the Commissions success under this
heading demonstrates that, in the period of the SEA, it was possible to
secure binding social policy legislation where there was a link made with the
health, safety and working environment of workers. In the other headings
falling within this grouping, where pay and collective rights are to the fore,
there was no realistic possibility of progress and the Commission wisely
chose to target their resources on the areas where there was the greatest
possibility of success.

(3) Fundamental Social Rights of Persons

Points 2426 on the fundamental social rights of elderly and disabled
persons, and the second paragraph of point 10 on social protection, form
a third grouping of fundamental social rights in the Charter applicable to
both workers and persons. In one sense these rights are a hangover from
the Commissions drafts of the Charter. Citizenship is not referred to in the
final text but, to all intents and purposes, these are citizens rights. In
another, more practical, sense, however, these are safe rights. In the light
of subsidiarity and the delineation of competences in the Charter, it is clear
that these are areas where the Community was in a position to have influence without, ultimately, being able to dictate policy to the Member
States. The significance of this category of rights lies with the recognition
that disabled and elderly persons have specific rights that extend beyond
251

Social Europe 1/90, pp 734.

Ibid.
253
Ibid.
254
Ibid.
255
COM(91) 543, OJ 1992, C84/7; and the amended proposal, COM(93) 35, OJ 1993,
C77/1.
256
Dir 94/33/EC on the protection of young people at work, OJ 1993, L216/12.
252

150 The Community Social CharterCatalyst For Action II

the ambit of the social policy provisions. This mainstreaming approach
to group rights, linked with the general principles of equality and nondiscrimination, was to eventually manifest itself in Article 13 EC, introduced by the Treaty of Amsterdam, and the Framework Employment
Directive of 2000.257 In the short-term, however, the Commission exhibited
only limited ambitions in these areas.
Points 24 and 25 of the Charter are concerned with the rights of elderly
persons. As in the case of social protection rights in point 10, it is a precondition for the exercise of these rights that they will operate according
to the arrangements applying in each country. Point 24 proclaims that every
worker must, at the time of retirement be able to enjoy resources affording him or her a decent standard of living. Point 25 offers a more limited
right to any other person who has reached retirement age but is not entitled to a pension and does not have other means of subsistence. Persons
falling into this category must be entitled to sufficient resources and to
medical and social assistance specifically suited to his needs. The rights
contained in points 24 and 25 can be directly traced to Article 23 ESC concerning the right of elderly persons to social protection.
In the Action Programme the Commission highlighted the budgetary implications of demographic change both in connection with retirement pensions
and also the increasing pressures on social and medical services.258 The
Commission noted that 20 per cent of the population were over 60, a figure
which they expected to increase to 25 per cent by 2000. In particular, concern
was expressed about a potential fall in the numbers active in the labour
market. Hence, the ground was being prepared for the development of an
important strand of the Communitys labour market strategy, subsequently
launched at Essen, in December 1994, where a series of priorities for job
creation were identified based on active labour market measures.259 These
priorities formed the nucleus of what was later to emerge in concrete form in
the Employment Guidelines, first published in 1997260 in the immediate
aftermath of the Amsterdam Treaty. In the 1989 Action Programme,
however, the Commission proposed to limit its activities in this area to the
establishment of a separate action programme that would provide for pilot
projects, exchanges of experience, improved information and channels of
communication between groups representing the elderly.261 A Council
Decision was rapidly adopted262 along with a proposal for a European Year
of the Elderly and Solidarity between Generations in 1993.263
257
Dir 2000/78/EC establishing a general framework for equal treatment in employment
and occupation, OJ 2000, L303/16. For full discussion, see ch 9.
258
Social Europe 1/90, p 74.
259
Presidency Conclusions, Essen European Council, 9/10 Dec 1994.
260
COM(97) 497.
261
Social Europe 1/90, p 75.
262
Decision 91/49/EEC, OJ 1991, L28/29. For the Commission proposal, see COM(90) 80.
263
Decision 92/440/EEC, OJ 1992, L245/43. The Commission proposal can be found in
COM(91) 508, OJ 1992, C25/5.

The Charters Fundamental Social Rights 151

Point 26 of the Charter addresses the fundamental social rights of disabled persons in more forthright terms thus:
All disabled persons, whatever the origin and nature of their disablement, must
be entitled to additional concrete measures aimed at improving their social and
professional integration.
These measures must concern, in particular, according to the capacities of the
beneficiaries, vocational training, ergonomics, accessibility, mobility, means of transport and housing.

Significantly, point 26 evokes a broad conception of disability and forms part

of the drive for greater economic and social cohesion.264 As the Commission
noted in the Third Report on the Application of the Social Charter, the
Communitys task was to integrate an estimated 30 million disabled people
economically and socially within the general context of improving the
quality of life of all Community citizens.265 Moreover, the Community had
adopted a programme on the vocational rehabilitation of people with
disabilities in 1974266 and a Recommendation on the Employment of
Disabled People in the Community in 1986.267 The Recommendation
espouses equal opportunities for disabled persons in training and
employment and the development of comprehensive policies including
positive action. Building on this approach, and following the launch of the
Helios programme in 1988,268 the Commission proposed to continue this
effort with Helios II for the period 199396.269 The Helios programmes were
designed to promote a coherent overall policy on integration and an
independent way of life for disabled persons. An additional proposal, for a
directive, was to be aimed at promoting the improvement of travel conditions
of workers with motor disabilities as an essential prerequisite for vocational
training and employment.270 The resulting Community instrument was in
the form of a non-binding Council Resolution establishing a separate action
programme.271
We complete this section with the general right to social protection contained in the second paragraph of point 10 of the Charter, which declares
that:
264
See L Waddington, Disability, Employment and the European Community (Maklu,
Antwerp, 1995); and Hervey, European Social Law and Policy, n 21 above, pp 16972.
265
COM(93) 668, p 18.
266
Council Resolution of 27 June 1974, OJ 1974, C80/30.
267
Council Recommendation 86/379/EEC, OJ 1986, L225/43.
268
Handicapped People in the European Community Living Independently in an Open
Society, OJ 1988, L104/38. An earlier Action Programme on the Integration of Handicapped
People covered the period from 1983 to 1988, OJ 1981, C347/14.
269
Decision 93/136/EEC, OJ 1993, L56/30. For the Commission proposals, see COM(91)
350, OJ 1991, C293/2; as amended by COM(92) 482, OJ 1993, C25/1.
270
Social Europe 1/90, p 76.
271
OJ 1992, C18/1. The Commission proposals were published in COM(90) 588, OJ 1991,
C68/7; and COM(91) 539, OJ 1992, C15/18.

152 The Community Social CharterCatalyst For Action II

Persons who have been unable either to enter or re-enter the labour market and
have no means of subsistence must be able to receive sufficient resources and social
assistance in keeping with their particular situation.

Although there is no direct reference in point 10 to combating social exclusion, it is clear that this clause is intended to apply to those who are no
longer in employment or who may never have entered the labour market
and, therefore, it is indicative of a general right to social protection for
Community citizens, albeit subject to the arrangements established in each
country. This caveat prohibits harmonisation measures but it allows for the
development of a convergence of social protection objectives and, specifically, the establishment of common criteria concerning sufficient resources
and social assistance in national social protection systems. The latter was
adopted in the form of a Council Recommendation in 1992.272 It seeks to
establish a subjective right to a guarantee of sufficient resources and benefits, and guidance for Member States on the ways and means of implementing that right. While this measure provides no more than soft legal
guidance, it serves to encourage Member States to ensure that basic social
assistance should cover essential needs taking account of living standards
and price levels.273 This is a clear indication that the right to social protection creates a general duty on Member States to define and combat
poverty concomitant with other commitments set out in the parallel
Poverty programmes.274
From the above analysis it is clear that, even in areas on the fringes of
Community competence, or falling entirely within the national sphere of
social policy, the Social Charter has, directly or indirectly, acted as a catalyst for wider and deeper integration primarily through the vehicle of the
Action Programme. In turn, the Action Programme, sanctioned through the
horizontal clause in point 28, helped to broaden the Communitys social
objectives beyond the narrow confines of Articles 117122 EEC. The
Charter has, in practice, embraced all Community citizens, albeit that much
of this activity has been generated through soft law programmes. In order
to assess the effectiveness of Community social legislation during the Action
Programme (19891994) let us now turn, in the next chapter, to an analysis of selected directives and non-binding instruments introduced in this
period.
272
Recommendation 92/441/EEC, OJ 1992, L245/46. For the Commission proposals, see
COM(91) 161, OJ 1991, C163/3; and COM(92) 240.
273
Ibid. Section IC.
274
See Hervey, European Social Law and Policy, n 21 above, pp 16365. At the time of
the Social Charter the Community had launched the Poverty 3 programme linked to the goals
of the Internal Market and economic and social cohesion, Council Decision 89/457/EEC, OJ
1989, L224/10.

5
Community Social Legislation in the
Era of the Social Charter
I A SOLID BASE OF LEGISLATIVE ACHIEVEMENTS?

N THE PERIOD between the launch of the Social Charter Action

Programme in November 19891 and the publication of the Commissions
Green Paper on Social Policy in November 1993,2 the Commission, in
a sustained burst of activity, presented all 47 of the specific proposals in
the Action Programme. In fact many of these proposals did not require
legislative action, but of the 29 prospective measures referred to the
Council, 16 had been adopted at this stage.3 Indeed, several months later,
in the ensuing White Paper on European Social Policy of July 1994,4 the
Commission followed through their own logic and concluded that:5
Given the solid base of European social legislation that has already been achieved,
the Commission considers that there is not a need for a wide-ranging programme
of new legislative proposals in the coming period.

In order to assess the veracity of the Commissions seemingly confident

claim it is necessary to evaluate the Communitys legislative output over the
period of the Action Programme.6 In particular, our interest lies in questioning the assumptions that lay behind the Commissions statement. How
far was it possible for Community legislation, justified primarily on internal market or health and safety grounds, to fulfil the broad social aims that
1

COM(89) 568. Reproduced in Social Europe, 1/90, pp 5276.

COM(93) 551, Options for the Union. The purpose of the Green Paper was to set out
the achievements of the Communitys social dimension and to map a way forward that took
account of the entry into force of the Treaty on European Union (TEU) and the changing
socio-economic situation reflected most noticeably by a serious rise in the level of unemployment (Introduction, p 6). These themes will be carried forward in chs 6 and 7.
3
Ibid p 10.
4
COM(94) 333, A Way Forward for the Union.
5
Ibid. Introduction, para 22. Emphasis added.
6
The Action Programme covered the period from 1989 to 1994. Although the TEU entered
into legal force on 2 Nov 1993, none of the proposals under discussion in this chapter were
proposed or enacted under the provisions of the Agreement on Social Policy, which was
annexed to the amended EC Treaty by the TEU.
2

154 Community Social Legislation

underpinned the Charter, even in the denuded form in which it was ultimately issued? How valid was the Commissions claim in the light of the
apparently unflinching opposition of the UK to European social legislation
throughout this period?7 To what extent did this solid base of legislation
amount to a minimum set of uniform exercisable social rights for Community workers and persons broadly consistent with the aims of the
Charter? How far was this process of Europeanisation of the social laws
of the Member States dependant upon quasi-legislative or soft law measures designed to encourage rather than impose adherence by national
legislatures and courts?
For the purposes of conducting our evaluation, while taking account of
these questions, examples have been selected from three distinct streams of
social legislation introduced under the Action Programme. The first stream
consists of three directives adopted as health, safety and working environment measures on the basis of an expansive interpretation of Article 118a
EEC [now part of 137 EC]. The second stream contains the only measure
introduced during this period with the purpose of improving living and
working conditions in so far as they directly effect the establishment or
functioning of the common market under Article 100 EEC [now 94 EC].
Finally, the third stream features two contrasting examples of Community
soft laws to provide an assessment of the legal scope and effectiveness of
Community social policy measures that are formally non-binding.

II TAKING FULL ADVANTAGE OF ARTICLE 118a EEC?

Momentum for legislative action based on Article 118a EEC grew rapidly
after the adoption of the SEA. Indeed, by the end of 1987, the Commission
had formulated a strategy to take full advantage of the opportunities
afforded by the provisions of . . . Article 118a.8 The European Parliaments
Salisch Report of October 19889 added fuel to the fire by urging an
ergonomic approach to the concepts of health, safety and the working
environment, which took account not only of specific health and safety
risks at the workplace, but also the needs of the whole person and his or
her environment at work and in society.10 In the Action Programme,
7
Indeed it was precisely because of this opposition that the eleven signatories of the Social
Charter decided, with the UKs approval, to adopt a separately annexed Agreement on Social
Policy, specifically because they wished to implement the Social Chartersee the first recital
of the preamble of the Agreement on Social Policy annexed to Protocol 14 of the EC Treaty
as revised by the TEU.
8
Commission Communication of 21 December 1987 on its programme concerning safety,
hygiene and health at work, OJ 1988, C28/2; Summary and Part II.A.
9
The Concept of the Working Environment and the Scope of Article 118a of the EEC
Treaty, Salisch Report, PE DOC A 2-226/88, 21.10.88.
10
Ibid p 10. Discussed in ch 3, pp 968.

Taking Full Advantage of Article 118a EEC? 155

however, the Commission limited its ambitions, under a heading concerning health protection and safety in the workplace, to technical regulations
regarding products and equipment used by workers and provisions regarding worker protection and the working environment. The main vehicle for
achieving these objectives was to be the framework Directive on the Safety
and Health of Workers at Work.11 In the event, however, three directives:
on Pregnancy and Maternity;12 the Organisation of Working Time;13 and
Young Workers;14 each put forward elsewhere in the Action Programme,15
were introduced, controversially, under Article 118a EEC, and therefore
became effective in all Member States, circumventing the UKs veto.16 While
much of the debate concerning these directives has been concerned with the
strategies of the players in the Treaty base game,17 and the Courts justifications for broadly interpreting the concepts in Article 118a EEC,18 our
primary interest here lies with the quality of the legislation that emerged
and the extent to which it has contributed to a solid base of social legislation in this field.
(1) Pregnancy and Maternity
The first measure to test the scope of Article 118a EEC was the Pregnancy
and Maternity Directive19 introduced in 1992 for implementation by
11

Dir 89/391/EEC, OJ 1989, L183/1.

Dir 92/85/EEC on the introduction of measures to encourage improvements in the safety
and health of pregnant workers and workers who have recently given birth or are breast
feeding (tenth individual Directive within the meaning of Art 16(1) of Dir 89/391/EEC) OJ
1992, L348/1.
13
Dir 93/104/EC concerning certain aspects of the organisation of working time, OJ 1993,
L307/18.
14
Dir 94/33/EC on the protection of young people at work, OJ 1994, L216/12.
15
The proposal on pregnancy and maternity is featured in the initiatives concerning equal
treatment for men and women (point 16); references to limiting working time are found under
the heading improving living and working conditions (points 79); and proposals concerning young workers fall within the protection of children and adolescents (points 2023). See
Social Europe 1/90, p 52.
16
See ch 3 for discussion of the scope of Art 118a EEC.
17
See B Fitzpatrick, Straining the Definition of Health and Safety (1997) 26 Industrial
Law Journal 115.
18
See generally, C Barnard, A Dashwood and B Hepple, The ECJs Working Time Judgment: The Social Market Vindicated (CELS Occasional Paper No 2, Cambridge, 1997).
19
Dir 92/85/EEC, OJ 1992, L348/1. For academic literature on the Directive, see N
Burrows, Maternity Rights in EuropeAn Embryonic Legal Regime (1991) 11 Yearbook of
European Law 273; V Cromack, The EC Pregnancy DirectivePrinciple or Pragmatism?
(1993) 15 Journal of Social Welfare and Family Law 261; E Ellis, Protection of Pregnancy
and Maternity (1993) 22 Industrial Law Journal 63; H Fenwick, Special Protections for
Women in European Union Law in T Hervey and D OKeeffe (eds) Sex Equality Law in the
European Union (Wiley, Chichester, 1996) 6380; C Kilpatrick, How long is a piece of string?
European regulation of the post-birth period in Hervey and OKeeffe, ibid 8196; and E
Szyszczak, Community Law on Pregnancy and Maternity in Hervey and OKeeffe, ibid
5262.
12

156 Community Social Legislation

19 October 1994.20 Whereas the Action Programme had indicated that an
initiative to protect pregnant women at work would be based on equal
treatment between women and men,21 the Commissions proposals22 and
the ensuing Directive refer only to point 19 of the Charter concerning health
and safety conditions in the working environment.23 In particular, the Directive is justified on the basis that pregnant workers, and workers who have
recently given birth or are breastfeeding, must be a specific risk group with
respect to their safety and health in line with Article 15 of the framework
Directive on the Safety and Health of Workers at Work.24 The proposals
focused on specific measures concerning, inter alia, the dangers for pregnant women associated with visual display units and risks arising from
exposure to carcinogens. In the view of the Economic and Social Committee the proposal offered a coherent health and safety package.25 By
placing their proposals in this context, the Commission provided a basis
for the Directive to be adopted as the tenth individual daughter directive
within the meaning of Article 16(1) of the framework Directive. In order
to fit the Directive within the overall structure of Article 118a EEC and
the framework Directive, its protective health and safety goals were
accentuated, as an alternative to legislating specifically for the purpose of
establishing maternity rights per se. In fact, when push came to shove, the
UK, having secured several key amendments, was prepared to abstain rather
than oppose the measure.26 The Directive does, however, retain elements
that can be traced back to its source as an equal treatment measure derived
from point 16 of the Charter.
A brief examination of the resulting Directive reveals this dual health and
safety/equal treatment purpose. Articles 17 reflect the primary objective of
health and safety protection. The starting point of the Directive is for the
Commission to draw up guidelines concerning health and safety hazards
for pregnant workers and for workers who have recently given birth, or who
are breast feeding, with a view to risk assessment for these groups of
workers.27 Member States are obliged to bring these guidelines to the attention of all employers and all female employees and/or their representatives.28
Annex I contains a non-exhaustive list of activities liable to involve a specific
risk of exposure to physical, biological and chemical agents, industrial
processes and working conditions in underground mining. There is an obligation on the employer to assess these risks and take necessary measures to
20
21
22
23
24
25
26
27
28

Art 14(1).
Social Europe 1/90, p 68.
OJ 1990, C281/3 and OJ 1991, C25/9.
Fifth recital of the preamble.
Sixth and seventh recital of the preamble.
OJ 1991, C41/30.
See Ellis, n 19 above at 65. Italy also abstained.
Art 3(1).
Art 3(2).

Taking Full Advantage of Article 118a EEC? 157

avoid the exposure of the worker concerned to such risks.29 Employers must
adjust the working conditions or, if this is not technically or objectively
feasible and cannot be required on duly substantiated grounds, workers
may have to be moved to another job,30 or be granted leave in accordance
with national legislation and practice.31 There are also prohibitions in
certain cases where there is a risk of exposure to agents and working
conditions listed in Annex II,32 with additional safeguards for women who
are breastfeeding.33 Workers are not obliged to perform night work during
pregnancy and for a period after childbirth.34 The implementing measures
must, however, entail the possibility, in accordance with national
legislation/or practice, for the worker in question to transfer to day work,35
or be granted leave if this is not feasible or cannot reasonably be required
on duly substantiated grounds.36
Articles 812, by contrast, contain a limited range of specific maternity
rights for women. Article 8 provides a right to a continuous period of at
least 14 weeks maternity leave, in accordance with national legislation and
practice, including at least two weeks leave before and/or after confinement.
This was a reduction from the 16 weeks leave originally proposed by the
Commissions equalities unit.37 Moreover, at least two weeks of this period
is determined according to coercive protective reasons rather than the
personal choice of the woman concerned.38 Under Article 11 an adequate
maternity allowance must be paid during the period of maternity leave guaranteeing income at least equivalent to that which the worker concerned
would receive in the event of a break of her activities on grounds connected
with her state of health. This will be subject to any national ceiling and also
the worker may have to fulfil national conditions of eligibility for such
benefits. By virtue of Article 9, women also have a right to time-off without
loss of pay in order to attend antenatal examinations, if such examinations
have to take place during working hours.
Article 10(1) of the Directive obliges Member States to take the necessary measures to prohibit dismissal from the beginning of the pregnancy
to the end of the period of maternity leave, save in exceptional cases not

29

Arts 4 and 5.
Art 5(2).
31
Art 5(3).
32
Art 6(1). This list follows the same headings as Annex I but is more limited.
33
Art 6(2).
34
Art 7(1).
35
Art 7(2)(a).
36
Art 7(2)(b).
37
See Ellis, n 19 above at 63. The European Parliament attempted to reinstate the 16-week
leave period unsuccessfully. The equalities unit also proposed that the directive should cover
replacement services for self-employed pregnant women, paternity leave and reversal of the
burden of proof.
38
See Fenwick, n 19 above at 76.
30

158 Community Social Legislation

connected with the womans condition which are permitted under national
legislation and practice and where applicable, provided that the competent authority has given its consent. However, under Article 10(2) any
employer seeking to justify dismissal on this basis must cite duly substantiated grounds in writing. Article 10(3) places an additional obligation
on Member States to take the necessary measures to protect women
unlawfully dismissed under this provision from the consequences of
dismissal.
Article 10, which the Court has found to be directly effective,39 appears
to strongly reinforce the special protection for women against pregnancy
related dismissals under Articles 2(1) and 3 of Directive 76/207 as interpreted by the Court,40 a point acknowledged in Brown.41 In practice,
however, the utility of this provision depends not only on the scope of Directive 92/85, but also on the interpretation and application of the concept of
dismissal and the grounds under which national rules may allow for dismissals in exceptional cases, including the arrangements, if any, for consent
to be given by a competent authority. The Court has recently considered
these issues in Tele Danmark42 and Jimnez Melgar.43 Before turning to the
39
Case C438/99, Jimnez Melgar v Ayuntamiento de Los Barrios [2001] ECR I6915,
paras 314.
40
Dir 76/207/EEC on equal treatment for men and women as regards access to
employment, vocational training and promotion and working conditions, OJ 1976, L39/40.
See Case C177/88, Dekker v Stitchting Vormingscentrum voor Jong Volwassenen [1990] ECR
I3941; Case C421/92, Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband
Ndb/Opf EV [1994] ECR I1657; Case C32/93, Webb v EMO Air Cargo [1994]
ECR I3567; Case C394/96, Brown v Rentokil Ltd [1998] ECR I4185; Case C218/98,
Abdoulaye v Renault [1999] ECR I5723; Case C207/98, Mahlburg v Land MecklenburgVorpommern [2000] ECR I549; Jimnez Melgar, ibid; Case C109/00, Tele Danmark
A/S v Handels-og Kontorfunktionrernes Forbund i Danmark [2001] ECR I6993; cf
Case C400/95, Larsson v Ftex Supermarked [1997] ECR I2757. For critique, see H
Fenwick and T Hervey, Sex Equality in the Single Market: New Directions for the European
Court of Justice (1995) 32 Common Market Law Review 443 at 45057; L Flynn, Equality
between Men and Women in the Court of Justice (1998) 18 Yearbook of European Law
259 at 26578; E Ellis, The Recent Jurisprudence of the Court of Justice in the Field of Sex
Equality (2000) 37 Common Market Law Review 1403 at 141622; and E Caracciolo di
Torella and A Masselot, Pregnancy, Maternity and the Organisation of Family Life: An
Attempt to Classify the Case Law of the Court of Justice (2001) 26 European Law Review
239.
41
Brown, ibid. See Flynn, ibid at 268. The Court held, at para 18, that it was precisely in
view of the harmful effects which the risk of dismissal may have on the physical and mental
state of women who are pregnant, women who have recently given birth or women who are
breastfeeding, including the particularly serious risk that pregnant women may be prompted
voluntarily to terminate their pregnancy, that the Community legislature, pursuant to Article
10 [of the Directive] . . . provided for special protection to be given to women, by prohibiting
dismissal during the period from the beginning of their pregnancy to the end of their maternity leave. Article 10 . . . provides that there is to be no exception to, or derogation from, the
prohibition of dismissal of pregnant women during that period, save in exceptional cases
not connected with their condition. See C Boch, Official: During Pregnancy, Females are
Pregnant (1998) 23 European Law Review 488.
42
Case C109/00, Tele Danmark A/S v Handels-og Kontorfunktionrernes Forbund i
Danmark [2001] ECR I6993.
43
Case C438/99, Jimnez Melgar v Ayuntamiento de Los Barrios [2001] ECR I6915.

Taking Full Advantage of Article 118a EEC? 159

Courts case law on the Directive, however, let us first consider the Commissions periodic report on its implementation, published in 1999.44
In the implementation report the Commission note that Member States
have, in the main, applied the Directive to all pregnant workers in both public
and private sectors and to women on both indefinite and fixed-term
contracts.45 The Commission have identified a number of examples of
apparent non-compliance arising either from misimplementation by Member
States, or misapplication of national rules and/or practices. For example,
contrary to Article 5, national law in France and Spain does not adequately
provide for pregnant workers to take leave for health and safety reasons.46
The provisions on night work in Article 7 do not amount to an outright ban,
but rather a prohibition against forced night work for women covered by
the Directive. According to the Commission, this means that the Directive is
consistent with the equal treatment principle guaranteed by Article 5 of
Directive 76/207. The Court has held in Stoeckel47 and, subsequently, in
infringement proceedings against France48 and Italy49 that a general ban
against women performing night work is contrary to the principle of equal
treatment. The Court did not directly address the ILO Night Work Convention No 89 which prohibited night work for women, and to which both
Member States were bound at the time, although its finding is compatible
with the Protocol to that Convention and a revised Night Work Convention
introduced in 1990.50 The Commission identify several Member States who
ban pregnant women, or women who have recently given birth, from night
work. Such a ban goes further than is necessary to achieve the protective
objective of Article 7 and therefore, according to the Commission, contravenes Directive 76/207. Infringement proceedings will be brought against
these Member States.51 This litigation will address the tension inherent
within the Directive between its essentially protective provisions, that can
44

COM(99) 100.
Ibid p 7. The Commission reported, however, that there were exceptions in the legislation in Austria, Greece and Gibraltar and, as no exceptions are allowed, they proposed to
bring infringement proceedings in this regard.
46
Ibid p 8.
47
Case C345/89, Ministre Public v Stoeckel [1991] ECR I4047. See S Sciarra, Dynamic
integration of national and Community sources: the case of night-work for women, in Hervey
and OKeeffe, n 19 above, 97108; and C Kilpatrick, Production and Circulation of EC Night
Work Jurisprudence (1996) 25 Industrial Law Journal 169.
48
Case C197/96, Commission v French Republic [1997] ECR I1489.
49
Case C207/96, Commission v Italy [1997] ECR I6869.
50
ILO Convention No 171, Recommendation No 178 and a Protocol to the Night Work
(Women) Convention No 89. This allows the prohibition to be lifted at the express request of
a woman worker on condition that neither her health nor that of her child will be endangered.
This decision represents a complete volte-face in international labour law. Back in 1919, when
the ILO was founded, the issue of night work for women was at the top of the agenda and
led to the adoption of a Convention on the subject at the ILOs inaugural session: ILO Night
Work (Women) Convention (No 4). See N Valticos and G von Potobsky, International Labour
Law, 2nd revised edn (Kluwer, Deventer, 1995) p 208.
51
Austria, Italy, Luxembourg and the UK (in respect of the law in Gibraltar). Proceedings
against Germany are also being contemplated.
45

160

Community Social Legislation

create a negative impact on womens employment by removing women from

the workplace,52 and its broader equal treatment objectives that place
emphasis on the maternity entitlements of women workers.53
In relation to the maternity rights in Articles 812, the Commission found
a high level of compliance. This is not surprising considering the minimalist
nature of these provisions. At the time of the report maternity leave ranged
from 14 weeks in the UK54 to 28 weeks in Denmark.55 The Commission
report contains an extensive survey of maternity allowances paid by Member
States and the form of payment.56 This survey reveals wide variations both
in the amounts that Member States consider to be adequate and the linkage
made between maternity payments and other allowances for sickness and/or
incapacity. For example, payments range from 80100 per cent of full pay
in Belgium, France and the Netherlands, 6570 per cent in Portugal and
Ireland and fixed sums in Sweden and the UK. There is also evidence of blurring between maternity pay and sick pay. For example, in Austria the maternity allowance is based on the average remuneration over the previous 13
weeks and the worker is entitled to special payments such as bonuses.
However, if the reason for the leave is based on a medical certificate stating
health reasons the worker is entitled to a social security benefit.57
Although the preamble indicates that the reference to sick pay in Article
11 should not be interpreted as an analogy between pregnancy and sickness, the wording of the Directive itself does little to prevent such ambiguity in practice.58 The problem of eligibility rules is also highlighted by the
case of Gibraltar where entitlement to an allowance during maternity leave
52
See Fenwick and Hervey, n 40 above, who observe, at 457, that the special protection
of excluding pregnant women from night work masks a desire on the part of the State and
employers to remove pregnant employees from the public and dangerous workplaces wherever possible. Where, as in this instance, the special protection model perpetuates liberal
notions of equality in the public sphere, and implies that womens place lies in the private
sphere, the [special protection] model is revealed as antithetical to substantive equality.
53
For a discussion on the equalities issues raised by the inclusion of protective clauses in
directives, see Fenwick, n 19 above.
54
This was subsequently increased to 18 weeks by the Maternity and Parental Leave etc.
Regs, 1999, effective from 15 Dec 1999. SI 1999 No 3312. Provisions contained within the
UKs Employment Bill, 2001, on formal enactment, will increase the period of leave to 26
weeks and raise the maternity allowance from 2003 [Bill 447 Nov 2001].
55
COM(99) 100, pp 1012.
56
Ibid pp 1519.
57
Ibid p 15.
58
The Court has established through its case law that pregnancy is not in any way comparable to a pathological conditionCase C32/93, Webb v EMO Air Cargo [1994] ECR
I3567, para 25. However, in Case C394/96, Brown v Rentokil Ltd [1998] ECR I4185, the
Court held, at para 22, that it is a period during which disorders and complications may arise
compelling a woman to undergo strict medical supervision and, in some cases, to take absolute
rest for all or part of her pregnancy. Those disorders and complications, which may cause
incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus
considered to be a specific feature of that condition.

Taking Full Advantage of Article 118a EEC? 161

is dependent upon the woman satisfying the conditions of entitlement for
injury benefit.59 The Commission humbly note that such a blatant linkage
between maternity and sickness/injury is permissible because the Directive,
in Article 11(4) allows Member States to make entitlement to an adequate
allowance subject to their own national conditions of eligibility.60
Further guidance on the effectiveness of the Directive can be gleaned from
a limited number of cases referred by the national courts to the Court of
Justice. In Boyle61 five specific issues were referred concerning the rights of
women under their contract of employment during pregnancy and maternity leave. First, the Court was asked to determine the meaning of the terms
payment and an adequate allowance in Article 11. The Court endorsed
its earlier case law when finding that the concept of pay encompasses the
consideration paid directly or indirectly during the workers maternity leave
in respect of her employment.62 By contrast the concept of an allowance
includes all income received by the worker during her maternity leave which
is not paid to her by her employer pursuant to an employment relationship.63 The allowance must provide a guaranteed income at least equivalent to a sickness allowance under national legislation whether it is paid in
the form of an allowance, pay or a combination of the two.64 It does not,
however, guarantee any higher contractual sick pay normally paid by the
employer.65 Therefore, a worker who does not return to work after childbirth does have to repay the difference between the pay she received during
her maternity leave and the statutory payments to which she was entitled
so long as the equivalence test is satisfied.66 Moreover, the requirement to
repay does not amount to sex discrimination as a pregnant woman cannot
be compared with a sick man as the maternity leave granted to a woman
under Directive 92/85 is intended, first, to protect a womans biological condition and, second, to protect the special relationship between a woman
and her child over the period which follows pregnancy and childbirth.67
59

COM(99) 100, p 18.

Ibid pp 1819.
Case C411/96, Boyle and Others v Equal Opportunities Commission [1998] ECR
I6041. See E Caracciolo di Torella, Recent Developments in Pregnancy and Maternity Rights
(1999) 28 Industrial Law Journal 276.
62
This is consistent with the definition of pay in Art 119 EEC [now 141 EC] in Case
C342/93, Gillespie and others v Northern Health and Social Services Board and others [1996]
ECR I475, para 12.
63
Boyle, n 61 above, para 31.
64
Para 33.
65
Para 35. This would not be a like for like comparison: see Case C342/93, Gillespie
and others v Northern Health and Social Services Board and Others [1996] ECR I475, para
16; and Case C279/93, Schumacker v Finanzamt Kln-Altstadt [1995] ECR I225, para 30.
66
Para 36.
67
Paras 4041. See Case 184/83, Hofmann v Barmer Ersatzkasse [1984] ECR 3047, para
25; and Case C136/95, CNAVTS v Thibault [1998] ECR I2011, para 25. For a critique, see
C McGlynn, Ideologies of Motherhood in European Community Sex Equality Law [2000]
6 European Law Journal 29.
60
61

162 Community Social Legislation

Secondly, the Court was asked to consider whether a clause in an employment contract, requiring a female worker who is on pregnancy-related sick
leave immediately before a period of maternity leave to bring forward her
maternity leave period, is discriminatory and contravenes either Article 119
EEC [now 141 EC], Directive 76/207 or Directive 92/85. The Court found
that such a clause was lawful on the basis that Article 8 of Directive 92/85
provides for a minimum period of 14 weeks continuous maternity leave but
leaves it open to the Member States to determine when the maternity leave
commences.68 The clause in the contract merely reflected the choice made
in the national legislation.69 However, the Court found, thirdly, that the
right to 14 weeks continuous leave is an absolute right and a clause prohibiting a woman from taking sick leave during that period unless she
terminates her maternity leave and resumes it later was unlawful.70
Fourthly, the Court held that the legal scope of Article 8 of Directive
92/85 did not extend beyond the continuous 14-week period. Therefore, a
clause in an employment contract covering a supplementary period of
maternity leave, during which time the employee ceased to accrue her entitlement to annual leave, was not prohibited even though it could be viewed
as indirectly discriminatory because it worked to the disadvantage of far
more women than men.71 However, this disadvantage was cancelled out by
supplementary unpaid maternity leave which constituted a special advantage, over and above the protection provided for by Directive 92/85 and
available only to women, so the fact that annual leave ceased to accrue
during that period of leave could not amount to less favourable treatment
of women.72 Finally, the Court held that a clause limiting the accrual of
pension rights during the maternity leave period was unlawful.73
In Hy Pedersen74 the Court was asked to consider Danish legislation
concerning pay during incapacity for work due to pregnancy. The Court
found that the fact that women, absent from work due to pregnancy-related
incapacity, were paid less than workers absent due to other forms of incapacity was discriminatory.75 Discrimination in this case could not be justified by the aim of sharing the risks and economic costs connected with
pregnancy between the pregnant worker, the employer and society as a
whole. That goal could not be regarded as an objective factor unrelated to
any discrimination based on sex within the meaning of the case law of the
68

Para 49.
Para 52.
Para 66.
71
Para 76. See Case C1/95, Gerster v Freiestaat Bremen [1997] ECR I5253, para 30, and
Case C100/95, Kording v Senator fr Finanz [1997] ECR I5289, para 16.
72
Para 79.
73
Para 87.
74
Case C66/96, Hy Pedersen v Kvickly Skive [1998] ECR I7327. See Caracciolo di
Torella (1999, Industrial Law Journal) n 61 above.
75
Ibid para 35.
69
70

Taking Full Advantage of Article 118a EEC? 163

Court.76 While ruling out justification in this case, the Court made no
attempt to exclude the possibility that it might be possible to justify direct
discrimination in the context of the Directive.77
The Court was also asked to consider whether Articles 4 and 5 had been
breached in a situation where an employer had sent a woman home on the
grounds that she was unfit to work due to pregnancy-related incapacity
without paying her salary because he considered that he could not provide
work for her. The Court noted that it is true that, by reserving to Member
States the right to retain or introduce provisions which are intended to protect
women in connection with pregnancy and maternity, Article 2(3) of
Directive 76/207 recognises the legitimacy, in terms of the principle of equal
treatment, of protecting a womans biological condition during and after
pregnancy.78 This argument could not be sustained in this case, however,
because the employers decision had reflected his interests rather than the aim
of protecting the biological condition of the pregnant woman and therefore
he had acted in contravention of Articles 4 and 5 of the Directive.79
The meaning of pay and allowance for the purposes of Article 11(2)
was considered further in Lewen v Denda.80 In this case an employee on
parenting leave had been denied a Christmas bonus. The Court held that
for the purposes of Article 119 EEC [now 141 EC] this was pay, even if
paid on a voluntary basis and even if paid mainly or exclusively as an incentive for future work or loyalty to the undertaking or both.81 The Court went
on to reiterate, however, that the concept of payment within the meaning
of Article 11(2)(b) of Directive 92/85 was different.82 That provision is
intended to ensure that, during maternity leave, female workers receive an
income at least equal to that prescribed by Article 11(3) of that Directive,
irrespective of whether it is paid in the form of an allowance, pay or a combination of the two. As the Christmas bonus was not intended to ensure
such a level of income during a workers maternity leave, the bonus at issue
could not be regarded as falling within the concept of payment within
the meaning of the Directive.83 Article 11(2) of Directive 92/85 was not
76
Case C457/93, Kuratorium fr Dialyse und Nierentransplantation v Lewark [1996]
ECR I243, para 31.
77
Flynn, n 40 above, 27071.
78
Para 54. See Case C32/93, Webb v EMO Air Cargo [1994] ECR I3567, para 20.
79
Para 58. See also, Case C207/98, Mahlburg v Land Mecklenburg-Vorpommern [2000]
ECR I159, where the Court held, at para 26, that the exercise of the rights conferred on
women under Art 2(3) of Dir 76/207 cannot be the subject of unfavourable treatment regarding their access to employment or working conditions and that, in that light, the result pursued
by the Directive is substantive, not formal, equality.
80
Case C333/97 [1999] ECR I7243. See E Caracciolo di Torella, Childcare, employment
and equality in the European Community: first (false) steps of the Court (2000) 25 European
Law Review 310.
81
Para 31.
82
See Boyle, n 61 above, paras 313.
83
Lewen, n 80 above, para 23.

164 Community Social Legislation

applicable in so far as subparagraph (a) concerns rights linked to the
contract of employment of a female worker which must be assured in the
event of maternity leave. The Court ultimately found that as the bonus in
question was paid during parenting leave rather than maternity leave,
Directive 92/85 was inapplicable.84
Finally, two recent judgments regarding the application of the Directive
to workers on fixed-term contracts have revealed both its strengths and
weaknesses. In Tele Danmark85 a mobile telephone company dismissed
an employee after one month of a six-month fixed-term contract on the
grounds that she had not informed them that she was pregnant when she
was recruited and would not be able to perform a substantial part of her
contract. The Court referred to the uncertainty of fixed-term contracts and
held that Directive 92/85 makes no distinction as to the duration of the
employment contract.86 The Court observed that had the Community
legislature wished to exclude fixed-term contracts, which represent a
substantial proportion of employment relationships, from the scope of
these directives it would have done so expressly.87
In relation to the issue of dismissal, the Court referred to its established
case law on the Equal Treatment Directive, 76/207,88 whereby the dismissal
of a woman worker on account of pregnancy amounts to direct discrimination on grounds of sex,89 which is prohibited and cannot be justified
on grounds relating to, either the financial loss which an employer who
appointed a pregnant woman would suffer for the duration of her maternity leave90 and pregnancy,91 or because her presence is essential to the
proper functioning of the undertaking.92 Directive 92/85 adds a fresh
dimension because, if women were obliged to inform their employer of their
condition at the time of their recruitment, it could render ineffective the
protection of pregnant workers established by Article 10 even though the
Community legislature intended such protection to be especially high.93

84

Para 31.
Case C109/00, Tele Danmark A/S v Handels-og Kontorfunktionrernes Forbund i
Danmark [2001] ECR I6993.
86
Paras 323.
87
Para 33.
88
OJ 1976, L39/40.
89
Para 25. Contrary to Art 5(1) of Dir 76/207. See Case C179/88, Handels-og Kontorfunktionrernes Forbund i Danmark (Hertz) v Dansk Arbejdsgiverforening [1990] ECR
I3979, para 13; Case C421/92, Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband Ndb/Opf EV [1994] ECR I1657, para 15; and Case C32/93, Webb v EMO Air Cargo
[1994] ECR I3567, para 19.
90
Para 28. See Case C177/88, Dekker v Stitchting Vormingscentrum voor Jong
Volwassenen [1990] ECR I3941, para 12.
91
Ibid. See Case C207/98, Mahlburg v Land Mecklenburg-Vorpommern [2000] ECR
I549, para 29.
92
Para 29. See Case C32/93, Webb v EMO Air Cargo [1994] ECR I3567, para 26.
93
Para 24.
85

Taking Full Advantage of Article 118a EEC? 165

The Court also referred to the fact that the protection laid down in Article
10 was motivated by concern regarding the risk that a dismissal may pose
for the physical and mental state of pregnant workers including the
particularly serious risk that they may be encouraged to have abortions.94
Consequently, the two directives precluded a worker from being dismissed
on grounds of pregnancy where she was recruited for a fixed-term period
and had failed to inform her employer of her pregnancy, even though she
was aware of it at the time of her recruitment, and even in circumstances
where she was unable to work during a substantial part of the term of that
contract.95
In Jimnez Melgar,96 a judgment delivered on the same date by the same
Chamber,97 the Court held that Article 10 of Directive 92/85 protects
women who have a contract for an indefinite term as well as women on
fixed-term contracts.98 In a reference from a Spanish judge, the Court was
asked to consider the position of a pregnant woman who argued that the
non-renewal of her fixed-term contract by her employer, which had previously been renewed several times, was due to her pregnancy. The employer
denied that this was the case. Referring to the same case law on Directive
76/207, the Court found that, if the reason for non-renewal was connected
with her pregnancy this would be direct discrimination on grounds of sex,
regardless as to whether or not the contract had expired at the stipulated
time or the employer had acted unilaterally.99 However, in relation to Article
10 of Directive 92/85, the Court held that non-renewal of a fixed-term contract when it comes to the end of its stipulated term cannot be regarded as
a dismissal.100 Therefore, Mrs Jimnez Melgar was no longer a worker and
she would have to rely on Directive 76/207 to show that the refusal of the
employer to employ her, or renew her contract, was in fact motivated by
her state of pregnancy.101
The referring judge also asked the Court to determine the obligations
on the State, if any, in relation to the derogations in Article 10(1) allowing
for the dismissal of protected workers in exceptional cases not connected
with their condition. In its response, the Court found that this provision
does not impose any obligation on the Member States, in their national laws
and/or practices, to draw up a specific list of the reasons for dismissal in
those circumstances.102 Moreover, in reply to a separate question regarding

94
95
96
97
98
99
100
101
102

Para 26.
Para 34.
Case C438/99, Jimnez Melgar v Ayuntamiento de Los Barrios [2001] ECR I6915.
Delivered on 4 Oct 2001 by the Fifth Chamber.
Para 40.
Paras 414.
Para 45.
Para 46.
Paras 378.

166 Community Social Legislation

the procedures for consent to be given by a competent authority for such
dismissals, the Court found that, where no such procedures exist, as is the
case in Spain, Article 10(1) imposes no obligation on the Member State to
introduce them because the consent requirement is preceded by the
adverbial phrase where applicable .103
The Commission report and the case law arising from the Directive reveal
serious limitations in its scope and an element of confusion about its
purpose. Boyle and Lewen confirm that the minimum 14-week protected
period for paid maternity leave is guaranteed but there is no scope for
coverage beyond this period unless a Member State has introduced more
favourable provisions. Moreover, by referring to the special advantages of
women and the special relationship between mother and child, the Court
perpetuates an outdated stereotype of motherhood and consolidates the
idea of the traditional family where childcare is not shared equally between
the parents.104 As a result it is predominantly women who have to bear
the dual burden of work and care.105 The Court has failed to distinguish
between maternity leave, linked to pregnancy, and therefore unique to
women, and parent/child responsibilities that should be shared between
parents.106 This is a debate to which we shall return when we consider the
scope of the Parental Leave Directive adopted in 1996.107 In the meantime
it should also be noted that the link between payment and sickness has the
effect of limiting the meaning of pay and payment as shown in Lewen.
The Courts judgment in Pedersen does, however, indicate that the more
specific health and safety provisions offer greater scope for strict enforcement. It is noticeable that the Commission, while reporting wide discrepancies in respect of Articles 812, the maternity rights clauses, recommends
concerted action mainly in respect of the protective clauses in Articles 17.
By applying the Directive to fixed-term workers and other workers with
contracts of uncertain duration, the Court, in Tele Danmark and Jimnez
Melgar, has ensured that it will be broadly applied on the basis that the
duration of the employment relationship has no bearing on the extent
of the protection guaranteed to pregnant workers by Community law.108
Nevertheless, in the case of a dismissal during the course of a fixed-term
contract, or the non-renewal of a contract on grounds connected with
pregnancy, the main function of Article 10 is to complement the protection
afforded by the Equal Treatment Directive. Furthermore, Member States
103

Paras 5052.
See generally, McGlynn, n 67 above; Caracciolo di Torella (1999, Industrial Law
Journal) n 61 above at 281; and E Ellis, European Community Sex Equality Law, 2nd edn
(Clarendon Press, Oxford, 1998) p 242.
105
See T Hervey and J Shaw, Women, Work and Care: Womens Dual Role and Double
Burden in EC Sex Equality Law (1998) 8 Journal of European Social Policy 43.
106
See further, McGlynn, n 67 above at 40.
107
Dir 96/34/EC, OJ 1996, L145/4.
108
Tele Danmark, para 38.
104

Taking Full Advantage of Article 118a EEC? 167

are under no obligation either to stipulate the grounds permitted under
national law for exceptional dismissals or to provide a procedure for
consent to be granted for such dismissals. This suggests that the Court
places little value on national supervision of the derogations permitted
under the Directive and offers no real incentive for action in those Member
States where legal protection in this area is relatively weak. Moreover, the
Courts narrow approach to the concept of dismissal, for which there is
no reasoned support, reflects a desire not to interfere with national rules
concerning the creation and termination of the contract of employment or
employment relationship.109 Lastly, and perhaps most importantly, it opens
the door to abuse by certain employers who choose to employ workers,
who are often predominantly female, on a succession of fixed-term contracts, a practice that runs counter to the aims of the Directive on Fixedterm Work introduced in 1999.110
To conclude on Directive 92/85, it is clear that some advances have been
made, particularly with regard to tighter rules on health protection during
the period of a womans pregnancy and maternity. In this sense the Commission is justified in concluding that women covered by the Directive have
been provided with health and safety protection.111 When it comes to the
employment rights of women during pregnancy and maternity, however, the
Directive has been less successful and, as Fenwick explains, it fails to maintain a principle of protection from employment disadvantage.112 A price has
been paid for the compromises that were involved in securing the adoption
of the Directive under Article 118a EEC. By placing health protection first
and equality second, the outcome is wrongheaded. As a result the equality
objective has been subsumed by the health and safety rationale of Article
118a EEC. It is submitted that the Directive would have been much more
effective if it had been founded on the equality objective and based on the
substantive equality model.113 In this way a broad approach might have
been given to specific entitlements during the maternity period whereas
special protection would have been defined as narrowly as possible and

109

For further development of this point, see the next part of this chapter.
Dir 99/70, OJ 1999, L175/43. Clause 1(b) of the annexed Framework Agreement seeks
to establish a framework to prevent abuse arising from the use of successive fixed-term
employment contracts or relationships. For discussion, see ch 6.
111
COM(99) 100, p 22.
112
Fenwick, n 19 above at 75. See Fenwick and Hervey, n 40 above at 455.
113
Fenwick, n 19 above at 657. Fenwick defines a substantive equality approach, at 667,
as one which first redefines special treatment, and second seeks to extend both familyrelated entitlements and undeniably beneficial provisions to men, while confining the latter to
as narrow a scope as possible in so far as it is necessary for them to remain gender-specific.
Under this approach protective measures genuinely needed to protect the foetus would be
acceptable so long as they were framed in such a way as to be costless in terms of womens
employment opportunities: the principle should be that the risk, rather than the woman, should
be removed from the workplace.
110

168 Community Social Legislation

limited to genuine biological factors.114 Other issues such as parental leave,
not progressed in this period, and childcare, addressed only through a nonbinding recommendation,115 needed to be taken on board as part of a wider
family friendly agenda based on a sharing of responsibilities between
working parents.116 Recently the ILO has adopted a revised Maternity
Convention, which seeks to achieve precisely this objective by attempting
to unify the separate spheres of work and family.117 Such a bold step could
not, of course, be realistically contemplated during the period of the SEA,
where it was necessary to heavily emphasise the Directives protective
features to bring it within the ambit of Article 118a EEC and secure QMV,
but perhaps the Commission was too eager to achieve its Action Programme
targets regardless of the quality of the ensuing legislation and, in the
process, lost sight of the equality objective?

(2) Working Time

In chapter 3 we considered how the European Parliament, the Commission
and certain Member States, most notably Denmark, have developed an
ergonomic approach to the concepts of health, safety and the working
environment in Article 118a EEC. Ergonomics provides a foundation for
legislation that extends beyond the immediate physical environment of the
worker and, as the Court found in the Working Time case,118 embraces all
factors capable of affecting the health and safety of the worker in his/her
working environment. Such an approach is consistent with the all-encompassing definition of health laid down in the Constitution of the World
Health Organisation.119

114

Fenwick, ibid p 79.

Recommendation 92/241/EEC, OJ 1992, L123/16.
116
In the absence of such regulation there will be, as Kilpatrick notes, a twilight zone between
pregnancy provision, maternity provision and young child-care provision. See Kilpatrick in
Hervey and OKeeffe, n 19 above at 81. As Kilpatrick notes, also at 81, the Pregnancy and Maternity Directive is incapable of remedying this inadequacy in post-birth regulation because it is
based on a health and safety rationale. For further discussion on the family friendly agenda, see
E Caracciolo di Torella, The Family Friendly Workplace: the EC Position (2001) 17 International Journal of Comparative Labour Law and Industrial Relations 325.
117
ILO Convention No 183 of 2000; available at <http:/www.ilo.org>. For analysis, see J
Murray, The International Regulation of Maternity: Still Waiting for the Reconciliation of
Work and Family Life (2001) 17 International Journal of Comparative Labour Law and
Industrial Relations 25.
118
Case C84/94, United Kingdom v Council [1996] ECR I5755.
119
Health is defined in the preamble of the WHO Constitution, 1946, as a state of complete physical, mental and social well being that does not consist only in the absence of illness
or infirmity. Applied by the Court, ibid para 15.
120
Dir 93/104/EC concerning certain aspects of the organisation of working time, OJ 1993,
L307/18.
115

Taking Full Advantage of Article 118a EEC? 169

The Working Time Directive, 93/104120 [now revised by Directive
2000/34121] was the centrepiece of this approach. The Council, by using
Article 118a EEC as the vehicle to adopt the Directive, in line with the
proposal by the Commission,122 signalled a broad evolutionary approach
to health, safety and the working environment, as dynamic concepts, which
are not to be subordinated to purely economic considerations.123 By adopting this strategy, the Community was able to shift the emphasis of the Directive from the improvement of living and working conditions,124 to the right
of every worker to enjoy satisfactory health and safety conditions in his
working environment.125 The aim of the Directive, as simply stated in
Article 1(1), is to establish minimum safety and health requirements for
the organisation of working time. The Directive contains two elements outlined in Article 1(2):
(a) minimum periods of daily rest, weekly rest and annual leave, to breaks and
maximum weekly working time; and
(b) certain aspects of night work, shift work and patterns of work.

While the Directive bestows extensive rights on workers in relation to each

of these elements, it also allows for wide exclusions and derogations from
those rights. The core rights can be set out briefly as follows:
minimum daily rest of eleven consecutive hours per 24-hour period;126
a rest break where the working day is more than six hours. The duration
will be determined by a collective agreement or national legislation;127
weekly rest amounting to a minimum uninterrupted period of 24 hours
(in addition to daily rest).128 This will normally be calculated over a 14day reference period;129
121
Dir 2000/34/EC of the European Parliament and the Council amending Council Dir
93/104/EC concerning certain aspects of the organisation of working time to cover sectors and
activities excluded from the Directive, OJ 2000, L195/41. Discussed below.
122
COM(90) 317; followed by an amended proposal, COM(91) 130, OJ 1991, C124/8.
123
Fifth recital of the preamble. As Chalmers and Szyszczak have pointed out, this declaration highlights the lex specialis nature of Art 118a EEC as an independent source for the
development of social policy measures. See D Chalmers and E Szyszczak, European Union
Law Volume Two: Towards a European Polity? (Ashgate, Aldershot, 1998) p 495.
124
Community Charter of the Fundamental Social Rights of Workers (European Communities, Luxembourg, 1990) point 7.
125
Ibid point 19. All three points are referred to in the fourth recital of the preamble of the
Directive.
126
Art 3.
127
Art 4.
128
Art 5. The second paragraph of Art 5, allowing for the minimum rest period to include
Sunday, was annulled by the Court in Case C84/94, United Kingdom v Council [1996] ECR
I5755, para 37, on the grounds that there was no direct connection between this right and
the health and safety objectives of Art 118a EEC. Art 1(3) of the amending Dir 2000/34/EC,
OJ 2000, L 195/41, has now formally deleted this paragraph.
129
Art 16(1).

170

Community Social Legislation

maximum average weekly working time,130 including overtime, not

exceeding 48 hours.131 This will normally be calculated over a four-month
reference period;132
paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national
legislation and/or practice;133
night work134 not exceeding an average of eight hours in any 24-hour
period.135 National law or collective or other industry agreements will
determine the reference period.136
Other provisions grant night workers a right to a free health assessment
and transfer to day work if they suffer from health problems;137 and, more
generally, allow for an adaptation of work patterns with a view to alleviating monotonous work and work at a pre-determined work rate, especially
by allowing for breaks during work time.138 The idea behind these provisions is that work should be adapted to the worker, leading to a more
humanised workplace.139
From a cursory review of these provisions, particularly Articles 313, it
would appear that the Directive, by securing a maximum 48-hour working
week and a minimum four-weeks paid annual leave, largely fulfilled two of
the Communitys most treasured outstanding social policy goals.140 Such a
conclusion would be premature. In particular, Article 1(3) in its original
form is double-edged. On the one hand, the Directive applies to all sectors
130
Art 2(1) defines working time as: any period during which the worker is working, at
the employers disposal and carrying out his activities or duties, in accordance with national
laws and/or practice. Working time and rest periods are mutually exclusive for a rest period
is any period which is not working time.
131
Art 6.
132
Art 16(2).
133
Art 7(1). Further, Art 7(2) provides that the period of paid annual leave may not be
replaced by an allowance in lieu, except where the employment relationship is terminated.
134
Art 2(3) defines night time as any period of not less than seven hours, as defined by
national law, and which must include in any case the period between midnight and 5 a. m.
Art 2(4) defines a night worker as: (a) on the one hand, any worker, who, during night time,
works at least three hours of his daily working time as a normal course; and (b) on the other
hand, any worker who is likely during night time to work a certain proportion of his annual
working time, as defined at the choice of the Member State concerned: (i) by national legislation, following consultation with the two sides of industry; or (ii) by collective agreements
or agreements concluded between the two sides of industry at national or regional level.
135
Art 8.
136
Art 16(3).
137
Art 9. Arts 1012 provide additional protection for night workers and shift workers.
138
Art 13.
139
On this point, see B Bercusson, Working Time in Britain, Towards a European Model,
Part I (Institute of Employment Rights, London, 1993); A Supiot, Beyond Employment:
Changes in Work and the Future of Labour Law in Europe (OUP, Oxford, 2001) ch 3.
140
For example, a Council Recommendation of 1975 had endorsed the principle of a
maximum 40-hour working week and a minimum four week annual paid holiday: Recommendation 75/457/EEC, OJ 1975, L199/32.

Taking Full Advantage of Article 118a EEC? 171

of activity, both public and private. As with the framework Directive,
89/391, the Working Time Directive refers to rights for workers in general,
although in practice the operative definition, derived from the framework
Directive, is rather narrow.141 On the other hand, specified sectors, air, rail,
road, sea, inland waterway and lake transport, sea fishing and other work
at sea, were excluded altogether along with the activities of doctors in
training. As we shall see below, it was precisely because of these exclusions
that it became necessary for the Commission to launch a package of proposals in 1998 to cover the sectors and activities excluded by Article 1(3)
in order to extend the coverage of the Directive.142
Moreover, Article 17 allows Member States derogations from certain
provisions arising from the activities of particular workers and the conditions under which they work. First, a derogation may be applied for workers
whose working time is not measured and/or predetermined or can be determined by the workers themselves, from all of the main provisions except
paid annual leave.143 Article 17(1) specifically refers to managing executives
or other persons with autonomous decision-taking powers, family workers
and workers officiating at religious ceremonies.144 Although this list is not
exhaustive, it is, in the view of the Commission, to be interpreted restrictively.145 Secondly, Article 17(2) provides for further derogations concerning
the provisions on rest periods, night work and the reference period for the
calculation of weekly rest and maximum working time,146 applicable to a
wide range of other sectors and activities covered by the Directive.147 Where
141
Art 3 of Dir 89/391 defines a worker as any person employed by an employer, including trainees and apprentices but excluding domestic servants. According to the Commission
the great majority of Member States have applied their legislation to traditional employees
working under a contract of employment as defined by national legislation and practice. In
the UK, by contrast, the Commission note that the regulations have been extended to workers
performing contracts for services. See COM(2000) 787, p 5.
142
COM(1998) 662. Three Directives have now been adopted. First, Dir 99/63/EC
concerning the Agreement on the organisation of working time of seafarers concluded by the
European Community Shipowners Association (ECSA) and the Federation of Transport
Workers Unions in the European Union (FST), OJ 1999, L167/33. Secondly, the amending Dir,
2000/34/EC, OJ 2000, L195/41. Thirdly, Dir 2000/79/EC concerning the European Agreement
on the Organisation of Working Time of Mobile Workers in Civil Aviation concluded by the
Association of European Airlines (AEA) the European Transport Workers Federation (ETF)
the European Cockpit Association (ECA) the European Regions Airline Association (ERA) and
the International Air Carrier Association (IACA), OJ 2000, L302/57.
143
The exclusion may cover Arts 3, 4, 5, 6, 8 or 16.
144
Art 17(1) of Dir 93/104.
145
See the Commissions implementation report: COM(2000) 787, p 3.
146
Arts 3, 4, 5, 8 and 16.
147
By virtue of Art 17(2.1) these activities include, inter alia: (a) . . . where the workers
place of work and his place of residence are distant from one another or where the workers
different places of work are distant from one another; (b) . . . security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly
security guards and caretakers or security firms; (c) in the case of activities involving the need
for continuity of service or production, particularly: (i) services relating to the reception, treatment and/or care provided by hospitals or similar establishments, residential institutions and

172

Community Social Legislation

these derogations are applied, the workers concerned must be afforded

equivalent periods of compensatory rest or where, in exceptional cases, it
is not possible, for objective reasons, to grant such equivalent periods of
compensatory rest, the workers concerned must be afforded appropriate
protection.148 Thirdly, by virtue of Article 17(3), variations from the provisions referred to in Article 17(2)149 can also be applied to other groups of
workers within the scope of the Directive by means of collective agreements
or other agreements concluded by the two sides of industry, subject to the
same requirements for compensatory rest and appropriate protection
where that is not possible.150
The Directive carries a sting in its tail. Not only do the final provisions
allow for a generous three-year period for implementation,151 and phasingin of the paid annual leave provisions over a further three years,152 but also,
most controversially, Article 18(1)(b)(i) grants Member States the option of
introducing a voluntary opt-out for individual workers from the maximum
weekly working time provisions in Article 6. The workers concerned must
formally agree to work longer hours following a request by the employer.
Any worker unwilling to work longer hours must not be subjected to any
detriment by the employer. The employer must also maintain records of the
working hours of these workers and the competent authorities may, for
health and safety reasons, prohibit or restrict the possibility of exceeding
the maximum weekly working hours. In practice these safeguards may only
provide very limited protection against coercive practices in sectors where
low pay and long, often unsociable, hours are the norm.
prisons; (ii) dock or airport workers; (iii) press, radio, television, cinematographic production,
postal and telecommunications services, ambulance, fire and civil protection services; (iv) gas,
water and electricity production, transmission and distribution, household refuse collection
and incineration plants; (v) industries in which work cannot be interrupted on technical
grounds; (vi) research and development activities; (vii) agriculture; (d) where there is a foreseeable surge of activity, particularly in: (i) agriculture; (ii) tourism; (iii) postal services. Under
Art 17(2.2) these derogations can also be applied in the event of unusual or unforeseeable
circumstances beyond the employers control, or due to exceptional events, as defined by Art
5(4) of the framework Dir 89/391, or in the case of accident or imminent risk of accident. Art
17(2.3) provides for further derogations from the daily or weekly rest periods in Arts 3 and
5 in the case of shift workers who are unable to take breaks between shifts and in respect of
work, such as cleaning, where activities are split up over the day.
148
Art 17(2).
149
Arts 3, 4, 5, 8 and 16.
150
Art 17(3). Also subject to the requirement for equivalent compensating rest periods.
151
Art 18(1)(a). Until 23 Nov 1996. See the Commissions report of 1 Dec 2000 on the
state of implementation of the Directive, where the Commission noted that only Germany,
Sweden, Finland, Spain and the Netherlands notified them of their national measures by the
date of implementation: COM(2000) 787, p 2. Successful legal action has been brought against
France and Italy for failing to implement the Directive on time. See Case C46/99, Commission v France [2000] ECR I4379; and Case C386/98, Commission v Italy [2000] ECR
I1277.
152
Art 18(1)(b)(ii). The paid annual leave entitlement in this period was a minimum of three
weeks.

Taking Full Advantage of Article 118a EEC? 173

The Commissions implementation report reveals that only the UK,
the instigator of the clause, has chosen to take advantage of Article
18(1)(b)(i).153 Under the final paragraph of that provision, a review must
be conducted before seven years have expired, by 23 November 2003 at
the latest. At that time the Council will decide what action, if any, to take
on the basis of a Commission proposal accompanied by an appraisal report.
Perhaps surprisingly, the Commission has not included any statistics in its
implementation report on the number of workers in the UK who have
agreed to work beyond the maximum weekly hours deemed appropriate
for the protection of their safety and health at work. This might suggest
that the individual opt-out mechanism will continue for an indefinite period.
More recently, however, the Commission has issued the UK with an initial
warning letter regarding, inter alia, the way in which voluntary working
time is measured.154
With the exception of the provisions on paid annual leave, Directive
93/104, is a decidedly weak and rather complex piece of legislation severely
circumscribed by limitations and derogations which, at the time of its adoption, satisfied neither the main supporters of Community regulation in this
field, notably the European Parliament, nor its principal detractor, the
UK, which, having secured substantial amendments from the Commissions
original proposal, abstained in the Council vote and then proceeded
to lodge annulment proceedings. These proceedings were ultimately
unsuccessful, not only because Article 118a EEC was deemed to be the
correct legal base,155 but also the Directive was held to have satisfied the
procedural requirements for its adoption and was found to be consistent with
the principles of subsidiarity and proportionality.156
Pressure to extend the Directive and override its limitations was immediate. Indeed, within a year of its implementation, the Commission
responded to demands to widen the Directives scope by publishing a White
Paper concerning the excluded sectors and activities.157 The Commission
reported that an estimated 5.6 million workers were potentially excluded
from the coverage of the Directive,158 although in practice only the UK and

153

COM(2000) 787, p 17.

On 21 March 2002. This letter marks the first stage in possible infringement
proceedings under Art 226 EC [ex 169 EEC]. The Commissions action is a direct response
to a complaint from Amicus, a British trade union. For further details, see:
<www.incomesdata.co.uk>.
155
Case C84/94, United Kingdom v Council [1996] ECR I5755. For full discussion, see
ch 3.
156
See further, Barnard et al, n 18 above; and J Kenner, A Distinctive Legal Base for Social
Policy?The Court of Justice Answers a Delicate Question (1997) 22 European Law
Review 579.
157
White Paper on Sectors and Activities Excluded from the Working Time Directive,
COM(97) 334.
158
Ibid para 18.
154

174 Community Social Legislation

Greece have excluded all of the named sectors and activities from the scope
of their national implementing measures.159 Many other workers have
restricted rights to the provisions on rest periods, weekly working time and
night work.160 Moreover, the excluded and restricted sectors and activities
include areas, such as transport and health care, where there is an above
average likelihood of danger and accidents resulting from, or connected
with, insufficient rest and excessive working hours. Indeed, as the Commission has pointedly noted:161
Thus the exclusions were considered by the Council to be directly related to the
type of work involved, and not because of any suggestion that health and safety as
regards working time was sufficiently protected in these sectors and activities. A
common feature of all these sectors, apart from doctors in training, is that key
workers typically are required to spend time away from home as an integral part
of their duties.

In other words, while the rhetoric of the preamble indicated that health and
safety requirements would not be subordinated to economic considerations,
the reality was deeply ambiguous. The Directive needed to be flexible to
take account of specific groups of workers spending time away from home,
but it was not necessary to exclude whole sectors en bloc. The test should
relate to the nature of the activity and not to the sector in which the
employee works.162
In the White Paper the Commission considered the options of either a
vertical approach, proposing a specific directive for each of the excluded
sectors, or a horizontal approach, extending the existing Directive to all
sectors. The Commission concluded that there should be a combination of
these methods allowing for Community-wide sectoral agreements to be
negotiated by the social partners on a case-by-case basis. After lengthy
negotiations between the Council and the European Parliament, a highly
complex amendment to the Directive was adopted on 22 June 2000163 with
an implementation date of 1 August 2003.164
The amending Directive, 2000/34, adopted under the successor provision,
Article 137(2) EC, is concerned specifically with health and safety protection
for workers in sectors or activities excluded from Directive 93/104. Therefore, the health and safety rationale remains paramount notwithstanding the
159
See the Commissions implementation report: COM(2000) 787, p 5. In the Commissions view (p 26) this is inappropriate because some of these categories fall within the partial
exclusions permitted by Article 17(1).
160
In the implementation report the Commission note that in some cases the scope of
national measures in respect of the derogation in Art 17(1) may have extended beyond the
scope of the derogation. Ibid p 26.
161
COM(97) 334, para 13. Emphasis added.
162
Ibid para 14.
163
Dir 2000/34/EC, OJ 2000, L195/41. For the Commission proposal, see OJ 1999, C43/1.
164
Art 2(1).

Taking Full Advantage of Article 118a EEC? 175

broadening of the legal bases by Article 137 EC. Seafarers are excluded from
the amended Directive because they are covered by separate measures.165
Road transport is also subject to other arrangements.166 In relation to the
other excluded sectors, the Directive seeks to distinguish between mobile
and non-mobile workers. Any worker in these sectors who is deemed to be
non-mobile is entitled to the full set of rights under Directive 93/104: rest
periods, breaks, maximum working time, limits on night work and annual
leave. By contrast mobile workers, defined as travelling or flying personnel167 employed by an undertaking which operates transport services for
passengers or goods by road, air168 and inland waterways, are only entitled
to the average 48-hour maximum working week and four weeks paid annual
leave.169 There are additional limitations on the entitlements of workers in
the railway sector,170 offshore installations171 and sea-fishing.172
The second part of the amended Directive addresses the activities of
trainee doctors. Although trainee doctors will eventually be put in the same
165
The first measure is: Dir 99/63/EC concerning the Agreement on the organisation of
working time of seafarers concluded by the European Community Shipowners Association
(ECSA) and the Federation of Transport Workers Unions in the European Union (FST), OJ
1999, L167/33. This Directive gives legislative effect, for the first time, to a sectoral agreement between management and labour. It is based on ILO Convention No 180 on seafarers
hours of work. See also, Commission Recommendation 99/130/EC on ratification of ILO Convention 180 concerning seafarers hours of work and the manning of ships, and the ratification of the 1996 Protocol to the 1976 Merchant Shipping (minimum standards) Convention,
OJ 1999, L43/9. Dir 99/63/EC was swiftly followed by: Dir 99/95/EC, OJ 2000, L14/29, which
applies to seafarers hours of work on board ships using Community ports.
166
There are separate regulations limiting the working hours of lorry drivers predating Dir
93/104. These include: Reg 3820/85/EEC, OJ 1985, L370/1, on the harmonisation of certain
social legislation relating to road transport; Reg 3821/85/EEC, OJ 1985, L371/8, on recording equipment in road transport; and Dir 88/599/EEC, OJ 1988, L325/55, on standard checking procedures on recording equipment in road transport. See further, C Barnard, EC
Employment Law, 2nd edn (OUP, Oxford, 2000) pp 41718.
167
Art 1(2) of Dir 2000/34 inserting a new Art 2(7) of Dir 93/104.
168
There is now a separate Directive covering mobile workers on airlines which is intended
to take precedence over the amended provisions concerning that sector: Dir 2000/79/EC concerning the European Agreement on the Organisation of Working Time of Mobile Workers
in Civil Aviation concluded by the Association of European Airlines (AEA) the European
Transport Workers Federation (ETF) the European Cockpit Association (ECA) the European
Regions Airline Association (ERA) and the International Air Carrier Association (IACA), OJ
2000, L302/57.
169
Incorporated by Art 1(7) into the new Art 17a of Dir 93/104. Workers concerned with
the carriage of passengers on regular urban transport services are also specifically included
within this categoryArt 17(2.1)(c)(viii) as amended by Art 1(5).
170
Art 1(5) adds a new paragraph (e) to Art 17(2.1) which allows for the derogations therein
to be applied to workers in railway transport: whose activities are intermittent; who spend
their working time on board trains; or whose activities are linked to transport timetables and
to ensuring the continuity and regularity of traffic. Mobile workers in the rail sector are also
covered by a separate agreement between management and labour. See European Industrial
Relations Review, June 2000, pp 1417.
171
Art 1(5) amending Art 17a and 17(2.1)(a). The definition of offshore work is contained
in the new Art 2(8) of Dir 93/104.
172
Art 17b inserted by Art 1(7).

176 Community Social Legislation

position as mobile workers,173 they will not receive the benefit of the
maximum working week until after the expiry of a transitional period
during which the reductions in working hours will be phased in.174 Over
a five-year period expiring on 1 August 2009, their average maximum
working week will be reduced from 58 to 52 hours. Extensions of the transitional period for up to three further years may also be permitted where
justified on the grounds of the organisation and delivery of health care and
special difficulties in meeting these responsibilities. Therefore the average
48-hour working week is unlikely to be a reality for trainee doctors until
August 2012.
The Court has issued three judgments on the scope of Directive 93/104.
In the first case, SIMAP,175 the central issue was the meaning of the term
working time in Article 2(1). Under that provision, working time is
defined as any period during which the worker is working, at the
employers disposal and carrying out his activity or duties, in accordance
with national laws and/or practice. SIMAP represented Spanish doctors
who were required to work lengthy hours on call either when at a primary
care centre or when elsewhere. In its judgment, the Court adopted an expansive interpretation of the concept of working time. First of all, the Court
confirmed that the concepts of working time and rest periods were mutually exclusive in the scheme of the Directive.176 It was held that the characteristic features of working time were present in the case of time spent
on call by doctors in primary care teams where their presence at the health
centre was required. Moreover, even if the activity actually performed
varied according to the circumstances, the fact that the doctors in question
were obliged to be present and available at the workplace with a view
to providing their professional services meant that they were carrying out
their duties in that instance.177 Such an interpretation is in conformity with
the objective of the Directive, which is to ensure the safety and health of
workers by granting them minimum periods of rest and adequate breaks.
To exclude duty on call from working time if physical presence is required
would seriously undermine that objective.178 However, the situation was different in situations where the doctors were on call by being contactable at
all times without having to be at the health centre. In those circumstances,
even if they were at the disposal of their employer, in the sense that it would

173

Art 17(2.1)(c)(i) as amended by Art 1(5).

Art 1(6) adds a new Art 17(2.4) containing these provisions.
175
Case C303/98, Sindicato de Mdicos de Asistencia Pblica (SIMAP) v Conselleria de
Sanidad y Consumo de la Generalidad Valenciana [2000] ECR I7963. For discussion, see
J Fairhurst, SIMAPInterpreting the Working Time Directive (2001) 30 Industrial Law
Journal 236.
176
Para 47.
177
Para 48.
178
Para 49.
174

Taking Full Advantage of Article 118a EEC? 177

be possible to contact them, the doctors concerned were managing their
time with fewer constraints and pursuing their own interests. In these cases
only time linked to the actual provision of primary care services was to be
regarded as working time within the meaning of the Directive.179 In addition, it does not matter whether the time worked on call is classified as
overtime because overtime falls within the concept of working time for
the purposes of the Directive which draws no distinction according to
whether or not such time is spent within normal hours of work.180
In the second case, BECTU,181 the Court was asked to consider the scope
of Article 7 entitling workers to a minimum period of at least four weeks
paid annual leave. Unlike other rights in the Directive, the right to paid
leave, for those workers within the scope of the Directive,182 is not subject
to any specified derogations. Rather it must be granted, under Article 7(1)
in accordance with the conditions for entitlement to, and granting of, such
leave laid down by national legislation and/or practice. BECTU, an entertainment workers union, challenged the UKs implementing regulations
which restricted the right to paid leave by applying a qualifying period of
13 weeks with the same employer before entitlement arose. Because of the
short-term working arrangements commonly found in the entertainment
industry many BECTU members were caught by this condition and lost
their right to paid annual leave for these periods of employment. AG
Tizzano advised that the right to paid annual leave is a fundamental right183
not subject to any exceptions. In its judgment, the Court ruled in favour of
BECTU, emphasising that the Directive, although based only on Article
118a EEC, maintained its originally conceived purpose, sourced from the
Social Charter,184 of laying down minimum requirements to improve the
living and working conditions of workers.185 Furthermore, the Directive
does not distinguish between workers employed under a contract of
indefinite duration and those employed under a fixed-term contract.186
Therefore it follows that:187
179

Para 50.
Para 51.
181
Case C173/99, R v Secretary of State for Trade and Industry, ex parte Broadcasting,
Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I4881.
182
Subject to the exclusions in Art 1(3) of the Directive prior to its amendment. See Case
C133/00, Bowden and others v Tuffnells Parcels Express Ltd [2001] ECR I7031, discussed
below.
183
At paras 2728 of his Opinion in BECTU, the AG referred specifically to Art 31(2) of
the EU Charter of Fundamental Rights, OJ 2000, C 364/1, which guarantees every worker
a right to paid annual leave, concluding that the Charter is the most reliable and definitive
confirmation of the fact that the right to paid annual leave constitutes a fundamental right.
For further discussion, see ch 12.
184
Para 39. The Court referred specifically to points 8 and 19 of the Social Charter.
185
Para 37.
186
Para 46.
187
Para 47.
180

178 Community Social Legislation

. . . paid annual leave of . . . four weeks [after the expiry of the transitional period]
constitutes a social right directly conferred by that directive on every worker as the
minimum requirement necessary to ensure protection of his health and safety.

By imposing a precondition for entitlement to paid annual leave, which had

the effect of preventing certain workers from any such entitlement, the UKs
legislation not only negated an individual right expressly granted by the
Directive, but also was contrary to its objective.188 The scheme of the Directive, including the variations to the working time arrangements permitted
under Article 17, allowed for no derogations from the right to paid leave.189
Moreover, such legislation was likely to give rise to abuse because employers might be tempted to evade the obligation to grant the paid annual leave
to which every worker is entitled by more frequent resort to short-term
employment relationships.190 Hence, although Member States are free to lay
down conditions for the exercise and implementation of the right to paid
annual leave, by prescribing the specific circumstances in which workers
may exercise that right, they are not entitled to make the existence of that
right, which derives directly from the Directive, subject to any preconditions whatsoever.
Equally significant was the Courts rationale for rejecting the UKs two
main arguments in defence of its legislation. First, the UK contended that
other Member States also made the exercise of the right to paid leave conditional in their legislation. The Court swiftly dispensed with this argument
on the basis that it was not a defence to rely on the fact that other Member
States were in breach of their obligations.191 Secondly, the UK considered that
the qualifying period was consistent with the need to avoid imposing excessive constraints on small and medium-sized enterprises (SMEs), in accordance with Article 118a(2) EEC [now 137(2) EC], on the basis that SMEs
would find the administrative costs of organising annual leave for staff
engaged for short periods particularly difficult to bear.192 The Courts
response was to rule that these conditions were of general application and
therefore not explicitly targeted at SMEs.193 Moreover, while the Directive
took account of the needs of SMEs,194 in accordance with the preamble,
the improvement of workers safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations.195

188

Para 48.
Para 50.
Para 51.
191
Paras 5456. See Case C146/89, Commission v United Kingdom [1991] ECR I3533,
para 47.
192
Para 57.
193
Para 58.
194
Para 60. See also, Case C84/94, United Kingdom v Council [1996] ECR I5755, para
44.
195
Para 59. Fifth recital of the preamble.
189
190

Taking Full Advantage of Article 118a EEC? 179

The Court concluded that the UKs argument was incontestably based on
such a consideration.196
In Bowden,197 the third case arising from the Directive, the Court has
added a rider to the BECTU ruling. While BECTU points to the universality of the right to paid leave for every worker, the Court in Bowden
reminds us that Article 1(3) of the Directive excludes many sectors and
activities, a position that will only be partially rectified by Directive
2000/34. Bowden, also a reference from the UK, concerned the position of
part-time clerical workers at a road transport depot with no contractual
entitlement to holidays with pay. In fact the firms van drivers were not
allowed into their offices and had no contact with them. Further, under their
contracts, the clerical workers could not be asked to work in actual transport operations. The national court was concerned that a literal interpretation of Article 1(3)excluding all workers in the transport sectorwould
run counter to the objectives of the Directive and the Social Charter, which
were based on protection of the worker rather than the activities of the
employer.198 However, the Court was satisfied that the effect of Article 1(3)
and the Councils clear intention, was to exclude all workers in the road
transport sector including office staff irrespective of their activities.199
Indeed it was precisely for this reason that the Commission had published
its White Paper and the Council had agreed to new legislation.200 The Court,
conscious of the separate role of the Community legislator, was not prepared to override its remit by subverting Article 1(3) even though the
workers in question, whose work was indistinguishable from many others
covered by the Directive, were denied their social right to paid leave, at
least for the time being.201
To conclude, Directive 93/104 represents, at best, a hesitant first step
towards establishing minimum requirements concerning working time
arrangements. Such is the flexibility in the system, however, that observance
of the maximum working week requirements is difficult to monitor. As the
Commission note in the implementation report, the structure of national
legislation in several Member States differentiates between regular working
time and overtime without setting an absolute limit over a given reference
period.202 The Commission also found considerable variations in the
196
Ibid. The UK has responded swiftly to the judgment by introducing the Working Time
(Amendment) Reg 2001 (SI 2001/3256) effective from 29 Oct 2001, which gives workers a
right to paid annual leave from their first day of employment, and a corresponding right to
compensation for any untaken leave on termination of employment. Available at:
<www.legislation.hmso.gov.UK>.
197
Case C133/00, Bowden and others v Tuffnells Parcels Express Ltd [2001] ECR I7031.
198
Paras 235.
199
Paras 39 and 44.
200
Para 43.
201
Until August 2003, the implementation date of Dir 2000/34.
202
COM(2000) 787, p 26.

180 Community Social Legislation

regulation of night work and related overtime rules.203 In addition, the
Courts ruling in SIMAP highlights a need to tighten up methods of calculating working time, particularly where workers are on call or working
overtime.
Further difficulties arise when a worker has two or more concurrent
employment relationships, a situation not expressly provided for in the
Directive. The Commission have called on Member States to introduce
appropriate measures to ensure that the provisions on working time and
rest periods are observed where there are concurrent employment relationships as such working arrangements are becoming increasingly common.204
Moreover, the provisions on working time, which were modified in order
to try to garner the support of the UK, ultimately unsuccessfully, are so
severely compromised by exclusions, derogations, and delaying provisions,
that any positive effect has been rendered almost nugatory. As Supiot205 has
observed, the Directive is positively schizophrenic, its first part . . . establishes rules which the second part . . . immediately sets out to drain of any
binding effect. On a qualitative assessment, the working time provisions in
the Directive provide limited benefits and, partly due to their opacity, fail
to provide uniform exercisable rights for workers.
By contrast, the Directives guarantee of a minimum four weeks paid
annual leave, strongly reinforced as a social right for every worker in
BECTU, is an important and, in many Member States, a novel right.
Further, by stressing that the health and safety objective is not to be subordinated by economic considerations, the Court has transmitted a powerful message about the autonomy of Article 118a EEC [and now 137 EC]
and its distinctive contribution as part of the Communitys explicit social
objectives which operates in harness with, but not dependent upon, the economic imperatives of the internal market programme. Moreover, the right
to paid annual leave is transparent, easily understood and offers tangible
benefits for workers within the scope of the Directive with no room
for derogations or, following BECTU, preconditions. Even in this case,
however, as Bowden has graphically revealed, flaws in the drafting of Article
1(3) have caused blatant unfairness. The amended Directive, and the whole
patchwork quilt of protection offered by the accompanying sectoral measures, adds up to a far from seamless transition with much inconsistency
remaining.
The wider significance of the Directive lies with its evolutionary
approach. Over time there is further potential for gradual improvements in
the legal regulation of working time at national and Community levels. The
203

COM(2000) 787, p 27.

Ibid p 26.
205
A Supiot, On the Job: Time for Agreement (1996) 12 International Journal of
Comparative Labour Law and Industrial Relations 195 at 195.
204

Taking Full Advantage of Article 118a EEC? 181

Directive may also be regarded as ahead of its time. Operating in an inherently pliable fashion, by allowing for variation of several of the minimum
standards through collective agreements, it demonstrates an essential
feature of flexibility and adaptability in the workplace that takes account
of the fact that there is no longer a straightforward distinction between time
spent at work and leisure time.206 In turn, the adoption of the Directive
has helped to foster discussion on the potential contribution that any reduction and reorganisation of working time can make to job creation and
redistribution of jobs as part of the Communitys strategy to reduce
unemployment.207

(3) Young Workers

A third Directive introduced under Article 118a EEC, on the protection of
Young Workers, 94/33,208 was founded on a range of commitments contained in points 20 and 22 of the Social Charter concerning the working
age of children and the protection of young people at work. Additional
sources were a European Parliament Resolution on child labour209 and,
although not directly cited, Article 7 ESC on the right of children and young
persons to protection, Article 32 of the UN Convention on the Rights of
the Child, and ILO Convention No 138.210 As with the Working Time
Directive, the broad objectives of the Charter were made to fit the health
and safety rationale of Article 118a EEC and the overall scheme of the
framework Health and Safety Directive.
The preamble of the Young Workers Directive identifies children and
adolescents as specific risk groups211 and proclaims that measures must
be taken with regard to their health and safety. Maximum working time
of young people should be strictly limited and night work should be
prohibited, subject to the exemption of certain jobs specified by national
206

See generally, Supiot, ibid.

See in particular, the Opinion of the Economic and Social Committee on Working Time,
Brussels, 2425 Oct 1995, CES 1166/95. See also, the Opinion of AG Lger in Case C84/94,
United Kingdom v Council [1996] ECR I5755, who, at para 92, concludes that examination
of the Directive shows that it does not, in itself, constitute a measure to combat unemployment. However, the debate that it has engendered has helped to revive the ideas behind a
Council Resolution of 18 Dec 1979 on the adaptation of working time (OJ 1980, C2/1). In
its Resolution the Council stressed that any measures to adapt working time should be
assessed [with a view to improving the employment situation].
208
Dir 94/33/EC, OJ 1994, L216/12.
209
OJ 1987, C190/44.
210
The Directive sets the same age limits of 15 and 18 as the ILO Convention. See also
Convention No 90 on the night work of young persons. Both measures were adopted in a
more simplified form at the first session of the ILO in 1919. See Valticos and von Potobsky,
n 50 above, pp 21626.
211
Seventh recital of the preamble.
207

182

Community Social Legislation

legislation or rules.212 More generally, the Directive places a duty on Member

States to ensure that employers guarantee that young people have working
conditions which suit their age213 so as to facilitate the transition from
childhood to adult life.214 It is therefore regarded as essential that young
people are protected against economic exploitation and . . . any work likely
to harm their safety, health or physical, mental, moral or social development or to jeopardise their education.215 The scheme of the Directive is to
secure these objectives by providing stronger protection for young people
under 18216 in respect of working time,217 night work,218 rest periods219 and
rest breaks,220 while banning child labour for under 15s.221 There is also a
range of obligations on employers to carry out risk assessments when young
people begin work and when there is any change in their working conditions.222 Finally, Member States must ensure that young people are protected from any specific risks to their development that are a consequence
of their lack of experience, of absence of awareness of existing or potential
risks, or of the fact that young people have not fully matured.223 This will

212

Fifteenth recital.
Art 1(3).
214
Ninth recital.
215
Art 1(3).
216
In Art 3 the Directive defines (a) a young person as any person under 18 years of age;
(b) a child as a young person under 15 years of age; and (c) an adolescent as a young person
over 15 and under 18.
217
Art 8(2) limits the working time of adolescents to eight hours a day and 40 hours a week
subject to derogationssee below. Time spent on training is counted as working time (Art
8(3)). In addition, when more than one employer employs a young person working time and
working days shall be cumulative (Art 8(4)).
218
Art 9(1)(b) prohibits adolescents from working between 10 p.m. and 6 a.m. or 11 p.m.
and 7 a.m., again subject to derogationssee below.
219
The minimum rest periods for adolescents are 12 consecutive hours for each 24-hour
period, Art 10(1)(b) and two days for each seven-day period, Art 10(2)subject to derogations, see below.
220
Art 12 provides for a minimum rest break for young people of 30 minutes every
four and a half hours. The rest break shall be consecutive if possible. This clause is not subject
to any derogation except, in the case of adolescents, in the event of force majeuresee
below.
221
Art 1(1) and 4.
222
Art 6(2). The following points must be given particular attention: (a) the fitting-out and
layout of the workplace and the workstation; (b) the nature, degree and duration of exposure
to physical, biological and chemical agents; (c) the form, range and use of work equipment,
in particular agents, machines, apparatus and devices, and the way in which they are handled;
(d) the arrangement of work processes and operations and the way in which these are
combined (organisation of work); (e) the level of training and instruction given to young
people.
223
Art 7(1). Art 7(2)see belowprohibits work which is likely to entail specific risks
for young people within the meaning of Art 7(1) including: work involving harmful exposure
to the physical, biological and chemical agents listed in point I of the Annex to the Directive
(the Annex contains a non-exhaustive list of agents, processes and work); and/or processes
and work referred to in point II of the Annex.
213

Taking Full Advantage of Article 118a EEC? 183

mean in practice that certain forms of employment for young people will be
prohibited in accordance with criteria laid down in Article 7(2).224
As with the Working Time Directive, the derogations are of as much interest and, inevitably, subject to more controversy than the intrinsic rights
granted by the Directive. Any Member State can utilise a wide range of
derogations. First, there is an option for Member States to have a general
exclusion from the Directive for occasional work or short-term work
involving domestic service in a private household or work regarded as not
being harmful, damaging or dangerous to young people in a family undertaking.225 This exemption, although justified in a Commission Memorandum,226 with visions of grape picking and crop harvesting,227 also evokes
less comfortable Dickensian imagery of domestic exploitation of children.
Secondly, there are limited exemptions allowing children to carry out vocational training,228 light work229such as delivering newspapers and
babysittingand, more generally, cultural, artistic, sports or advertising
activities.230 Thirdly, the maximum working time for adolescents of eight
hours a day and 40 hours a week is subject to derogations where there
are objective grounds for so doing in accordance with national rules.231

224
Prohibited work includes: (a) work which is objectively beyond young peoples physical
or psychological capacity; (b) work involving harmful exposure to agents which are toxic, carcinogenic, cause heritable genetic damage, or harm to the unborn child or which in any other
way chronically affect human health; (c) work involving harmful exposure to radiation; (d)
work involving the risk of accidents which it may be assumed cannot be recognised or avoided
by young persons owing to their insufficient attention to safety or lack of experience or training; or (e) work in which there is a risk to health from extreme cold or heat, or from noise
or vibration. Derogations from the above may be authorised in the case of adolescents where
the work in question is indispensable for their vocational training subject to health and safety
protection.
225
Art 2(2).
226
COM(91) 543.
227
See Barnard, n 166 above, p 421.
228
Under Art 4(b) children of at least 14 years of age may be allowed to work under a combined work/training scheme or an in-plant work-experience scheme, provided that such work
is done in accordance with the conditions laid down by the competent authority. This derogation, along with Article 4(c) below, operates in accordance with strict limits on working
time and arrangements for attendance at school laid down in Art 8(1); night work, specified
in Art 9(1); rest periods, in Art 10(1)(a) and 10(2); and annual rest, Art 11.
229
Art 4(c). This applies to 14 year olds and also, more restrictively, to 13 year olds for a
limited number of hours per week in the case of categories of work determined by national
legislation. Member States making use of this option shall determine, subject to the provisions
of the Directive, the working conditions relating to the light work in question. Art 3(d) defines
light work as all work which, on account of the inherent nature of the tasks which it involves
and the particular conditions under which they are performed: (i) is not likely to be harmful
to the safety, health or development of children, and (ii) is not such as to be harmful to their
attendance at school, their participation in vocational guidance or training programmes
approved by the competent authority or their capacity to benefit from the instruction received.
230
Art 4(2)(a) and 5.
231
Art 8(5).

184 Community Social Legislation

Fourthly, the provisions on night work for adolescents232 are subject to a
wide range of derogations linked to areas of activity and sectors.233 Similar
derogations operate in respect of rest periods.234 Fifth, Member States may
authorise derogations from the provisions on working time, night work,
daily rest and rest breaks in the event of force majeure235 provided that such
work is of a temporary nature and must be performed immediately, that
adult workers are not available and that the adolescents are allowed
equivalent compensatory rest time within the following three weeks.
The Young Workers Directive was due for implementation by 22 June
1996.236 Notwithstanding the wide range of general derogations negotiated
to ensure its adoption, its most remarkable feature is to be found in a rare
and, in the social policy context, unique national concession for the UK in
the final provisions contained in Article 17(1)(b).237 In a departure from all
previous precedent concerning social legislation in the whole Community
232
Art 9(3) provides that prior to any assignment to night work and at regular intervals
thereafter, adolescents shall be entitled to a free assessment of their health and capacities, unless
the work they do during the period during which work is prohibited is of an exceptional
nature.
233
Art 9(2)(a) allows Member States to reduce the prohibited hours for night work in specific areas of activity for adolescents to between midnight and 4 a.m. subject, where necessary, to supervision by an adult. However, under Art 9(2)(b) the prohibition on night work
for adolescents may be removed altogether, where there are objective grounds for so doing
and provided that adolescents are allowed suitable compensatory rest time and that the objectives set out in Article 1 are not called into question in respect of: work performed in the shipping or fisheries sectors; work performed in the context of the armed forces or the police;
work performed in hospitals or similar establishments; cultural, artistic, sports or advertising
activities.
234
Art 10(2) allows Member States to reduce the minimum weekly rest period to 36 hours
where justified by technical or organisational reasons. This shall in principle include Sunday,
although the legality of this derogation must be called into question in the light of the Courts
ruling, in the context of the Working Time Directive, annulling the reference to Sunday as a
day of rest in the second paragraph of Art 5 of that Directive because it was not specifically
linked to its health and safety objectiveCase C84/94, United Kingdom v Council [1996]
ECR I5755, para 37. Art 10(3) permits Member States to make provisions whereby minimum
rest periods for adolescents may be interrupted in the case of activities involving periods of
work that are split up over the day or are of short duration. By virtue of Art 10(4) Member
States may allow for further derogations in respect of adolescents in the following cases, where
there are objective grounds for so doing and provided that they are granted appropriate compensatory rest time and that the objectives set out in Art 1 are not called into question: (a)
work performed in the shipping or fisheries sectors; (b) work performed in the context of the
armed forces or the police; (c) work performed in hospitals or similar establishments; (d) work
performed in agriculture; (e) work performed in the tourism industry or in the hotel, restaurant and caf sector; (f) activities involving periods of work split up over the day.
235
This is defined in Art 5(4) of the framework Dir 89/391, as occurrences due to unusual
and unforeseeable circumstances, beyond the employers control, or to exceptional events, the
consequences of which could not have been avoided despite the exercise of all due care.
236
Art 17(1)(a). The Commission has successfully brought infringement proceedings against
Luxembourg and France for non-implementation. See Case C47/99, Commission v Luxembourg [1999] ECR I8999; and Case C45/99, Commission v France [2000] ECR I3615.
237
The transitional period did not materialise in the text of the draft directive until the
Council had reached a common position on 24 November 1993, C30504/9394/O383
(SYN).

Taking Full Advantage of Article 118a EEC? 185

sphere,238 this provision granted the UK a further four year period after
the implementation date, during which time the UK did not have to comply
with the provisions concerning working time for schoolchildren and adolescents, and night work for adolescents.239 As we have already noted, the
UK negotiated an opt-out clause for individual workers, in relation to the
maximum working week, as part of the Working Time Directive,240 and has
been the only Member State to take advantage of it, but that provision was
not, in its legal effect, specific to the UK. In both cases these concessions
were introduced notwithstanding the fact that a qualified majority vote in
the Council would have secured uniform application of the requirements in
question.
In support of the derogation, the UK argued that the transitional period
was necessary to protect the employment and training opportunities for
young people which pose no health and safety risk,241 a view supported by
British employers representatives.242 Once the concession had been made,
however, it was the subject of scathing criticism.243 The European Parliaments Committee on Social Affairs, Employment and the Working Environment believed that the derogations already in place allowed the UK
sufficient flexibility and therefore the transitional period was incomprehensible.244 In 1996 the British Trades Union Congress (TUC) commissioned a survey indicating that many British children worked illegally and
for long hours, adversely affecting their health and education.245 The transitional period increased the risk to young persons health, education
and welfare.246 The TUC view was also supported by a survey of
schoolchildren.247
On 20 July 2000 the Commission submitted a report on the effects of
Article 17(1)(b)one month after the formal expiry of the opt-out.248 After
238
In the sense that Art 118a EEC applied to the whole Community when, under the Agreement on Social Policy, operative by 1994, there was the option of introducing a Directive that
would not be applicable in the UK, but only where an attempt to use the whole Community
provisions had failedsee further, ch 6.
239
Arts 8(1)(b), 8(2), 9(1)(b) and 9(2) respectively.
240
Art 18(i)(b)(i) of Dir 93/104, OJ 1993, L307/18.
241
Summarised in para 5.3 of COM(2000) 457, the Commissions report on the effects of
Art 17(1)(b).
242
Ibid paras 6.36.7. Particular concern was expressed about sectors heavily dependent
on young workers; such as broadcasting, retailing, hotels and catering.
243
In the Council vote the UK, which was formally against regulation of this area, voted
in favour while Spain and Italy, nominally supportive, abstained because of the concession.
See the note by A Bond (1995) 24 Industrial Law Journal 377 at 377.
244
PE Doc. A3108/94. The Parliament as a whole recommended its deletionOJ 1994,
C91/89. See COM(2000) 457, para 3.3.
245
COM(2000) 457, paras 6.86.12.
246
Ibid para 6.11.
247
Conducted by Market and Opinion Research International (MORI). See COM(2000)
457, para 7.2.
248
Ibid.

186 Community Social Legislation

consultation, an independent expert engaged by the Commission had found
no evidence that employment opportunities for young people would have
been adversely affected if there had been no transitional period.249 On the
basis of this report the Commission recommended to the Council that
the transitional period should not be extended.250 In the meantime the UK,
which had originally regarded transitional arrangements as a renewable
opt-out,251 has accepted the Commissions advice and has amended its
national Working Time Regulations on the basis that the transitional period
expired on 22 June 2000.252
Much of the criticism of the Young Workers Directive has been focused
on the transitional period granted to the UK. On the one hand, such criticism is legitimate because, while there may be different cultural traditions
in certain Member States, not least the British tradition of employing
schoolchildren to deliver newspapers, there can be no justification for
singling out a Member State for special treatment and thereby denying the
children and adolescents affected the health and safety protection that the
Directive is designed to afford. On the other hand, the importance of this
issue should not be exaggerated. Article 118a EEC was designed to be
flexible, allowing for minimum requirements for gradual implementation.
As with the Pregnancy Directive, the identification of young people as a group
having specific risks has tilted the balance of the legislation towards health
and safety protection. Consequently, the objectives of the Social Charter,
promoting employment opportunities and equitable remuneration, and
limiting or prohibiting the work and exploitation of young people, without
any reference to derogations, have been downgraded or lost altogether. The
result is a distinctly anaemic piece of legislation considered by the ILO to fall
short of the standards required by international conventions.253
III IMPROVING LIVING AND WORKING CONDITIONS

(1) Market Functioning under Article 100 EEC

Whereas Article 118a EEC was applied liberally for legislative purposes in
the period of the Social Charter Action Programme, Article 100 EEC [now
94 EC], hitherto the main repository for Community social legislation, was
utilised sparingly. In part, this caution can be explained by the place of
social policy in the EEC Treaty. As explained in chapter 1, in the context
249
Conducted by Market and Opinion Research International (MORI). See COM(2000)
457, para 7.3.
250
Ibid para 7.4. The European Parliament passed a resolution concurring with the
Commissions conclusion: A50021/2001 of 13 Feb 2001, OJ 2001, C276/36.
251
Ibid para 5.2. See URN 97/508 (HMSO, London, 1997).
252
URN 00/1461 (HMSO, London, 2000).
253
WE/2/94, 20 Jan 1994. See Barnard, n 166 above, p 425.

Improving Living and Working Conditions

187

of Article 117 EEC, approximation measures under Article 100 EEC,

whether legislative or purely administrative, were only necessary to rectify
distortions in the market. Moreover, as early as 1985, the Commission had
concluded that, in the short term, the horizon of Community social policy
was to be limited to the promotion of health and safety linked to free movement objectives and, pending reform of the Treaty, it would be inappropriate to use Article 100 EEC more widely.254 Having failed to secure a
major reform of the Treaty and, moreover, with the internal market legislative route blocked off by the exclusion of employment legislation in
Article 100a(2) EEC [now 95(2) EC], a fresh look at the potential of Article
100 EEC was now needed. In particular, the Commission sought to reconcile the bold ambitions that underlay the fundamental social rights in the
Charter with the mundane practicality of crafting legislative measures
deemed to directly affect the establishment and functioning of the common
market, while also taking account of the unanimity requirement.255 In order
to facilitate this adjustment, the European Council provided a steer towards
a market-oriented approach in its Presidency Conclusions at Strasbourg in
December 1989, when it called on the Council to deliberate upon the Commissions proposals in the light of the social dimension of the internal
market.256 The Commission, for its part, adopted three cardinal principles for the enactment of legislation aimed at improving workers living and
working conditions:257
the principle of subsidiarity, having regard to the specific nature of the social
sphere, whereby the type of action has to be matched to the subject matter (e.g.
harmonisation, coordination, convergence, cooperation, etc.) and giving due
consideration to known needs and to the potential added value of Community
action;
the principle of the diversity of national systems, cultures and practices, where
this is a positive element in terms of the completion of the internal market;
the preservation of the competitiveness of undertakings reconciling the economic
and social dimensions. In each initiative a balance must be sought and reached.

Therefore action to establish a sound basis of minimum provisions was

permissible outside the field of health and safety, to complete the internal
market, but only in so far as it added value, taking into account the principle of subsidiarity, the diversity of national systems and the overriding
consideration of competitiveness. The strengthening of economic and social
cohesion, including combating unemployment, was now regarded as central
254
European Commission White Paper, Completing the Internal Market, COM(85) 310,
para 65.
255
For discussion of the legal justification for utilising Art 100 EEC [and now 94 EC] in
this way, see the earlier discussion in ch 3 of Case C376/98, Germany v European Parliament and Council (Tobacco Advertising) [2000] ECR I8419.
256
Issued on 8/9 Dec 1989. See COM(92) 562, p 3.
257
First Report on the Application of the Community Charter of the Fundamental Social
Rights of Workers, COM(91) 511.

188 Community Social Legislation

to achieving competitiveness and this helps to explain why Article 100 EEC
was applied as the legal base for strengthening the Collective Redundancies
Directive in 1992.258 By contrast, Directive 91/533 on Employee Information (Contract or Employment Relationship)259 fitted less obviously within
the compass of Article 100 EEC, and yet, this was the only other item of
social legislation to be successfully chartered through the Communitys
legislative waters as a market functioning measure during the Action
Programme prior to the entry into force of the Agreement on Social Policy
in November 1993. In order to find out why this happened we should now
consider this relatively obscure and unheralded Directive and, in the light
of two judgments of the Court, re-evaluate its importance.
(2) Employee Information (Contract or Employment Relationship)
One of the reasons why Article 100 EEC was lightly used in this period,
notwithstanding the market imperative of the social dimension, was the
perceived threat of the UK veto, although it was rarely applied in practice.
How did the Commissions proposal for an Employee Information
(Contract or Employment Relationship) Directive survive the apparently
inevitable legislative axe when it reached the Council? The answer to this
question is both complex and surprising. The UK abstained in the Council
vote, signifying its tacit opposition to any proposal deemed to regulate the
individual employment relationship. On the face of it, this decision was not
unusual and yet, lying behind the habitual facade of obstinacy, there was a
supreme irony. Here was a piece of Community law, adopted under the auspices of the Social Charter Action Programme, but drawing its source and
inspiration from the legal regulation of this area by the UK originating from
the legislative programme of a previous Conservative Government enacting
its own Industrial Charter.260 Indeed, at the time of the Commissions proposal for a proof of employment directive in January 1991,261 only the UK
258
Dir 92/56/EEC, OJ 1992, L245/3, now consolidated within Dir 98/59/EC, OJ 1998,
L225/16.
259
Dir 91/533/EEC on an employers obligation to inform employees of the conditions
applicable to the contract or employment relationship, OJ 1991, L288/32. By virtue of Art 9
of the Directive the implementation date was 30 June 1993. For critical analysis, see J Clark
and M Hall, The Cinderella Directive? Employee Rights to Information about Conditions
Applicable to their Contract or Employment Relationship (1992) 21 Industrial Law Journal
106; and J Kenner, Statement or Contract?Some Reflections on the EC Employee
Information (Contract or Employment Relationship) Directive after Kampelmann (1999) 28
Industrial Law Journal 205.
260
As acknowledged by the European Commission in its Explanatory Memorandum attached
to the draft directive, COM(90) 563, para 8, OJ 1991, C24/3. UK legislation in this area can be
traced back to the Contracts of Employment Act, 1963. On the source of the Directive, see R
Nielsen, The Contract of Employment in the Member States of the European Communities and
in Community Law (1990) 33 German Yearbook of International Law 258.
261
OJ 1991, C24/3.

Improving Living and Working Conditions

189

and Ireland,262 among the Member States, had introduced legislation

placing an obligation on employers to issue their employees with a written
statement of employment particulars both at the commencement of employment and, where appropriate, when seeking to make amendments to those
particulars.
The Commissions proposal, however, was aimed at achieving a deeper
regulatory incursion into the employment relationship. The Commission
sought to require an employer to issue every employee working an average
week of more than eight hours with a document constituting a form of
proof of the main terms of his employment relationship with his employer
within one month of the commencement of their employment contract.263
This was of particular significance in the UK and Ireland where the introduction of national statutory provisions had been accompanied by a blurring of the distinction between the employers declaratory statement as an
item of documentary evidence and the contract of employment mutually
agreed between the parties.264
The following statement in the Commissions accompanying Explanatory
Memorandum encapsulates the underlying philosophy behind the
proposal:265
The proposal for a Directive has as its objective the creation of an instrument to
make employers responsible for providing precise information on the nature and
content of working relationships in the company.
To this end, it makes provision for an obligation to provide all workers covered by
this Directive with a document setting out the details of the conditions and elements
of their employment relationships with their employer. As such it does not relate to
the rules of national law concerning the conclusion of employment contracts. The
document in question is designed to be a declaratory element and written proof of
the employment contract or employment relationship established in accordance with
the national law of a Member State.

This approach was endorsed by the European Parliament, which sought to

strengthen the Commissions proposal by suggesting several amendments
backed up by a Resolution.266 Parliament proposed that the proof of
employment document should relate both to the parties to the contract and
the work to be undertaken and that employees shall confirm receipt
262
In the case of Ireland, the relevant legislation is contained in the Minimum Notice
and Terms of Employment Act, 1977, which is broadly similar in content to the earlier UK
legislation except that it provides for the statement to be issued within one month of the
commencement of the employees employment, a period identical to the one originally
proposed by the Commission. See Nielsen, n 260 above at 272.
263
OJ 1991, C24/3, sixth recital of the draft preamble.
264
On the operation of common law and statute in the UK, see Kenner, n 259 above and
P Leighton and S Dumville, From Statement to ContractSome Effects of the Contracts of
Employment Act 1972 (1977) 6 Industrial Law Journal 133.
265
COM(90) 563, paras 1112. Emphasis added.
266
OJ 1991, C240/21.

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thereof in a special document. They rejected the notion of an exemption

for part-time workers and sought rather unconvincingly to justify the
measure on the grounds of Article 118a EEC. Therefore the Commissions
proposal, as amended by Parliament, would have had the potential to transform the employers statements into proof of employment documents but
only in those cases where there was an absence of written contractual
documentation. In all other cases, the Commission noted that the written
declarations would be superfluous to any existing written contract or other
documentation making reference to current provisions or collective agreements.267 The Commissions main concern was to clarify the legal position
of employees who were not covered by a written contract of employment
or a letter of appointment, rather than to alter the rules of national law
concerning the conclusion of employment contracts.268
However, the Council not only rejected the amended text but also diluted
the Commissions draft taking into account concerns expressed by the
Economic and Social Committee269 and several Member States. Significant
revisions were made to accommodate these objections. These included, inter
alia, extending the deadline for the statement to be provided to two months
after the commencement of employment270 and deleting a proposal for the
enumerated information to include a job description and category of
employment.271 Most importantly, Article 6 of the Directive provides that:
This Directive shall be without prejudice to national law and practice concerning:
the form of the contract or employment relationship,
proof as regards the existence and content of a contract or employment
relationship,
the relevant procedural rules.

It followed, axiomatically, that the final agreed text represented a shift away
from the original proposal. The measure was no longer primarily concerned
with proof of employment and was, instead, downgraded to an apparently
innocuous piece of Community legislation obliging the employer to issue
documentation to qualifying employees containing a panoply of worthwhile
information concerning the essential aspects of the contract or employment
relationship.272 In particular, there was greater emphasis on the internal
market objectives and an overall goal, summarised in the preamble, to
provide employees with improved protection against possible infringements
267

OJ 1991, C24/3, tenth recital of the preamble.

COM(90) 563, paras 7 and 1213.
269
OJ 1991, C159/32.
270
Art 3(2).
271
See also, the Opinion of the Economic and Social Committee, OJ 1991, C159/32, which
found that this requirement would place an excessive administrative obligation on the
employer.
272
Art 2.
268

Improving Living and Working Conditions

191

of their rights and to create greater transparency in the labour market.273

Not surprisingly, considering the Directives legal heritage, the UKs opposition was fairly muted and aroused little media comment at the time.274
Rather, by registering its objection, the UK was indicating opposition, not
to the measure in principle, but to the necessity for harmonising legislation concerning an administrative obligation that appeared to have little
direct bearing on the operation of the common market and which might be
better left for more flexible regulation, where necessary, at Member State
level.275
What then is the scope of the Directive? In chapter 4 we discussed how
Article 1(1) of the Directive, limiting its application to every paid
employee, has a significant narrowing effect when account is taken of
Article 6, whereby the Directive operates without prejudice to national
law and practice concerning the form of the contract or employment
relationship. Elsewhere there are specific derogations that, if applied by
Member States, narrow its scope even further. For example, Article 1(2)(a)
allows for national derogations including a one-month service qualification
and the option of excluding employees who work fewer than eight hours.
This derogation, while it remains on the EC statute book, cannot now be
reconciled with the provisions of Directive 97/81 prohibiting discrimination against part-time workers.276 Article 1(2)(b) allows Member States
to exclude any contract or employment relationship of a casual and/or
specific nature provided, in these cases, that its non-application is justified
by objective considerations. Bercusson has persuasively argued that the
wording of Article 1(2)(b) creates a presumption that casual and specific
employment relationships are within the scope of the Directive.277 The position, however, is not so clear-cut. In particular, Article 6 creates a hierarchy of norms founded on national law, whereas Article 1(2)(b) derogates
from the core definition in Article 1(1). Hence, Article 1(2)(b) is founded
upon the interpretation of a contract or employment relationship defined
by the law in force in a Member State.
The main substantive provisions can be found in Articles 25. Article 2(1)
obliges employers to notify their employees of the essential aspects of the
contract of employment covering at least the following information
enumerated in Articles 2(2)(a)(j):
(a) the identities of the parties;
(b) the place of work; where there is no fixed or main place of work, the principle
273

Second recital of the preamble.

See Clark and Hall, n 259 above at 106.
275
Department of Employment, Consultation Document on EC Proposal for a Directive
on Form of Proof of an Employment Relationship (HMSO, London, 1991).
276
Dir 97/81/EC, OJ 1998, L14/9, as amended by Dir 98/23/EC, OJ 1998, L131/10.
277
B Bercusson, European Labour Law (Butterworths, London, 1996) p 432. Emphasis in
the original.
274

192

(c)

(d)
(e)
(f)

(g)

(h)
(i)
(j)

Community Social Legislation

that the employee is employed at various places and the registered place of business or, where appropriate, the domicile of the employer;
(i) the title, grade, nature or category of the work for which the employee is
employed; or
(ii) a brief specification or description of the work;
the date of commencement of the contract or employment relationship;
in the case of a temporary contract or employment relationship, the expected
duration thereof;
the amount of paid leave to which the employee is entitled or, where this cannot
be indicated when the information is given, the procedures for allocating and
determining such leave;
the length of the periods of notice to be observed by the employer and the
employee should their contract or employment relationship be terminated or,
where this cannot be indicated when the information is given, the method for
determining such periods of notice;
the initial basic amount, the other component elements and the frequency of
payment of the remuneration to which the employee is entitled;
the length of the employees normal working day or week;
where appropriate;
(i) the collective agreements governing the employees conditions of work; or
(ii) in the case of collective agreements concluded outside the business by special
joint bodies or institutions, the name of the competent body or joint institution
within which the agreements were concluded.

Article 2(3) allows some flexibility by permitting the information referred

to in paragraphs (f) (g) (h) and (i) to be transmitted in the form of a reference to the laws, regulations and administrative or statutory provisions or
collective agreements governing those particular points.
Article 2(2) is not intended to be exhaustive but it does contain one
glaring omission concerning disciplinary procedures. There is no obligation
on the employer to provide information about the existence and form
of such procedures. Member States are able to apply or introduce more
favourable provisions278 and the UK, acting in conformity with the principle of non-retrogression, has chosen to retain its existing rules obliging
employers with 20 employees or more to provide this information.279 One
less obvious omission, concerning overtime, as distinct from normal
working hours, was discussed by the Court in Lange,280 where the relationship between Article 2(1) and 2(2) was also addressed. We will return to
this question when discussing Lange later in this section.
Methods of conveying the essential information listed in Article 2(2) are
set out in Article 3. Employers are obliged to issue a specific document or
278
279
280

Art 7.
The relevant provisions are contained in s 3(3) Employment Rights Act, 1996.
Case C350/99, Lange v Georg Schnemann GmbH [2001] ECR I1061.

Improving Living and Working Conditions

193

a succession of documents,281 and/or written declarations,282 conveying all

the required information to their employees within two months of the commencement of their employment. An employer cannot simply refer to other
documentation that the employee can inspect. Where the contract or
employment relationship comes to an end within two months, the information must be made available to the employee at the end of this period
at the latest.283 A separate clause, in Article 9(2) obliged employers to
issue the itemised documentation to employees in employment at the time
when the Directives provisions entered into force where an employee had
requested this information. The employer had two months to comply with
this request.
Article 4 provides additional protection where an employee is required
to work outside the country whose law and/or practice governs their contract or employment relationship284 for a period of more than one month.285
These expatriate employees are entitled to the documentation referred to
in Article 3 prior to their departure together with specified information concerning the length of time to be worked abroad, the currency to be used
for wages, and related matters concerning the benefits and cash in kind
attendant on the employment abroad and the conditions governing their
repatriation.286 This provision, which might appear to be separated from
the main thrust of the Directive, can now be regarded as fully complementary with the later Directive on Posted Workers,287 which provides for a
minimum range of protection for workers who, for a limited period, work
in the territory of a Member State other than the State in which they
normally work.
Article 5 is concerned with modifications of aspects of the contract or
employment relationship. Any change in the details specified in Articles 2
281
Art 3(1) provides that this information can be issued in the form of: (a) a written contract of employment; and/or (b) a letter of engagement; and/or (c) one or more other written
documents, where one of these documents contains at least all the information referred to in
Art 2(2) (a) (b) (c) (d) (h) and (i).
282
This option is set out in Art 3(2). It applies where none of the documents referred to in
Art 3(1) is handed over to the employee within the prescribed period. In these circumstances
the employer shall be obliged to give the employee, not later than two months after the commencement of employment, a written declaration signed by the employer and containing at
least the information referred to in Article 2(2). Where the documents referred to in Art 3(1)
contain only part of the information required, the written declaration shall cover the remaining information.
283
Art 3(3).
284
Art 4(1).
285
Art 4(3).
286
Art 4(1)(a)(d). Art 4(2) provides that the information concerning the currency of any
remuneration and cash and benefits in kind may be given in the form of a reference to the
laws, regulations and administrative or statutory provisions or collective agreements governing those particular points.
287
Dir 96/71/EC concerning the posting of workers in the framework of the provision of
services, OJ 1997, L18/1.

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and 4 will normally be set out in a written document to be issued by the

employer to the employee at the earliest opportunity and not later than
one month after the date of entry into effect of the change in question.288
This written document shall not, however, be compulsory in the event of a
change in the laws, regulations and administrative or statutory provisions
or collective agreements. This offers Member States considerable flexibility.
Moreover, with regard to clauses in collective agreements, the effectiveness
of this provision depends on the legal status of such agreements in the
Member State concerned. For example, in the UK, where collective agreements are not legally binding per se, an Employment Tribunal must be
satisfied that the parties are bound by the collective agreement through the
incorporation of its terms into the contract. Reference to a collective agreement in the employers statement will not automatically lead to incorporation, but it can be argued that it provides strong prima facie evidence in
favour of that interpretation.289
Finally, Article 8 provides for access to redress for the employee within
15 days of notifying the employer of his failure to comply with the obligations in the Directive by judicial process after possible recourse to other
competent authorities.290 This offers Member States considerable leeway.
For example, in the UK an employee has a right of recourse to an Employment Tribunal to obtain a declaration rectifying the statutory particulars.
This would appear to meet this minimum requirement and yet research suggests that this provision has been infrequently used because the Tribunal
cannot award compensation or impose a fine for non-compliance.291
Taken together, the employee information requirements specified in the
Directive largely reflect the fast changing nature of labour markets and
the prevalence of informal employment relationships. For these reasons the
requirement to include a non-exhaustive list of detailed information in
the written statement was not intended to lead to any systematic changes
to the diverse formalities of the individual employment relationship in the
Member States, but rather to operate as a practical means of making information issued by the employer more relevant to the employee. It does not,
however, resolve the statement or contract conundrum. Nevertheless, some
insight into the Directives application can be gleaned from two cases
referred from courts in Germany.
In Kampelmann292 a group of employers sought to challenge the accuracy of their own statements in order to deny promotion to several of their
288

Art 5(1).
System Floors Ltd v Daniel [1981] IRLR 475 (Employment Appeal Tribunal).
290
Art 8(1).
291
See Clark and Hall, n 259 above at 116.
292
Joined Cases C253258/96, Kampelmann and others v Landschaftsverband WestfalenLippe, and Stadtwerke Witten GmbH v Schade, and Haseley v Stadtwerke Altena GmbH
[1998] ECR I6907.
289

Improving Living and Working Conditions

195

employees on the grounds that documents previously issued to them, in

some cases before the Directive entered into force, had incorrectly categorised or assessed their performance. The main provisions under consideration were Article 2(2)(c)(ii) concerning information containing a brief
specification or description of the work and Article 9(2) obliging employers to give existing employees the documentation required by Article 3 on
request. While the primary issue at stake was whether the employers statements were binding on them, the questions raised by the referring court
have much wider ramifications.293
The first question referred to the stated objective in the preamble of the
Directive to provide employees with improved protection and to create
greater transparency in the labour market and asked if it was the purpose
of Article 2(2) to modify the burden of proof in the employees favour by
providing a list of minimum requirements intended to ensure that the
employee does not encounter difficulties of proof regarding the listed points
when enforcing his contractual rights in employment law disputes?294 On
a related point arising from Article 9(2) concerning documents issued before
the Directive came into force, the Court was also asked, in the fourth question, whether an employer who issues a more recent notification which conflicts with the earlier ones, must prove that the latter notification is correct?
When considering the first question, AG Tesauro placed great emphasis
on Article 6, which preserves national law and practice concerning proof
as regards the existence and content of a contract or employment relationship. He concluded, however, that it must be recognised that the details
given by the employer himself in the notification cannot be wholly devoid
of relevance, in terms of probative value, but the Directive cannot be taken
to reverse the burden of proof. This will be a matter for national procedural rules.295 The Court concurred with this view but noted that Article
2(1) of the Directive requires the employer, for the purposes set out in the
second recital in the preamble, to notify an employee of the essential aspects
of the contract or employment relationship, as set out in Article 2(2).296 It
followed that:297
That objective would not be achieved if the employee were unable in any way to
use the information contained in the notification . . . as evidence before the national
293
The third and fifth questions are not considered in detail here. The third question concerned the scope of Art 2(2)(c)(i) of the Directive but this was deemed not to be relevant
because Germany had legitimately chosen an alternative provision contained in Art 2(2)(c)(ii)
paras 489. In answering the fifth question, the Court, at paras 503, upheld Germanys means
of implementing Art 9(2) notwithstanding the fact that they had exempted employers from
issuing statements to employees who already possessed written contractual documentation
before the Directive entered into force.
294
Para 24.
295
Paras 1112 of the opinion.
296
Para 31.
297
Paras 323.

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Community Social Legislation

courts, particularly in disputes concerning essential aspects of the contract or

employment relationship.
The national courts must . . . apply and interpret their national rules on the burden
of proof in the light of the purpose of the Directive, giving the notification . . . such
evidential weight as to allow it to serve as factual proof of the essential aspects of
the contract of employment . . . enjoying such presumption as to its correctness as
would attach, in domestic law, to any similar document drawn up by the employer
and communicated to the employee.

The real significance of this part of the judgment lies with the Courts application of the doctrine of effectiveness in its interpretation of any notification issued in accordance with the Directive as presumptive proof of
employment notwithstanding the dilution of the original proposal. It
follows that where the employers notification is accurate both at the time
of issue and in operative fact, it will serve as the contract in so far as it
conveys those essential aspects contained within Article 2(2) and added to
by more favourable provisions in domestic law. The employer will only
be able to rebut the presumption by bringing evidence to show that the
information in the notification is either inherently incorrect or has shown
to be so in fact.298 Therefore, in circumstances where the notification, or
series of notifications, issued in accordance with Article 2, amount to the
only accurate and available documentary evidence of the relevant contractual terms the statement and contract may be treated as one and the same.
To what extent then does his own statement bind the employer? AG
Tesauro advised that the employer is bound by his subsequent notification
unless its details are shown to be inaccurate, while the employee should
only have to rely upon the notification where he wishes to establish that it
reflects the substance of the agreement.299 Implicitly therefore, in all other
circumstances, the employee ought to be able to rely on the written contract preceding the notification. Hence, the purpose of the notification is
to help the employee as a matter of proof although this may not be incontrovertible or even sufficient in itself because:300
. . . the employers obligations derive exclusively from the contract and not from
notification given pursuant to the Directive, which merely serves as subsequent
evidence of the details of the contract which it must faithfully reflect.

Although the Court did not directly address this point, it ruled that the
notification amounts to a presumptive contract capable of rebuttal by the
employer.301 Hence, any inconsistency between the statement and its contractual precursor ought to be reconciled by reference to the original con298
299
300
301

Para 34.
Para 13 of the opinion.
Ibid.
Para 35.

Improving Living and Working Conditions

197

tractual document. Any other interpretation would be contrary to the Directives aim to give improved protection to employees without written proof
of employment and not to undermine the rights of those who have.302
The second question concerned the direct effect of Article 2(2)(c). This
provision allows Member States to choose between two categories of information to be issued by employers containing, either, the title, grade, nature
or category of the work for which the employee is employed, or, a brief
specification or description of the work. The Court held that this provision meets the requirements for direct effect, in the sense that it is unconditional and sufficiently precise, notwithstanding the fact that Member
States were given a choice of options.303 It is still possible to determine the
content of the rights conferred on individuals, the scope of which is not in
the discretion of the Member State whatever choice it makes.304 Having
found that Article 2(2)(c) is directly effective, the Court noted that Germany
had chosen the second option by requiring the employer to give written
notification of the designation or general description of the work to be
done by the employee.305 The Court concluded that the mere designation
of an activity cannot in every case amount to a brief specification or description of the work done by an employee as required by Article 2(2)(c)(ii).306
Therefore, while not explicitly striking down the German legislation, the
Court found that it was not open to Member States to transpose the Directive in such a way as to allow the employer, in every case, to confine the
information to be notified to the employee to a mere job designation, and
national courts should interpret such legislation accordingly.307
Kampelmann confirms that national rules concerning the formation of
the contract between the parties at the commencement of employment, and
when seeking to make changes, will persist. No other interpretation would
have been conceivable when determining the impact of the clear provisions
contained within Article 6 of the Directive. The Court has, however, given
clear guidance that, in circumstances where the employers notification
accurately reflects the contract and the employee seeks to rely on it, the
Directives objective of improved protection for employees will be converted
into an effective guarantee that will apply to, at least, the directly effective
normative terms enumerated in Article 2(2). Simultaneously, the Court has
placed a heavy burden of rebuttal on the employer seeking to disprove his
own statement.

302

Paras 312.
Para 39.
304
Ibid. See also, Cases C6/90 and 9/90, Francovich and others v Italy [1991] ECR I5357,
para 17.
305
Para 43.
306
Para 44.
307
Para 47.
303

198 Community Social Legislation

The Courts interpretation of the Directive in Kampelmann has been
further amplified in Lange.308 This case concerned a dispute about overtime.
Mr Langes contract of employment specified that his working week was 40
hours with no reference to overtime. Subsequently, he refused his employers
request to work overtime and his contract was terminated. The employer
claimed that it was understood that overtime would be worked in the event
of sudden increases in workload while Mr Lange contended that he agreed
to work overtime only in emergencies. In order to settle this dispute the
Arbeitsgericht Bremen sought guidance from the Court on the interpretation
of Article 2, concerning its application to any agreements to work overtime,
and Article 6 on the exercise of national rules of evidence where an employer
has failed to provide information pursuant to the Directive.
First, the Court considered the scope of Article 2(2)(i) which specifies the
conveyance of information concerning the length of the employees normal
working day or week. Interpreting this provision in isolation led ineluctably
to the conclusion that normal working hours and overtime were mutually
exclusive as overtime is performed outside, and is additional to, normal
working hours.309 The Commission had argued that the position is different where overtime is habitually worked in the undertaking and can be
viewed as a feature of the employees ordinary working day.310 The Court
rejected this argument on the basis that it was contrary to the wording of
Article 2(2)(i) and, also, the purpose of the obligation to provide information is to apprise employees of their rights and obligations vis--vis their
employers, not to give an indication of the practices observed as a general
rule in the undertaking preceding their recruitment.311
Therefore, in isolation, Article 2(2)(i) is to be interpreted narrowly as not
relating to overtime. This is not, however, the end of the matter because
Article 2(1) and 2(2) must be construed together. The Court confirmed that
Article 2(2) is not intended to be an exhaustive enumeration of the essential elements of the contract or employment relationship referred to in
Article 2(1).312 The Court continued:313
Accordingly, apart from the elements mentioned in Article 2(2) of the Directive, any
element which, in view of its importance, must be considered an essential element
of the contract or employment relationship of which it forms part must be notified
to the employee. That applies in particular to a term under which an employee is
obliged to work overtime whenever requested to do so by his employer.

Consequently, an employer is required to give written notice to an employee

of such a term under which the latter is obliged to work overtime when308
309
310
311
312
313

Case C350/99, Lange v Georg Schnemann GmbH [2001] ECR I1061.

Para 16.
Para 17.
Para 18.
Para 22.
Para 23.

Improving Living and Working Conditions

199

ever requested to do so by an employer under the same conditions as apply

under Article 2(2) and, by analogy, Article 2(3) which allows rules concerning normal working hours to be transmitted in the form of a reference
to the relevant laws, regulations and administrative or statutory provisions
or collective agreements.314
Secondly, does it necessarily follow that, in the absence of this written
notification, such a request to work overtime is inapplicable? The Court
found that such an interpretation would frustrate the purpose of the
Directive, which was to establish the contents of the essential elements of
the contract or employment relationship.315 Article 6 gives precedence to
national rules of evidence and such proof may be produced in any form
allowed by national law, and thus, even in the absence of any written
notification from the employer.316 Moreover, Article 8(1) leaves the issue of
remedies to the Member States and therefore it does not necessarily follow that the element in question will be inapplicable.317 The Court applied
Kampelmann in holding that national rules on the burden of proof are not
affected and the Directive itself does not lay down any rules of evidence.318
Both Kampelmann and Lange point to a broad interpretation of Article 2.
The employer is bound not only to provide the information required under
Article 2(2), where it forms part of the contract or employment relationship,
but also any additional information which is an essential element of that
contract or employment relationship. Therefore the Community obligation,
founded on transparency, is a broad one, but in practice it operates, under the
principles of subsidiarity and legal diversity, in strict accordance with
national rules on the formation of the contract, proof of its existence and
content, and procedural rules, including the means of redress.
While the central thrust of Kampelmann and Lange has fortified Directive 91/533 as a means of transmitting contractual information in a transparent form, apparently offering a solid base of protection for employees,
these cases have also, paradoxically, helped to reveal its most serious limitation. In particular, it neither alters the power relationship between
employer and employee, nor impinges upon the framework of employment
protection provided by national labour laws. Hence, Article 6 ensures that
the employer retains a large measure of control over the contractual bargain
subject to the interpretation of the contractual documentation, including
the employers notifications, by the national court. It follows that, although
Article 2(1) contains an assumption that the essential elements of the contract are at least those items contained in Article 2(2), the precise content

314
315
316
317
318

Para 24.
Paras 27 and 29.
Para 27.
Para 28.
Paras 305.

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of the contract remains a matter for the parties while the Directive is
concerned with how it is conveyed. Therefore, if the framework of
regulation at national level is stripped away and no longer offers a minimum
level of protection in the enumerated areas there is no compulsion on
the employer to include these details in the contractual terms. Where
this occurs the Directive offers no corresponding protection.319 This
was aptly demonstrated by the fact that just when the UK was taking
positive steps to implement the Directive, they were simultaneously
dismantling the bulk of the Wages Council machinery that had regulated
employment contracts for millions of workers throughout the post-war
period.320

IV SOFT LAWFILLING THE GAPS?

(1) Introduction
Our discussion of the first two legislative streams has featured a range of
measures that, while they reflect a health and safety or common market
orientation, have fulfilled, at least in part, the objective of establishing a
minimum, if not uniform, set of exercisable social rights for those Community workers within their protective scope, broadly consistent with the
aims of the Social Charter. To complete the picture we need to examine a
third stream of quasi-legislative321 or soft law activity that featured prominently during the period of the Action Programme. In seeking to work
through its 47 wide-ranging initiatives, the Commission had to rely heavily
on soft law, not only to compensate for the limitations of the legal bases in
the Treaty and the difficulty in overcoming opposition in the Council, but
also because non-binding measures can help to render existing hard law
more effective on the ground and act as a test-bed or filter for new initiatives in areas in which there may be no short or medium-term possibility
of Community legislation. Hence soft law helps to fill legislative gaps while
maintaining the momentum created by declaratory instruments such as the
Charter and the Action Programme. In this section we will examine two
Community instruments from this period representing the diversity and
inherent flexibility of the Community soft law method.

319
See S Deakin and G Morris, Labour Law 2nd edn (Butterworths, London, 1998) pp
25255.
320
Wage setting has now been restored by the National Minimum Wage Act, 1998.
321
This term predates soft law and is still used in British administrative law. See R Megarry,
Administrative Quasi-Legislation (1944) 60 Law Quarterly Review 125; and G Ganz, QuasiLegislation: Recent Developments in Secondary Legislation (Sweet & Maxwell, London,
1987).

Soft LawFilling the Gaps? 201

(2) Commission Recommendation and Code of Practice on

Sexual Harassment
In 1984 the Council adopted a non-binding Recommendation on the promotion of positive action for women,322 which sought to give practical effect
to the commitment in Article 2(4) of the Equal Treatment Directive,
76/207,323 to take measures to promote equal opportunities for men and
women, in particular by removing existing inequalities which affect
womens opportunities in employment and the labour market.324 The 1984
Recommendation sought to implement positive actions designed to eliminate existing inequalities affecting women in working life and to promote
a better balance between the sexes in employment.325 One of the objectives
of positive action would be to eliminate or counteract the prejudicial effects
on women in employment or seeking employment which arise from existing attitudes, behaviour and structures based on the idea of a traditional
division of roles in society between men and women.326 High on the list of
priorities was action aimed at ensuring respect for the dignity of women at
the workplace.327 Following on from this Recommendation, the Commission embarked on a range of programmatic activity leading to a seminal
opinion of the Advisory Committee on Equal Opportunities for Men and
Women which, in June 1988, unanimously proposed a recommendation
and code of conduct on sexual harassment in the workplace covering
harassment of both sexes.328 This report followed hard on the heels of a
Commission study on the dignity of women at work329 and a European
Parliament Resolution on violence against women.330 The Council
322
Council Recommendation 84/635/EEC on the promotion of positive action for women,
OJ 1984, L331/34. This Recommendation was, in turn, a development arising from a Council
Resolution on the promotion of equal opportunities for women, OJ 1982, C186/3. The 1982
Resolution gave Council approval to the general objectives of a Community action programme
on the promotion of equal opportunities for women (19821985) namely the stepping up of
action to ensure observance of the principle of equal treatment and the promotion of equal
opportunities in practice by positive action (Part B of the programme) and expressed the will
to implement appropriate measures to achieve these objectives.
323
OJ 1976, L39/40.
324
Emphasis added.
325
Council Recommendation 84/635/EEC on the promotion of positive action for women,
OJ 1984, L331/3, point 1.
326
Ibid point 1(a).
327
Ibid point 4.
328
Commission Report of 20 June 1988 (European Commission, Brussels, 1988).
329
M Rubenstein, The Dignity of Women at Work: A Report on the Problem of Sexual
Harassment in the Member States of the European Communities (European Communities,
Luxembourg, 1987). See also, C McCrudden, The Effectiveness of European Equality Law:
National Mechanisms for Enforcing Gender Equality Law in the Light of European Requirements (1993) 13 Oxford Journal of Legal Studies 320 at 36265.
330
OJ 1986, C176/73. This resolution called upon national governments, equal opportunities committees and trade unions to carry out concerted information campaigns to create a
proper awareness of the individual rights of all members of the labour force.

202 Community Social Legislation

responded with a Resolution on the protection of the dignity of women and
men at work.331 Finally, following the absorption of this objective into the
Third Community Action Programme on equal opportunities for women
and men,332 on 27 November 1991, the Commission formally adopted
Recommendation 92/131 on the protection of the dignity of men and
women at work, together with an annexed code of practice on measures to
combat sexual harassment.333
The Commission Recommendation should therefore be regarded as the
culmination of an intense period of inter-institutional soft law activity that
created an irresistible dynamic for a definitive Community instrument on
combating sexual harassment that was designed to spur activity at both
national and Community levels and which, in due course, has proved to be
capable of conversion into hard law. Hence the Recommendation falls into
a grouping of soft laws334 that are designed to supplement existing hard
laws in order to give them maximum effect at national level and to serve
as a means of focusing the attention of the Community institutions on
priority policy areas. McCrudden has neatly described this type of instrument as a hybrid between legislation and litigation devised as much to
influence national court and [Court of Justice] interpretations of existing
legal provisions as to influence Member States to adopt new legal provisions or new practices.335
In order to consider the effectiveness of the Recommendation let us first
establish its legal status.336 Under Article 220 EC [ex 164 EEC] the Court
has a duty to ensure that in the interpretation and application of this Treaty
the law is observed. In each case the primary consideration of the Court
is not the formal or informal means used to adopt the instrument but its
inherent capacity to create legal effects by reference to both its content and
objectives.337 In particular, the Court will take note of the general obligation on Member States in Article 10 EC [ex 5 EEC] to facilitate the Communitys tasks and abstain from all measures that could jeopardise the
attainment of the Communitys objectives. Hence, Community soft laws
have the potential to influence and extend the scope of national laws to
fully comply with Community objectives, whilst ensuring that derogations
331

OJ 1990, C157/3.
COM(90) 449. Point D (a). The Social Charter Action Programme did not directly
include the proposed recommendation among its initiatives but referred instead to the need
for an action programme. Social Europe 1/90, p 68.
333
Recommendation 92/131/EEC, OJ 1992, L49/1. For further discussion, see F Beveridge
and S Nott, A Hard Look at Soft Law in P Craig and C Harlow (eds) Lawmaking in the
European Union (Kluwer, London, 1998) 285309 at 297305.
334
For my categorisation, see p 128 above.
335
McCrudden, n 329 above at 362. Another example is the Council Recommendation on
Childcare, 92/241/EEC, OJ 1992, L123/16.
336
See further, J Kenner, EC Labour Law: the Softly, Softly Approach (1995) 11 International Journal of Comparative Labour Law and Industrial Relatiour 307.
337
See Case 22/70, Commission v Council (ERTA case) [1971] ECR 263 at 277.
332

Soft LawFilling the Gaps? 203

from the objectives of the Treaty, in whatever form, are interpreted
restrictively.338
The Court has recognised that recommendations have no binding
force339 but this does not mean that they have no legal significance. In
Frecassetti,340 AG Warner advised that where a national statute had been
passed for the express purpose of giving effect to a recommendation the
correct interpretation of that statute may well depend on that of the recommendation. Whether it does so depend or not is a matter for the national
court concerned.341 This was taken further by the Court itself in
Grimaldi,342 where it was held, firstly, that the legal effects, if any, of a
recommendation could be the subject of an Article 234 EEC [ex 177 EC]
reference from a national court seeking guidance from the Court343 and,
secondly, while recommendations are non-binding and cannot create rights
upon which individuals may rely before a national court, they may, nevertheless, have certain legal consequences for Member States.344 In its judgment the Court concluded that:345
. . . it must be stressed that [recommendations] cannot therefore be regarded as
having no legal effect. The national courts are bound to take recommendations into
consideration in order to decide disputes submitted to them, in particular where
they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community
provisions.

Therefore, recommendations are capable of indirect effect346 in the sense

that they can act as an aid to interpretation where national provisions are
338
For example in Case 43/75, Defrenne v Sabena II [1976] ECR 455 at para 56, the Court
rejected a Council Resolution of 30 Dec 1961 which sought to achieve a three year delay of
the effective date for the implementation of the principle of equal pay for men and women in
Art 119 EEC on the grounds that such a resolution could not modify a clear Treaty provision. However, the Court acknowledged that a resolution on this subject matter could have
legal effects if it operated to encourage and accelerate the full implementation of equal
pay. See J Klabbers, Informal Instruments before the European Court of Justice (1994) 31
Comman Market Law Review 997 at 10078. In Cases 90 and 91/63, Commission v
Luxembourg and Belgium [1964] ECR 625 at 638, AG Roemer noted that where a Council
resolution was not acted upon in due time this might well imply that an obligation based on
the Treaty was not observed.
339
Art 249 EC [ex 189 EEC].
340
Case 113/75, Frecassetti v Amministrazione delle Finanze dello Stato [1976] ECR 983.
341
Ibid at 99697.
342
Case C322/88, Grimaldi v Fonds des Maladies Professionelles [1989] ECR 4407. For
comment, see A Arnull, The legal status of recommendations (1990) 15 European Law
Review 318. See also Case C188/91, Deutsche Shell AG v Hauptzollamt Hamburg-Hamburg
[1993] ECR I363.
343
Ibid paras 89.
344
Paras 1619.
345
Para 18.
346
For discussion, see C Docksey and B Fitzpatrick, The duty of national courts to interpret provisions of national law in accordance with Community law (1991) 20 Industrial Law
Journal 113.

204 Community Social Legislation

vague or inconsistent in order to ensure conformity with other binding
Community laws and Treaty provisions. By focusing on content rather than
form the national court can reverse the presumption that soft laws do not
have legal effects.347 Thus, both formal and informal non-binding instruments are given legal scope based on a legitimate expectation that the
conduct of Member States will be in conformity with rules and declarations
designed to fulfil the Communitys aspirations.348 In this way there is the
potential for soft law to be transformed into hard law at national level
where the courts are prepared to accept this form of Community guidance.
The Commission Recommendation and Code of Practice349 seek to
address the issue of unwanted conduct, sexual or otherwise, based on sex
affecting the dignity of women and men at work. The first recital declares
that such conduct is:350
. . . unacceptable and may, in certain circumstances, be contrary to the principle of
equal treatment within the meaning . . . of Directive 76/207 . . . on the implementation of the principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions, a view
supported by case-law in certain Member States.

Thus the Recommendation provides further elaboration of an existing

binding Community provision as a means of encouragement and guidance
for national courts seeking to interpret national rules in line with Community laws in order to give them maximum useful effect.351 Without such
encouragement there is a danger that weak enforcement or failure to sanction infringements will inhibit women from exercising their rights, will
diminish their status, and reduce their likelihood of obtaining equality of
treatment in the workplace.352
The Recommendation is directed at the Member States exhorting them
to take action to promote awareness of sexual harassment. Article 1 recommends that Member States take action to promote awareness that conduct
of a sexual nature, or other conduct based on sex affecting the dignity of
women and men at work, including conduct of superiors and colleagues, is
unacceptable if:
(a) such conduct is unwanted, unreasonable and offensive to the recipient;
(b) a persons rejection of, or submission to, such conduct on the part of
employers or workers (including superiors or colleagues) is used explicitly or
implicitly as a basis for a decision which affects that persons access to
347

See Klabbers, n 338 above at 101617.

See K Wellens and G Borchardt, Soft Law in European Community Law (1989) 14
European Law Review 267 at 28182.
349
Recommendation 92/131/EEC, OJ 1992, L49/1.
350
Emphasis added.
351
See Case 41/74, Van Duyn v Home Office [1974] ECR 1337.
352
See the Commissions draft equal opportunities action programme for 19962000,
COM(95) 381 at 267.
348

Soft LawFilling the Gaps? 205

vocational training, access to employment, continued employment, promotion,
salary or any other employment decisions; and/or
(c) such conduct creates an intimidating, hostile or humiliating work environment
for the recipient; and that such conduct may, in certain circumstances, be contrary to the principle of equal treatment within the meaning of Articles 3, 4 and
5 of Directive 76/207/EEC.

This is a general definition of such conduct and should not be confused

with a more detailed definition of sexual harassment in the Code. Part 2
of the Code gives examples of sexual harassment including unwelcome
physical, verbal or non-verbal conduct. Thus, a range of behaviour may be
considered to constitute sexual harassment as the Commission explain:353
The essential characteristic of sexual harassment is that it is unwanted by the recipient, that it is for each individual to determine what behaviour is acceptable to them
and what they regard as offensive. Sexual attention becomes sexual harassment if
it is persisted in once it has been made clear that it is regarded by the recipient as
offensive, although one incident of harassment may constitute sexual harassment if
sufficiently serious. It is the unwanted nature of the conduct which distinguishes
sexual harassment from friendly behaviour, which is welcome and mutual.

Article 2 urges the Member States to implement the Code in the public
sector and, through their action in initiating and pursuing positive measures designed to create a climate at work in which women and men respect
one anothers human integrity, should serve as an example to the private
sector. Article 3 recommends that Member States encourage employers
and employees representatives to develop measures to implement the Code.
Article 4 instructs Member States to inform the Commission within three
years of the date of the recommendation of the measures taken to give effect
to it, in order to allow it to draw up a report on these measures.
Having set out a general series of recommendations to the Member States,
the Commission reinforce the Recommendation by attaching guidelines in
the Code of Practice. Through the mechanism of the Code, the Commission seeks to directly address employers, trade unions and equal opportunity agencies concerned with the implementation of equal treatment on the
ground in both public and private sectors and in small and medium-sized
enterprises.354 The overriding aim of the Code is to ensure that sexual
harassment does not occur and, if it does occur, to guarantee that adequate
procedures are readily available to deal with the problem and prevent its
recurrence. The Code thus seeks to encourage the development and implementation of policies and practices that establish working environments free
of sexual harassment and in which women and men respect one anothers
human integrity.355 Significantly, the Commission follow through this
353
354
355

Annex, Part 2, para 3.

Annex, Part 1, para 2.
Annex, Part 1, para 3.

206 Community Social Legislation

logic and note that some groups are particularly vulnerable to sexual
harassment:356
. . . including divorced and separated women, young women and new entrants to
the labour market and those with irregular or precarious employment contracts,
women in non-traditional jobs, women with disabilities, lesbians and women from
racial minorities are disproportionately at risk. The Commission also note that gay
men and young men are also vulnerable to harassment. It is undeniable that harassment on grounds of sexual orientation undermines the dignity at work of those
affected and it is impossible to regard such harassment as appropriate workplace
behaviour.

This statement was to provide a direct point of reference for the Commission when drafting its proposals on Community measures to combat discrimination under Article 13 EC,357 added by the Treaty of Amsterdam.358
This, in turn, led to the inclusion of specific anti-harassment clauses in both
the Race Equality Directive359 and the Framework Employment Directive.360
In each case the definition of harassment has been closely modelled on
the Recommendation, indicating direct lineage from soft law to binding
Community action.
As a Community instrument the Code is a means by which formal equality guaranteed by the Directive can be translated into real equality on the
ground based on best employment practice. The social policy actors are
provided with a detailed definition of sexual harassment, guidance on the
law, including the possibility of making sexual harassment a criminal
offence. Employers are offered specific advice about investigative and disciplinary procedures. The aim, therefore, is to facilitate changes in attitudes
and behaviour through both practical and legal steps.
Evidence from several Member States suggests that the Recommendation
and Code have had a galvanising effect.361 Within a year of its adoption, a
Belgian decree was issued which forces employers to ensure that employees are aware that sexual harassment of a verbal, non-verbal and physical
356

Annex, Part 1, para 3.

Art 13 EC provides that: Without prejudice to other provisions of this Treaty and within
the limits of the powers conferred upon the Community, the Council, acting unanimously on
a proposal from the Commission and after consulting the European Parliament, may take
appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or
belief, disability, age or sexual orientation. For full discussion, see ch 9.
358
COM(99) 564, Annex II.
359
Art 2(3) of Dir 2000/43/EC implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, OJ 2000, L180/22.
360
Art 2(3) of Dir 2000/78/EC establishing a general framework for equal treatment in
employment and occupation, OJ 2000, L303/16. Art 1 provides that the scope of this Directive includes combating discrimination on the grounds of religion or belief, disability, age or
sexual orientation.
361
For an overview, see J Gregory, Sexual Harassment: the Impact of EU Law in the
Member States in M Rossilli (ed) Gender Policies in the European Union (Peter Lang, New
York, 2000) 17591.
357

Soft LawFilling the Gaps? 207

nature, is forbidden, to provide support to victims, to set up a complaints
procedure and to establish disciplinary sanctions for offenders.362 In France
the Labour Code was amended to provide statutory protection to victims
and witnesses of the abuse of authority at work in sexual matters and also
grants them a right to a legal remedy if they suffer discrimination in employment as a result. In addition the Penal Code has been amended to make
sexual harassment a criminal offence.363 In Ireland a Code of Practice has
been drawn up by the Employment Equality Agency.364 The Irish Code
builds on the Commissions Code by providing for a formal procedure for
complaints to be investigated and pursued involving assistance from an
outside expert where necessary.365 Perhaps the most significant impact of
this formalistic approach is that it encourages preventative action to be
taken by employers before any question of unequal treatment contrary to
the Directive arises. In the UK the statutory Equal Opportunities Commission has issued a guide on the subject to employers, trade unions and
employees advocating both formal and informal methods of conflict resolution. Further, a criminal law measure has been adopted by the UK Parliament that renders intentional racial, sexual, or other forms of harassment
in the street and at work a criminal offence punishable by imprisonment.366
What is the effect of the Recommendation and Code on labour courts
and tribunals? Several cases of interest have arisen in the UK. Early signs
were encouraging, following the advice given by the Employment Appeal
Tribunal (EAT) in Wadman v Carpenter Farrer Partnership,367 where it was
held that tribunals determining cases of sexual discrimination might use the
Code for interpretative assistance. The Code has been referred to in several
subsequent cases. For example, in Stewart v Cleveland Guest (Engineering)
Ltd,368 a case concerning a display of pin-ups in the workplace, the EAT
found that, as both men and women might object, the overall effect was
neutral. By contrast, in British Telecommunications v Williams369 the EAT
held that because sexual harassment was gender-specific there was no need
for a comparison between the position of a man and a woman. In a similar
362

Decree of 18 Sep 1992. For fuller details, see (1992) 227 European Industrial Relations
Review 12.
363
Ibid.
364
For the full text see vol 59 Equal Opportunities Review, Jan/Feb 1995, pp 3941.
365
Ibid p 39.
366
Criminal Justice and Public Order Act, 1994. For details, see vol 58 Equal Opportunities Review, Nov/Dec 1994, p 34. See also, the Protection from Harassment Act 1997,
noted by B Barrett (1998) 27 Industrial Law Journal 330.
367
[1993] IRLR 373.
368
[1994] IRLR 440. Noted by A McColgan (1995) 24 Industrial Law Journal 181. See
also, the note by M Rubenstein in vol 57, Equal Opportunities Review, Sept/Oct 1994, pp
246. Rubenstein cites the US case of Robinson v Jacksonville Shipyards Inc (DC Fla 1991,
57 FEP Cases 971) in which the District Court found that sexualisation of the workplace
imposes burdens on women that are not borne by men, as evidence of a more sound approach.
369
[1997] IRLR 668.

208

Community Social Legislation

vein, the EAT in Institu Cleaning v Heads,370 ruled that a derogatory remark
by a manager about a woman employees breasts subjected her to a detriment and, when the employer failed to satisfactorily investigate the complaint, the employee was justified in her decision to resign and claim
constructive unfair dismissal.
Several conclusions can be drawn from these developments. The
Recommendation and Code have prompted some Member States to act
unilaterally to improve standards rather than wait for a Community-level
measure offering only minimum requirements. In this way the resulting
national legislation may be much stronger than a putative binding Community-level measure would have been. In addition, in certain circumstances, the national courts can draw upon the Equal Treatment Directive
and apply it to unacceptable sexual harassment where it causes unlawful
sex discrimination outlawed by the Directive. While such developments can
be seen as positive it must be recognised that several Member States have
not responded with national legislation or codes of conduct and the Commission has no power to bring infringement proceedings. Moreover, the
interpretative obligation rests with national courts rather than the Court of
Justice. Indeed a recent survey has shown that while all Member States have
responded to the Recommendation and Code to a greater or lesser degree,
there are still numerous gaps in national laws and an absence of effective
procedures for implementing them.371 Evidence suggests that action has
been least effective in precisely those Member States where, for societal
reasons, such behaviour is most prevalent and awareness is at the lowest
level.372
The Commission Recommendation, together with parallel institutional
declarations,373 has created a momentum for binding legislation in this area.
Rubenstein has noted that it was necessary to test the adequacy of existing national remedies in the courts before a new Directive could be considered.374 By 1995 the Commission had formed the view that it was
necessary to bring forward a binding Community instrument on sexual
harassment at work based on the 1991 Recommendation.375 This was not
a view shared by the Council, which made no reference to such a proposal
in its ensuing decision on an action programme for 19962000.376 In order
370
[1994] IRLR 4. See also, Bracebridge Engineering v Derby [1990] IRLR 3; cf Porcelli v
Strathclyde Regional Council [1986] IRLR 134.
371
Gregory, n 361 above at 181.
372
Ibid at 188.
373
See Council Declaration of 19 Dec 1991 on the implementation of the Recommendation and Code of Practice, OJ 1992, C27/1; European Parliament Resolution of 22 Oct 1991
on the protection of the dignity of men and women at work, OJ 1991, C305/36; and an
Opinion of the Economic and Social Committee of 30 Oct 1991, OJ 1992, C14/4.
374
See the note by M Rubenstein (1992) 21 Industrial Law Journal 70 at 70.
375
COM(95) 381, n 352 above, p 27.
376
Dec 95/593/EC, OJ 1995, L335/37.

Soft LawFilling the Gaps? 209

to revitalise this idea the Commission embarked on a new study of sexual
harassment in the workplace.377
In its study the Commission concluded that, firstly, despite the existence
of the Recommendation and Code, there is no universal definition of what
constitutes sexual harassment and this has made it more difficult to objectively measure and quantify. Secondly, the percentage of female employees
who have received unwanted sexual proposals, and therefore experienced
some form of sexual harassment, can be estimated at between 40 per cent
and 50 per cent. Thirdly, the level of awareness of this phenomenon in the
Member States is very poor. This lack of awareness is illustrated by the lack
of proper legislation addressing the issue in most Member States.378
Following on from a series of parallel consultations starting in 1996, the
Commission have published proposals to revise Directive 76/207,379 which,
for reasons of coherence with the Article 13 EC directives,380 and taking
the definition in the Code as the point of reference, defines sexual harassment in a similar way. Hence Article 1a of the draft Directive contains the
following definition:
Sexual harassment shall be deemed to be discrimination on the grounds of sex at
the workplace when an unwanted conduct related to sex takes place with the purposes or effect of affecting the dignity of a person and/or creating an intimidating,
hostile, offensive or disturbing environment, in particular if a persons rejection of,
or submission to, such conduct is used as a basis for a decision which affects that
person.

Thus soft law has served a transitional purpose and the stage of hard law
legality approaches.381

(3) Commission Opinion on an Equitable Wage

The Commissions Opinion on an Equitable Wage, issued on 1 September
1993,382 is, by contrast, an example of soft law-making falling within the
377
Sexual Harassment at the Workplace in the European Union (European Commission,
Brussels, 1999).
378
See the Commissions Explanatory Memorandum accompanying its proposal of 7 June
2000 for a Directive of the European Parliament and of the Council amending Council Dir
76/207/EEC on the implementation of the principle of equal treatment for men and women
as regards access to employment, vocational training and promotion, and working conditions,
COM(2000) 334, para 15. The Commission have also noted that several non-EU countries
have legislation prohibiting sexual harassment on their statute books viz: Title VII of the USA
Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1); Canadian Charter of Human Rights and
Freedoms, s 10.1; and s 27 of the Australian Sex Discrimination Act, 1984.
379
COM(2000) 334, ibid and COM(2001) 321 of 25 Sept 2001. The revised proposal was
issued after the Council adopted Common Position 32/2001, OJ 2001, C307/5, on 23 July 2001.
380
Ibid para 18.
381
See Wellens and Borchardt, n 348 above at 282.
382
COM(93) 388.

210

Community Social Legislation

weakest category of soft law, comprising of broad statements of principle

in areas on the fringes or even outside of Community competence where
there is no realistic prospect, nor any clear intention, of bringing forward
binding legislative proposals in the foreseeable future. Although point 5 of
the Social Charter had called for all employment to be fairly remunerated
and for workers to be assured of an equitable wage, the Action Programme
merely promised a non-binding opinion.383 Indeed, by the time the Opinion
was issued, the majority of Member States had agreed, by virtue of Article
2(6) of the Agreement on Social Policy that pay was to be excluded
altogether from the new legal bases in Article 2(2) and 2(3) thereof, a point
later reinforced by the inclusion of an identical clause in the revised Article
137(6) EC. At the very least, this has precluded the Community from adopting binding legislation on pay as part of mainstream social policy.
In the preamble to the Opinion the Commissions limited horizons are
made transparent thus:
. . . the Commission intends neither to enact legislation nor to propose binding
instruments on pay. It does, though, take the view that it would be apposite to
pinpoint a number of basic principles regarding equitable pay . . .

Therefore the Commission admits that it is merely asserting the fact that
low pay is an important problem for a significant proportion of the
working population. This air of caution permeates the entire document.
The Commission is reduced to generalities. Hence, the concept of an equitable wage for workers is defined in the Opinion as:384
. . . a reward for work done which in the context of the society in which they live
and work is fair and sufficient to enable them to have a decent standard of living.

There is no prospect therefore of either a fixed Community minimum wage,

which would almost certainly be impractical, or even guidance on a target
reference wage. Instead all operational definitions are left to national,
regional or sectoral levels and Member States are encouraged to take measures to establish negotiated minima. Moreover, in an important rhetorical
commitment, all workers should receive an equitable wage irrespective
of gender, disability, race, religion, ethnic origin or nationality. While this
commitment may appear to be platitudinous it can be seen as a helpful
guideline for the non-discrimination guarantee that was to emerge in the
Article 13 EC anti-discrimination directives that, because they fall outside
the social policy provisions, are not affected by the exclusion in Article
137(6) EC. Hence, Article 3(1)(c) of the Race Equality Directive385 extends
the principle of non-discrimination to include employment and working
383
384
385

Social Europe 1/90, p 59.

Point 1 of the Opinion.
Dir 2000/43, OJ 2000, L180/22.

Soft LawFilling the Gaps? 211

conditions, including dismissals and pay. An identical clause can be found
in Article 3(1)(c) of the Framework Employment Directive.386
In order to provide a further justification for straying into the area of
wages, the Opinion draws upon the commitment of the Community to reinforce economic and social cohesion arising, in particular, from disparities
of income affecting particular regions and groups in society.387 In the preamble the Commission merely note the persistence of very low wage levels
raises problems of equity and social cohesion which could be harmful to
the effectiveness of the economy in the long term. An opportunity was
missed, however, to draw a direct link with the wider goals of social cohesion encompassing the agenda pursued through the separate Commission
Communication on Social Exclusion388 and the Council Recommendation
on common criteria concerning sufficient resources and social assistance in
social protection systems.389 In the absence of a link with related soft law
instruments emanating from the Social Charter and the Action Programme,
the Opinion on an Equitable Wage is left rudderless.
The Opinion also fails to directly address the issue of social dumping
arising, in part, from persistent low pay. Indeed the Commission state that
measures should not have a negative impact on job creation. This would
appear to give credence to the statistically unproven argument that a
minimum wage, or indeed improved pay and conditions in general, are
inimical to employment creation and retention.390 Evidence from the UK,
where a minimum wage was introduced in 1998, indicates otherwise,391
confirming the predictions of those who had suggested that a minimum
wage would not harm employment, or cause competitive disadvantage and
would alleviate poverty.392
As an isolated statement the Opinion is laudable but, without any firm
linkage with the Treaty and other Community instruments, and in the
absence of strict guidelines or machinery for monitoring its effect, it is very
difficult to discern any practical impact. Indeed, early evidence suggested
that several Member States were ignoring the Opinion altogether. For
example, the UK initially proceeded to abolish all of its sectoral wage setting
machinery outside of agriculture,393 while Spain reduced its minimum wage
for young workers and, in the Netherlands, the minimum wage was
386

Dir 2000/78, OJ 2000, L303/16.

See Art 158 EC [ex 130a EEC].
388
COM(92) 542. See also, the Opinion of the Economic and Social Committee on Social
Exclusion, OJ 1993, C352/48.
389
Council Recommendation 92/441/EEC, OJ 1992, L245/46.
390
For a counter-argument, see S Deakin and F Wilkinson, Rights vs Efficiency? The
Economic Case for Transnational Labour Standards (1994) 23 Industrial Law Journal
289.
391
See Incomes Data Services (IDS) Report 802, Feb 2000: <www.incomesdata.co.uk>.
392
See Issue 29, New Review of the Low Pay Unit (Sept/Oct 1994) pp 812.
393
Ibid.
387

212 Community Social Legislation

frozen.394 Although the UK has now embraced the concept of a minimum
wage there is no evidence to suggest that this is remotely connected with
the Commissions Opinion.
In a follow-up report,395 the Commission acknowledged that most
Member States had the basic planks of legislation towards an equitable
wage in place before the Opinion was issued, but were opposed to intervention in wage setting. In some Member States there had been a widening
of wage inequalities, particularly as a result of changes in the ways that
wages are determined (growth in performance-related pay, decline in traditional forms of collective bargaining) and of changes in the labour market
(growth in non-standard forms of employment and casual employment).
These developments have reduced control over monitoring and maintaining an equitable wage, as well as the ability of governments to influence
wage policy. Some Member States have even questioned the value of Community-wide data on this subject, citing the problem posed by differences
in standards of living, wage rates and non-wage costs.
To conclude, the Commissions Opinion on an Equitable Wage represents
an ineffective form of soft law. Lacking any clear point of reference in the
Treaty, and detached from other soft law programmatic activity, it has failed
to have a dynamic effect on either the laws or the behaviour of the Member
States or the social partners. Moreover, the Communitys commitment to
an equitable wage is vague and ambiguous. When the Community eventually returns to this question, perhaps imminently now that the Euro has
made pay differentials more transparent, a completely fresh start will be
required.

V CONCLUSION

In this chapter we have seen how a variety of legislative and non-legislative

methods, at times bold and imaginative, were applied between 1989 and
1994 to deliver the Social Charter Action Programme at a time when consensus was lacking and the revised EEC Treaty offered only limited pathways for social policy measures. Article 118a EEC guided the selected health
and safety measures, placing an emphasis on specific risks in the workplace
for certain groups, such as pregnant workers and young workers, while
allowing Member States a wide discretion on implementation consistent
with the flexibility required by that provision. With the exception of the
basic rights to maternity leave, set at a low threshold, and paid annual leave,
an enhancement in several Member States, these directives have failed to
394
See the Commissions report on the European Employment Strategy: Recent Progress
and Prospects for the Future, COM(95) 465, p 29.
395
Equitable wagesA progress report, COM(96) 698, issued on 8 Jan 1997.

Conclusion 213
provide uniform exercisable rights for workers. Despite the fact that Article
118a EEC introduced an autonomous legal base for social policy, analysis
of the legislative output in this period does not support the Commissions
assumption of a solid base of European social legislation.396
Equally, while the Employee Information (Contract or Employment
Relationship) Directive offers helpful additional information to employees
about their terms of employment which, in certain circumstances, can be
relied upon in legal proceedings, it does not intrinsically strengthen the
framework of legal regulation of the individual employment relationship in
the Member States. Given the requirement for unanimity under Article 100
EEC [now 94 EC], and the exclusion of social policy from internal market
measures under Article 100a(2) EEC [now 95(2) EC], this is hardly surprising, but as with the employment protection directives in the first Social
Action Programme, it further underlines the limitations of the market
approximation route.
Moreover, by evaluating two examples of soft law adopted under the
Action Programme, it has been demonstrated that, although such instruments fulfil a variety of purposes consistent with the Communitys integrationist goals, filling gaps, sometimes strengthening the application of related
legislation, and prompting action at national level, ultimately, they are not
a satisfactory substitute for binding legislation designed to ensure a fair and
genuine platform of rights available to the Community worker as envisaged
by the Social Charter. Indeed the Communitys heavy reliance on nonbinding measures to secure a significant proportion of the measures identified in the action programme only serves to reveal the difficulties faced by
the Community institutions in fulfilling the aims of the Social Charter, at
all levels, notwithstanding the Commissions superficially impressive ticklist of achievements. Rather soft law, in all its various forms, should be
understood as being wholly transitional, legitimising and encouraging
conduct at national level to conform to a Community norm which, if it is
not effectively carried out through legislative action or judicial interpretation at a national level, must be achieved through binding Community law
at a later date.
Indeed it was precisely for this reason that, at Maastricht, the majority
of Member States sought to amend Articles 117122 EEC and replace them
with a new Social Chapter in order to address the wide gap between the
powers available under the current legal bases and the ambitions set out in
the Charter.397
396

COM(94) 333. Introduction, para 22.

Working Document submitted to the Intergovernmental Conference on Political Union,
SEC(91) 500 of 30 March 1991, p 84.
397

6
The Treaty on European Union:
Transition or Transformation?
Maastricht, delightful town though it is, did not nurture the lucid expression of
straightforward ideas.1

I INTRODUCTION

ITH THE INK barely dry on the Single European Act, the Communitys leaders convened at Hanover in June 1988 to contemplate the next stage of Europes navigation towards the uncertain
destination of ever closer union.2 Two divergent conceptual journeys were
being mapped. The first route would involve sailing through stormy waters
in pursuit of full political union based on a federal constitutional model
and, even more adventurously, the possibility of arriving at a union founded
on the fundamental rights of its citizens. The second course would entail
proceeding steadily through apparently becalmed seas towards full economic and monetary union and thereby to complete the construction of
Europes economic constitution.3 In this second conception of Europes
journey, a separate vessel would set sail on a cautious passage towards a
kind of political union always following in the slipstream of the main
voyage towards economic and monetary union. In the event, the European

1
G Lyon-Caen, Subsidiarity in P Davies, A Lyon-Caen, S Sciarra and S Simitis (eds)
European Community Labour Law: Principles and Perspectives (Clarendon Press, Oxford,
1996) 4962 at 62.
2
See A Shonfield, Europe: Journey to an Unknown Destination (Harmondsworth, London,
1973); E Wellenstein, Unity, Community, UnionWhats in a Name? (1992) 29 Common
Market Law Review 205; R Dehousse, From Community to Union in R Dehousse (ed)
Europe After Maastricht: An Ever Closer Union? (Law Books in Europe, Munich, 1994) 515.
3
See M Streit and W Mussler, The Economic Constitution of the European Community:
From Rome to Maastricht (1995) 1 European Law Journal 5; C Joerges, European
Economic Law, the Nation-State and the Maastricht Treaty in Dehousse, ibid 2962; N
Walker, European Constitutionalism and European Integration [1996] Public Law 266; M
Poiares Maduro, We the Court: The European Court of Justice and the European Economic
Constitution (Hart, Oxford, 1998).

216

The Treaty on European Union

Council chose the second option even though this too was fraught with
many hidden dangers.
Once the European Council had set the course, a Committee for the Study
of Economic and Monetary Union (EMU) was assembled, chaired by the
Commission President Jacques Delors.4 The Committee recommended a
three-stage process towards EMU: closer co-ordination of national economic and monetary policies; establishment of an independent European
Central Bank; and replacement of national currencies by a single European
currency.5 The Committee advised that Treaty amendments would be
required6 and it followed that full economic integration had to be accompanied by fundamental institutional reform, including subsidiarity7 and
deeper political integration, to balance economic and monetary union. For
Social Europe the stakes could not have been higher. EMU would require
a tightening of public expenditure, reform of welfare systems, wage flexibility and greater labour mobility.8 Delors recognised the need for countervailing policies9 and, in the context of the negotiations for the planned
Intergovernmental Conference (IGC) on EMU, a two-pronged approach to
social policy was required to, firstly, complete the Social Charter Action
Programme through the adoption of a robust Social Chapter, replacing Articles 117122 EEC and, secondly, to flank macroeconomic policy with a
Community-wide strategy to combat unemployment and social exclusion
through active labour market and anti-poverty programmes.10 Further
development of the process of social dialogue was regarded as a central
plank linking both elements. The challenge that lay ahead was to balance
the Communitys ambitions for employment rights for individual workers
with a wider agenda aimed at opening up markets to create employment.
In the remaining chapters we will trace the evolution of these two interlinked elements of social policy as they have developed in the 1990s and
2000s.

4
Report on Economic and Monetary Union in the Community (Delors Committee)
(European Communities, Luxembourg, 1989). The Committee was set up by the European
Council in June 1988 and was composed of central bank governors and independent experts.
5
See T PaddoaSchioppa, The Road to Monetary Union in Europe: the Emperor, the
Kings and the Genies, revised edn (OUP, Oxford, 2000) pp 11325; F Snyder, EMU
Metaphor for European Union? Institutions, Rules and Types of Regulation in Dehousse,
n 2 above, 6399; J-V Louis, A Monetary Union for Tomorrow? (1989) 26 Common Market
Law Review 301.
6
Arts 102a109m [now 98124] EC.
7
Delors Committee, n 4 above, p 14 (para 19).
8
Ibid p 19 (para 29). See P Teague, Monetary Union and Social Europe (1998) 8 Journal
of European Social Policy 117.
9
Ibid p 18 (para 29).
10
The term flanking policies denotes areas where the Community contributes to the policies of the Member States but does not possess a competence to harmonise laws. See T Hervey,
European Social Law and Policy (Longman, Harlow, 1998) p 26.

The Next Stage of the Process 217

II THE NEXT STAGE OF THE PROCESS

In the period between June 1988, when the IGC process was launched, and
December 1991, when the negotiations were completed at Maastricht, a
cascade of events transformed the post-war configuration of Europe. The
Berlin Wall fell, the two Germanys were united, the Soviet Union imploded
and the Yugoslav crisis escalated in a roller coaster of change that induced
a dynamic effect on the process of political integration. In the post-Cold
War era a new and accelerated phase of European integration was needed
to prepare for a reconstructed and enlarged European political space. In
April 1990 the leaders of France and Germany had published a joint letter
calling for a second IGC on political union with the objective of strengthening the democratic legitimacy of the proposed union, rendering its institutions more efficient and implementing a common foreign and security
policy.11 By the end of 1990 both the Dutch Government12 and the
European Parliament13 had issued detailed proposals for political union and
four European Council meetings14 had been held to carry forward the
momentum for faster and deeper integration.
In the run up to the parallel IGCs, the Communitys leaders were presented with two competing models for a European Union.15 One model,
supported by political integrationists, envisaged the Union growing endogenously, like a tree sprouting new branches from a single supranational
trunk. This model would preserve and reinforce the unitary structure of the
European Communities while allowing for the development of new competences in areas such as justice and home affairs. An alternative model,
favoured by intergovernmentalists, presented the Union in the form of an
imaginary Ionic temple supported by three columns. The central column or
pillar would represent a strengthened supranational element building on the
Community acquis while the two remaining columns would preserve and
develop intergovernmental co-operation in areas of home and foreign
affairs that had hitherto been the subject of ad hoc arrangements. The
European Council would be positioned on the entablature of the temple
representing the institutional apex of the Union. While the Dutch Presidency favoured the arboreal paradigm they ultimately had to submit to a
model closely resembling the temple-like superstructure preferred by France
11
Kohl-Mitterand letter of 20 April 1990. The Dublin European Council of 25/26 June
1990 formally agreed to convene a parallel IGC on political union. See R Corbett, The Treaty
of Maastricht (Longman, Harlow, 1993) p 126.
12
Memorandum of May 1990, Possible Steps Towards European Political Union. Ibid pp
12733.
13
The Martin II Report of 11 July 1990: Rapporteur David Martin MEP. Ibid pp 11219.
14
In Dublin (April and June) and Rome (October and December). Ibid pp 97103.
15
See Europe After Maastricht, Second Report, House of Commons Foreign Affairs
Committee, HC 642-I, Session 199293 (HMSO, London, 1993) paras 25 and 26; H Young,
This Blessed Plot: Britain and Europe from Churchill to Blair (Macmillan, London, 1998) p 427.

218 The Treaty on European Union

and the UK. Shorn of any reference to federalism, the Treaty that emerged
represented a transition rather than a transformation16 of the European constitution.17 As a statement of political intent the Member States established
among themselves a European Union as a new stage in the process of creating an ever closer union among the peoples of Europe in which decisions
were to be taken as openly as possible and as closely as possible to the
citizen.18 Nominally the Union was established, but the mechanisms contained within the Treaty were not yet capable of fully realising the objective. Rather, as Everling has noted, they were a stage along the road towards
it.19 Hence the Union is a political construct that builds upon but does not
displace the Community legal order.20
The emergent Union would be served by a single institutional framework21 but only in the sense that the Community institutions were to be
put at the disposal of the Union without any concomitant role in its functioning. By creating two distinct but interdependent legal regimes, with the
European Council as the guiding institution, Maastricht represented a
historic compromise between the supranational and intergovernmental
methods of European integration.22 While the formal presentation of the
concept of a single institutional framework was intended to provide consistency and continuity, while respecting and building upon the Communitys acquis,23 this failed to hide the fact that, even within the Community
pillar, this was a threadbare compromise with several opt outs and reservations that, although intended to be transitional,24 validated an ongoing
process of differentiated integration.25 Indeed, in the absence of either a
political consensus or a coherent constitutional blueprint for political union,
16
See in the context of the 1992 process, J Weiler, The Transformation of Europe (1991)
100 Yale Law Journal 2403; cf P Allott, The European Community is Not the True
Community (1991) 100 Yale Law Journal 2485.
17
The Court of Justice has described the EEC Treaty as a constitutional charter in Case
294/83, Parti Ecologiste Les Verts v European Parliament [1986] ECR 1339, para 23. See
also, Opinion 1/91 [1991] ECR 6079, paras 21 and 46.
18
Art A [now 1] TEU.
19
See U Everling, Reflections on the Structure of the European Union (1992) 29 Common
Market Law Review 1056 at 1059; Editorial Comments, Post-Maastricht (1992) 29
Common Market Law Review 199, where the editors, at 202, refer to the new Treaty as a
house half-built . . . suddenly abandoned by the builders.
20
Art A [now 1] of the Treaty on European Union (TEU) 1993, states that the Union shall
be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty.
21
Art C [now 3] TEU. See P Demaret, The Treaty Framework in D OKeeffe and P Twomey
(eds) Legal Issues of the Maastricht Treaty (Wiley Chancery, London, 1994) 311.
22
See Dehousse, n 2 above at 12.
23
Art C [now 3] TEU.
24
Art N.2 TEU obliged the Member States to review the Treaty by means of an IGC by
1996 at the latest.
25
See generally C-D Ehlermann, Increased Differentiation or Stronger Uniformity in
J Winter, D Curtin, A Kellermann and B de Witte (eds) Reforming the Treaty on European
UnionThe Legal Debate (Kluwer, The Hague, 1996) 2750; A Stubb, Differentiated Inte-

Eleven March Ahead 219

the outcome was a hybrid Treaty with a fragmented acquis aptly described
by Curtin as a Europe of bits and pieces.26 Nowhere was this more apparent than in the social provisions contained in the annexed Protocol and
Agreement on Social Policy.

III ELEVEN MARCH AHEAD

During 1990 and 1991, as the process of drafting a Treaty on European

Union unfolded, a concerted attempt was made to strengthen the social provisions in the revised Treaty. The European Parliaments Resolution on the
IGC of 11 July 199027 endorsed the inclusion in Article 3 EEC of common
action in the field of social affairs and employment and deletion of the single
market derogation in Article 100a(2) EEC. Parliament proposed the extension of Article 118a EEC to cover the continued improvement of living standards and social provisions, equal opportunities, training, minimum levels of
social security, and provisions for union law and collective bargaining. It was
envisaged that these social rights would be extended to persons from third
countries. Article 119 EEC was to be strengthened to include the objective of
equal opportunities at work and in society. The procedures for social dialogue in Article 118b EEC were to be developed by the adoption of a legal
framework for European collective bargaining. Memoranda supporting this
approach were issued by Denmark28 and the Netherlands29 and, once the IGC
process began in earnest, proposals to strengthen the Social Chapter were
published by several Member States30 and the Commission.31 Even at this
stage, however, the Commission proposed that the Communitys role should
be limited to complementing and supporting the action of the Member States
through laying down minimum standards.32 Belgium suggested the idea of
legally binding framework agreements at Community level between management and labour. This concept was taken forward by the social partners
who negotiated an accord on a revised draft of Articles 118, 118a and 118b33
gration (1996) 34 Journal of Common Market Studies 283; F Tuytschaever, Differentiation
in European Union Law (Hart, Oxford, 1999); J Usher, Variable Geometry or Concentric
Circles: Patterns for the EU (1997) 46 International and Comparative Law Quarterly 243.
26
D Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces (1993)
30 Common Market Law Review 17.
27
See Corbett, n 11 above, pp 11219.
28
4 Oct 1990. Ibid pp 15964.
29
26 Oct 1990. Ibid pp 17386.
30
Belgium, France and Italy. Ibid p 50.
31
European Commission proposal on the social dimension and the development of human
resources. See Corbett, ibid pp 23540.
32
Ibid pp 5051.
33
The agreement was signed by the European Trades Union Confederation (ETUC) the
Union of Industrial and Employers Confederations of Europe (UNICE) and the European
Centre of Enterprises and Public Participation (CEEP). See Social Europe 2/95, p 149. For

220

The Treaty on European Union

EEC that was to form the basis for the final text presented to the IGC held at
Maastricht on 9/10 December 1991.
When the European Council convened at Maastricht the draft Social
Chapter, hitherto an issue of secondary importance was to prove the biggest
sticking point. John Major, the UKs new Prime Minister,34 was personally
inclined to reach a deal but he pulled back in the face of a threat of resignation from his Employment Secretary.35 After six hours of resistance, one
against 11, it was clear that the whole Treaty was in jeopardy and, at the
behest of the Dutch Prime Minister, Ruud Lubbers, a messy solution was
reached whereby the social policy provisions in Articles 117122 EEC were
left essentially unaltered36 but, instead, all 12 Member States approved a
separate Protocol on Social Policy37 which was appended together with the
draft Social Chapter now converted into an annexed Agreement on Social
Policy38 applicable only to 11 Member States with the UK wholly excluded.
The Maastricht compromise led to a bifurcation of Community social
policy. Two autonomous regimes were createdone for a Community of
12, bounded by social provisions in the body of the revised and renamed
European Community (EC) Treaty, another for a Community of 11, governed by the Agreement and two separate Declarations. Each regime would
be based on its own freestanding range of policy objectives and legislative
routes. Remarkably, the 11 were prepared to undermine the essential unity
of the treaties, as an expression of their combined will to implement the
1989 Social Charter39 even if this meant that the UK was to be left behind
for a temporary but indeterminate period. For the 11, the option of a twinstream approach to Community social policy appeared, despite its attendant risks, to offer a more attractive prospect than a further period of
stagnation. Moreover, by using the ingenious device of the Protocol, they
had created for themselves the capacity to apply a form of Community law,
or majority acquis, that would extend beyond the limited scope of Article
118a EEC, albeit at the expense of 26 million workers based in the UK who
were to be exempted from the Agreements territorial effects.40 From the
perspective of the UK, isolation and opprobrium at European level was
comment, see B Bercusson, Maastricht: a fundamental change in European labour law (1992)
23 Industrial Relations Journal 177 at 177.
34
Major succeeded Margaret Thatcher in an internal party coup in November 1990.
35
Michael Howard MP. See Young, n 15 above, pp 43132.
36
Apart from an amendment to Art 118a EEC allowing for legislation to be adopted in
accordance with the co-operation procedure. Arts 12327 [now 14650] EC concerning the
European Social Fund, education, vocational training and youth, contain enhancements and
new Community competences.
37
Protocol No 14 on Social Policy.
38
See the Final Act of the Intergovernmental Conferences.
39
Protocol on Social Policy, point 1.
40
See the Commissions 1994 report on Employment in Europe, COM(94) 381, p 184.
This figure is based on the total number of EU nationals working in the UK at the time when
the Maastricht Treaty came into force in Nov 1993.

Eleven March Ahead 221

preferable to any compromise that might further divide an increasingly
fractious and Euro-sceptic governing party. Indeed the Major Government
promoted the Maastricht deal on the questionable assumption that the UK
could opt-out from or delay any future Commission proposals that ran
counter to their own deregulatory approach to social policy.41
Four interlocking functions were performed by the Protocol. The first was
purely mechanistic. Without the Protocol, contracted to by the 12, it would
not have been possible for the 11 to have recourse to the institutions, procedures and mechanisms of the Treaty for the purposes of taking among
themselves and applying as far as they are concerned the acts and decisions required to give effect to the Agreement.42 This procedure raises a
whole raft of questions. How can 11 use procedures designed for 12? Is
such an Agreement part of Community law? What is the legal status of
any acts and decisions? What happens if there is a conflict of interpretation between measures adopted under the two different legislative routes?
In the discussion below I will attempt to answer these questions in the
context of the academic literature.
Secondly, the Protocol operated to exempt the UK from the deliberations and adoption by the Council of Commission proposals made on the
basis of the Protocol and the Agreement.43 Within the Council of Eleven a
qualified majority would consist pro rata as 52 out of 76 votes instead of
62 out of 86.44 Any acts adopted by the 11 and any financial consequences
thereof, other than administrative costs entailed by the institutions, would
not be applicable to the UK.45 One bizarre but logical consequence of this
arrangement was that, outside the arena of the Council, representatives or
appointees from the UK, whether members of the Commission, the
European Parliament or the Economic and Social Committee, or sitting as
judges at the Court, or as social partners negotiating under the procedure
in the Agreement,46 were able to fully participate at all operative stages
under the Agreement because they were supranational not intergovernmental actors.47 It should be added that there was no specific procedure laid
down in the Protocol for the UK to accede to the Agreement and reunite
the combined acquis at a future date. This matter would have to be resolved
41
Major rather over egged his apparent victory. His spokesman declared that it was game,
set and match to the British. Such triumphalism was short-lived. Ratification was only
achieved in July 1993 after Major had threatened his rebellious backbenchers with a no confidence vote and near certain electoral defeat. See Young, n 18 above, pp 4324.
42
Protocol on Social Policy, point 1.
43
Ibid point 2, para 1.
44
Ibid point 2, para 2.
45
Ibid point 2, para 3.
46
Under the procedure in Art 4 of the Agreement discussed below.
47
In support of this view, see P Watson, Social Policy After Maastricht (1993) 30 Common
Market Law Review 481 at 5035; G Brinkmann, Lawmaking under the Social Chapter of
Maastricht in P Craig and C Harlow (eds) Lawmaking in the European Union (Kluwer,
London, 1998) 23961 at 243.

222 The Treaty on European Union

if, and indeed when, the UK decided that it wished to sign up to the Agreement. The most logical procedure would involve a Treaty amendment with
transitional arrangements, the route eventually chosen in 1997,48 although
it was suggested at the time that it might be possible for the UK to adhere
directly to the Agreement without amending the Protocol.49
Thirdly, the Protocol determined the relationship between the Agreement
and the social policy provisions that were preserved in Articles 117122
EC [ex EEC]. The first paragraph of the Protocol provided that the Protocol and Agreement were without prejudice50 to the provisions of the EC
Treaty particularly those relating to social policy which constitute an integral part of the acquis communautaire. The words without prejudice
appeared to give primacy to the whole Community route. Once the Agreement came into effect, on 2 November 1993, the Commission swiftly issued
a Communication on its application.51 According to the Commission, the
Agreement would operate as follows. All social policy proposals were to be
formally introduced under the mainstream Treaty bases. The Agreement
would only be brought into play on a case by case basis52 at a later stage
as a fall-back device where the UK opposed the measure in question in circumstances where Article 118a [now 137] EC was inapplicable and Articles 100 or 235 [now 94 and 308] EC inappropriate.53 From the perspective
of the Commission this twin-track54 approach would be wholly complementary and serve to minimise the potentially disintegrative effects of the
Protocol. The Commissions principal objective was:55
. . . to promote the development of a European social policy which will benefit all
the citizens of the Union and will therefore enjoy, as far as is possible, the support
of all the Member States.

It was for precisely this reason that the Commission chose not to follow
the advice of the Economic and Social Committee (ECOSOC) which had
suggested, in its Opinion on the Communication,56 that the effect of the
48

See ch 8.
See B Bercusson, The Dynamic of European Labour Law after Maastricht (1994) 23
Industrial Law Journal 1 at 5. See also, Brinkmann, n 47 above at 243; cf M Weiss, The Significance of Maastricht for European Community Social Policy (1992) 8 International Journal
of Comparative Labour Law and Industrial Relations 3 at 3.
50
Emphasis added.
51
See the Commissions Communication concerning the application of the Agreement on
Social Policy, COM(93) 600 final of 14 Dec 1993.
52
Ibid para 8.
53
In light of the application of the principle of subsidiarity in Art 3b [now 5] EC, discussed
below.
54
See J Shaw, Twin-track Social Europethe Inside Track in OKeeffe and Twomey, n 21
above, 295311.
55
COM(93) 600, para 8. Emphasis added.
56
OJ 1994, C397/40, para 1.4.4.
49

Eleven March Ahead 223

Protocol was to give priority to the Agreement in order to guarantee
the consultation rights of management and labour under the Agreement.57
In order to reassure ECOSOC on this point, the Commission resolved to
consult management and labour on all proposals, in accordance with the
procedure in Article 3 of the Agreement,58 irrespective of the route being
followed.59
Fourthly, the Protocol was annexed to the EC Treaty60 and the Agreement was annexed to the Protocol.61 Both the methodology and the terminology used were the subject of a vigorous debate in the contemporary
academic literature concerning the legal status of both the Protocol and
the Agreement. The arguments were far from clear-cut. Indeed, as the
Commission observed at the time, this situation has never occurred in
the Community before.62 Unlike the annexed EMU Protocols,63 which
allowed for exemptions for the UK and Denmark from the new provisions
concerning monetary union and therefore kept all formal decision-making
within the ambit of the main Treaty provisions, the Social Protocol took
those decisions outside this central arena and, by virtue of the Agreement,
created an extraneous decision-making arrangement operating in parallel
with the retained social provisions in the EC Treaty.
Barnard has persuasively argued that although the Protocol was valid as
an agreement in international law it breached the essential unity that underpins Community law and, by allowing a majority of Member States to
pursue their own course, it was contrary to the fundamental principles of
the Community because it would create a barrier to free movement of
persons, undermine fundamental rights and positively distort competition.64
The potential for social dumping as a direct or indirect consequence of the
Agreement was vividly demonstrated in 1993 when, for reasons based on

57
For a comprehensive case in support of the ECOSOC view, see B Bercusson and J van
Dijk, The Implementation of the Protocol and Agreement on Social Policy of the Treaty on
European Union (1995) 11 International Journal of Comparative Labour Law and Industrial
Relations 3. Van Dijk was the Rapporteur for the ECOSOC Opinion. Bercusson was the
Expert to the Rapporteur.
58
The first stage of consultation under the Agreement, discussed below.
59
Commission Communication on the Development of the Social Dialogue at Community
Level, COM(96) 448, Annex 1, p iv. See Brinkmann, n 47 above at 245.
60
Protocol on Social Policy, point 3.
61
Ibid first para.
62
Ibid p 1 of the summary.
63
Protocols No 11 and 12.
64
C Barnard, A Social Policy for Europe: Politicians 1:0 Lawyers (1992) 8 International
Journal of Comparative Labour Law and Industrial Relations 15 at 1821. See also, the editorial in (1993) 30 Common Market Law Review 445, where, at 448, the Agreement was
described as an institutionalised invitation to social dumping. See further, C McGlynn, An
Exercise in Futility: The Practical Effects of the Social Policy Opt-out (1998) 49 Northern
Ireland Law Quarterly 60.

224

The Treaty on European Union

labour costs, Hoover65 and Digital Equipment66 switched production to the

UK from, respectively, France and Ireland. In fact these cases, whilst they
raised understandable fears, pre-dated the ratification of Maastricht and,
moreover, as British trade unionists would quickly point out, traffic in the
other direction had been just as frequent, not least because of the ease with
which employers were able to sack staff under UK employment laws and
retreat to their continental bases.
Weatherill,67 while not entering the debate about the legality
of the Protocol and/or Agreement, has starkly portrayed its inherent
contradictions:68
The Protocol is not an attempt to manage diversity within a basic Community
framework in the manner of minimum harmonization. It arises from objections to
the existence of a Community framework. It does not share competence, it denies
it. It envisages a particular State competing against other States outside the control
of even a minimum Community rule.

Other authors, notably Everling69 and Vogel-Polsky,70 have specifically questioned the legality of the Agreement on the basis that it was not part of the
Protocol and therefore fell outside the corpus of Community law. This argument has been developed by Curtin who refers directly to Article 239 [now
311] EC, where it is stated that protocols annexed to the Treaty by
common accord of the Member States shall form an integral part thereof .71
Therefore the Social Protocol, along with 16 other protocols,72 would
become part of Community law on ratification of the Treaty.73 Curtin subtly
65
The Hoover affair aroused considerable political debate. On 25 Jan 1993 the president
of Hoover Europe announced the closure of the companys factory near Dijon with the loss
of 600 out of 700 jobs. These activities were shifted to an existing plant near Glasgow in
Scotland where wages and associated labour costs were lower. Martine Aubrey, the French
Minister of Labour at the time, said that it is probably not a coincidence that Great Britain
has not signed the agreement by the eleven. For John Major, the UK Prime Minister, the position was starkly simple. On 2 Feb 1993 he reminded Parliament that Jacques Delors had, as
President of the Commission, warned that the UKs opt-out had made Britain a paradise for
foreign investment. Rejecting the view that Britain was becoming the sweatshop of Europe
he declared, industry will locate where it can be most efficient and most competitive. See
European Industrial Relations Review 230, March 1993, pp 1420.
66
For comment, see Watson, n 47 above at 512.
67
S Weatherill, Beyond Preemption? Shared Competence and Constitutional Change in the
European Community in OKeeffe and Twomey, n 21 above, 1333.
68
Ibid at 29.
69
Everling, n 19 above at 1066.
70
E Vogel-Polsky, Evaluation of the social provisions of the Treaty on European Union
agreed by the European summit at Maastricht, DOC en/cm/202155 PE 115.405/I, p 3. For
comment, see E Szyszczak, Social Policy: a Happy Ending or a Reworking of the Fairy Tale?
in OKeeffe and Twomey, n 21 above, 31327 at 323.
71
Emphasis added. See Curtin, n 26 above at 45.
72
For example, in the social policy context, Protocol No 2 concerning Art 119 EC. On the
legality of this Protocol, see T Hervey, Legal Issues concerning the Barber Protocol in
OKeeffe and Twomey, n 21 above, 32937 at 3356.
73
In accordance with Art 236 EEC, now repealed.

Eleven March Ahead 225

argues, however, that while the Protocol was valid as Community law, the
status of the Agreement was less certain. As Curtin explains, notwithstanding the statement in the Protocol that it was without prejudice to the
provisions of the Treaty, the Agreement would, in practice, be capable of
undermining the cohesiveness of Community law and therefore any directives adopted under its provisions would not be synonymous with directives as defined in Article 189 [now 249] EC.74 Although Curtin does not
fully resolve the conundrum concerning the legal status of the Agreement,
her argument, if accepted, would have allowed for the preservation of the
hegemony of mainstream Community law directives and therefore avoided
the hijacking of the acquis.75 Such second-class directives would,
however, not be legally binding and would depend on the goodwill of the
Member States concerned for their implementation.76
Watson77 presents a compelling case for the legality of the Protocol and
the Agreement. While also relying on Article 239 [now 311] EC, Watson
argues that the Agreement could not be excised from the Protocol on the
basis that the Final Act of the IGCs annexed it to the Protocol and therefore both the Protocol and the Agreement were integral to the EC Treaty.78
The references in the Protocol to the Community institutions and directives
and indeed to Community action and dialogue at a Community level in
Articles 3 and 4 of the Agreement would have no meaning if the Agreement were to be merely intergovernmental.79 In addition, the implementation of the Agreement was founded upon the acquis and was therefore the
basis for binding Community laws applying to the 11, subject to the
scrutiny of the Court.
Ultimately Watsons argument, supported by Whiteford80 and Falkner,81
has proved the most convincing. From an integrationist perspective, the Protocol and Agreement conformed to the technical requirements for amending the EC Treaty and the operative novelty of the Agreement was capable
of being accommodated within the Community system on the basis that it
was transitional, would be extended to acceding States82 and would apply
only in situations where progress at a whole Community level was not

74

Curtin, n 26 above at 578.

Ibid at 57.
Ibid at 58.
77
Watson, n 47 above.
78
Ibid at 48991.
79
Ibid at 493.
80
See E Whiteford, Social Policy After Maastricht (1993) 18 European Law Review 202
at 2034.
81
See G Falkner, The Maastricht Protocol on Social Policy: Theory and Practice (1996) 6
Journal of European Social Policy 1.
82
Austria, Finland and Sweden joined the 11 other signatories on accession to full EU membership on 1 Jan 1995. They had already been committed to its provisions by virtue of their
membership of the European Economic Area established in 1993.
75
76

226 The Treaty on European Union

possible. Moreover, as Ehlermann explains,83 the Protocol and Agreement
represented a clear case of variable geometry and any directives adopted
would be binding as Community law among the 11 as reviewable acts consistent with the ERTA doctrine84 in the sense that they would be designed
to lay down a course of action binding on both the institutions and the
Member States85 concerned. In its 1993 Communication on the application
of the Agreement, the Commission, perhaps overstating the case, concluded
that the Agreement was soundly based in law and considered the Community nature of any directives adopted under the Agreement as beyond
doubt.86 Such directives would be territorial in the sense that they would
not be applicable to the territory of the UK, but in every other respect they
would be indistinguishable, in a formal sense, from other Community laws.
Hence, a UK national or a subsidiary of a British company, based in another
Member State, would be subject to its provisions.87 In practice these formal
arguments were to lead the Community institutions to accept the Agreement as a parallel form of Community law creating, for the purposes of
social law, a separate Community of Eleven, later Fourteen, sitting alongside a Community of Twelve, later Fifteen.88
Paradoxically, the last minute deal unhappily cobbled together at Maastricht ultimately suited all of the major players, the Community institutions,
the social partners and the 11/14, on the limited number of occasions when
they sought to take advantage of the Agreement as a fast track,89 and the
UK which, until a change of Government in May 1997, was quite content
with its splendid isolation. The general view was that the Court would be
unlikely to tamper with a constitutional arrangement negotiated between
the Member States and the greatest danger would be a hypothetical one
arising from a potential conflict of interpretation between directives
adopted via the two different routes.90 The outcome was what Falkner has
aptly described as a kind of pragmatic normalisation91 of these novel
arrangements. The fact that the Agreement violated the principle of nondiscrimination, by creating two categories of Union citizens and an unfair
competitive advantage for the UK within a notional Single Market, was an
83

Ehlermann, n 25 above at 36.

Case 22/70, Commission v Council ERTA [1971] ECR 263.
85
Ibid para 53.
86
COM(93) 600, paras 7 and 8.
87
Ibid para 8.
88
Including Austria, Finland and Sweden from 1 Jan 1995.
89
See M Rhodes, The Social Dimension after Maastricht: Setting a New Agenda for the
Labour Market (1993) 9 International Journal of Comparative Labour Law and Industrial
Relations 297 at 324.
90
See B Fitzpatrick, Community Social Law after Maastricht (1992) 21 Industrial Law
Journal 199 at 203.
91
Falkner, n 81 above at 3.
84

Eleven March Ahead 227

inconvenience, but a price worth paying for many social integrationists,
even if one consequence, as Curtin rightly warned, has been the consolidation of a differentiated approach to integration in the Amsterdam and Nice
Treaties. As Brinkmann wryly observes, the result was a kind of unconstitutional constitutional law.92 Indeed the Courts capacity for legal sidestepping in line with the emerging pragmatic consensus was amply
demonstrated when, in UEAPME,93 the first case concerning the legality of
a directive adopted under the Agreement,94 the Court of First Instance
(CFI)95 held that such a directive was a legislative measure for the purposes
of Community law without any need to directly address the legal status of
the Agreement.96 In the absence of any plea on this point by the parties, the
CFI merely chose to note that the Agreement was annexed to the Protocol
that, in turn, was annexed to the EC Treaty.97 It followed that there was an
umbilical link between the Agreement and the Treaty.
In the remaining sections of this chapter several aspects of the Maastricht
settlement will be addressed. The first element consists of an analysis of the
broad Treaty framework within which both the retained social provisions
in the EC Treaty and the clauses in the annexed Agreement on Social Policy
would now operate. In the second part consideration will be given to the
particular implications for social policy arising from the principle of subsidiarity referred to in Article 3b [now 5] EC. The third section contains an
analysis of the substantive social provisions contained in Articles 1, 2 and
6 of the Agreement [now 136, 137 and 141 EC]. In the fourth part there
will be an explanation of the innovative procedures in Articles 3 and 4 of
the Agreement [now 138 and 139 EC] concerning the social partners, with
a focus on the issue of the representativeness of the parties and the democratic legitimacy of the process as a whole. Finally, there will be a qualitative assessment of three cross-sectoral agreements negotiated by the social
partners and now converted into directives. In chapter 7 there will be an
analysis of wider social policy developments during the period from Maastricht to Amsterdam arising, in particular, from Commission white papers
and European Council initiatives published in the context of rapidly deteriorating socio-economic conditions in the early to mid-1990s.
92

See Brinkmann, n 47 above at 240.

Case T135/96, Union Europenne de lArtisant et des Petits et Moyennes Entreprises
(UEAPME) v Council [1998] ECR II2335.
94
Dir 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP
and the ETUC, OJ 1996, L145/4.
95
From 1993 the CFI has been granted jurisdiction over all direct actions brought by natural
and legal persons under Art 230 [ex 173] EC. See OJ 1993, L144/21 and OJ 1994, L66/29.
Discussed by A Arnull, The European Union and its Court of Justice (OUP, Oxford, 1999)
pp 1418.
96
Case T135/96, UEAPME v Council [1998] ECR II2335, para 67.
97
Para 2.
93

228

The Treaty on European Union

IV THE TREATY FRAMEWORK

The preamble of the Treaty on European Union (TEU) indicates that any
advances in economic integration are to be accompanied by parallel
progress in other fields.98 This commitment is reinforced by the first objective contained in Article B [now 2] TEU calling for the promotion of economic and social progress which is balanced and sustainable. Such progress
is to be achieved through the creation of an area without internal frontiers,
the strengthening of economic and social cohesion and the establishment
of economic and monetary union. While this language serves to carry
forward the rhetoric of equality between the economic and social dimensions of European integration, it is the economic imperative that is
reinforced by the reference to balanced and sustainable progress.99 The
parameters for such progress would now be set by the apparently strict
deflationary convergence criteria required by EMU100 and, in the longer
term, by the interest rate policy of a European Central Bank established in
order to maintain price stability.101
An additional objective central to the TEU involves the protection of the
rights and interests of nationals of the Member States through the introduction of a citizenship of the Union, although the detailed provisions102
amount only to a modest extension of the existing rules on free movement
of persons.103 Moreover, the human rights clause inserted into Article F
[now 6] TEU104 merely restates the jurisprudential reasoning of the Court
98

7th recital of the preamble of the TEU.

See Shaw, n 54 above at 298.
See Protocol No 6 on the convergence criteria referred to in Article 109j(1) [now 121(1)]
EC. The criteria are:
99

100

Price stabilityinflation must not exceed 1.5% above the average of the three best
performing Member States;
Budget deficitsnot exceeding 3% of GDP and a public debt to GDP ratio of less than 60%
of GDP;
Exchange ratestaying within the normal fluctuation margins of the ERM (currently 2.5%)
for at least two years;
Interest ratesmust not exceed 2% above the three best performing Member States over
the previous year.
101

Art 105 [ex 105] EC.

Art 88e [now 1722] EC.
By virtue of Art 8 [now 17] EC, Union citizenship is extended to every person holding
the nationality of a Member State. Union citizenship complements but does not replace
national citizenship. Art 8a [now 18] EC grants the right to move and reside freely within
the territory of the Member States to all Union citizens. Other provisions are concerned with
the right to stand and vote in municipal and European elections, to diplomatic and consular
protection in third-countries and to petition the European Parliament (Arts 8b8d [now 1921]
EC). For discussion, see C Closa, The Concept of Citizenship in the Treaty on European
Union (1992) 29 Common Market Law Review 1137; D OKeeffe, Union Citizenship in
OKeeffe and Twomey, n 21 above, 87107; J Shaw, The Many Pasts and Futures of
Citizenship of the European Union (1997) 60 Modern Law Review 554.
104
Art 6(1) declares that the Union is founded on the principles of liberty, democracy,
102
103

The Treaty Framework

229

in cases where, for example, the European Convention on Human Rights

has been taken into account as a means of interpreting Community law
within the framework of the structure and objectives of the Community.105
Strictly speaking this did not amount to a codification of this jurisprudence
because the clause was explicitly excluded from the jurisdiction of the
Court.106 Noteworthy also is the absence of any direct reference in the TEU
either to the European Social Charter or to international standards laid
down by the United Nations and the International Labour Organisation.
The Maastricht construct of the TEU was to be a political union without
any pretension towards social citizenship or a foundation of human
rights.107
Title II of the TEU amends the EEC, now EC, Treaty. In particular Article
2 EC, setting out the task of the Community, is expanded to include, inter
alia, a commitment to:
. . . a high level of employment and social protection, the raising of the standard of
living and quality of life, and economic and social cohesion and solidarity among
Member States.

Among the activities of the Community set out in Article 3 EC can be found
a policy in the social sphere comprising a European Social Fund and the
strengthening of economic and social cohesion. The specific goal of securing a high level of employment is further reinforced by a refinement of the
social provisions in chapters 2 and 3 of the new Title VIII [now XI] EC on
Social Policy, Education, Vocational Training and Youth. Articles 123125
[now 146148] EC, concerning the European Social Fund, shift the focus
of the Fund from facilitating the free movement of workers to improving
employment opportunities for workers in the internal market.108 The aim
is to help workers to adapt to industrial changes and changes in production systems, in particular through vocational training and retraining.
Articles 126127 [now 149150] EC contain strengthened provisions on
education and vocational training intended to promote co-operation
respect for human rights and fundamental freedoms, and the rule of law, principles which are
common to the Member States. Art 6(2) resolves that the Union shall respect fundamental
rights, as guaranteed by the European Convention for the Protection of Human Rights and
Fundamental Freedoms . . . and as they result from the constitutional traditions common to
the Member States, as general principles of Community law.
105
For example, Case 11/70, Internationale Handelsgesellschaft v Einfuhr-und Vorratsstelle
Getreide [1970] ECR 1125, para 4; Case 44/79, Hauer v Land Rheinland-Pfalz [1979] ECR
3727, paras 1416.
106
See Art L TEUbut see the Courts limited jurisdiction with regard to the action of the
institutions under all three pillars now contained in Art 46 TEU.
107
See Hervey, European Social Law and Policy, n 10 above, p 27; P Twomey, The
European Union: Three Pillars without a Human Rights Foundation in OKeeffe and Twomey,
n 21 above, 12132; M Rodrguez-Piero and E Casas, In Search of a European Social
Constitution in Davies et al, n 1 above, 2348 at 268.
108
Art 123 [now 146] EC. For discussion, see J Kenner, Economic and Social Cohesion
The Rocky Road Ahead [1994] Legal Issues of European Integration 1 at 2030.

230

The Treaty on European Union

between Member States in the development of quality education and

implement a Community vocational training policy aimed at facilitating the
integration and reintegration of workers generally and young people in particular into the labour market.109 Hence, even without a fully-fledged Social
Chapter to replace Articles 117122 EC, the balance of the main Treaty
provisions on social policy in the revised Title VIII marked a shift in the
policy emphasis from employment protection to employment creation and
retention.
One recurring feature of both the revised social policy provisions in Articles 123127 [now 146150] EC and the annexed Agreement on Social
Policy is the supplementary role accorded to the Community vis--vis the
Member States. For example, in respect of both education and vocational
training, the Communitys task is to make a contribution by supporting and
supplementing the action of the Member States who retain overall responsibility for the content and organisation of teaching and training.110 Moreover, a subsequent European Council proclamation has explicitly ruled out
harmonisation in these areas.111 Under Article 2(1) of the Agreement [now
137(1) EC] the Communitys role is to support and complement the activities of the Member States with a view to achieving the objectives set out
in the Agreement.112 Therefore, the principle of subsidiarity, which has been
both an implicit and informal governing rule in the area of Community
social policy, is fully reflected in these provisions, but now, with the incorporation of Article 3b [now 5] EC into the Treaty, it was being made
explicit, reinforcing the presumption in favour of action at the national
level. But, did the formalisation of the principle of subsidiarity make any
difference in the social policy context?

V THE PRINCIPLE OF SUBSIDIARITYPLUS A CHANGE, PLUS

CEST LA MME CHOSE?

Subsidiarity is a natural by-product of the expansion of the Communitys

competences and the establishment of the wider Union post-Maastricht. It
marks a development of the idea of allocative efficiency first mooted in the
1970s by Tindemans.113 In essence, subsidiarity provides a guiding principle
109
See generally, J Shaw, From the Margins to the Centre: Education and Training Law
and Policy in P Craig and G de Brca (eds) The Evolution of EU Law (OUP, Oxford, 1999)
55595; and M Freedland, Vocational Training in EC Law and PolicyEducation, Employment or Welfare? (1996) 25 Industrial Law Journal 110.
110
Arts 126(1) and 127(1) [now 149(1) and 150(1)] EC.
111
Presidency Conclusions of the Edinburgh European Council, 11/12 Dec 1992, Part I,
point 4, note 4. (Bulletin of the European Communities 12/92, pp 256).
112
Art 1 of the Agreement [now 136 EC], discussed below.
113
COM(75) 481. For comment, see D Cass, The Word that Saves Maastricht? The
Principle of Subsidiarity and the Division of Powers within the European Community (1992)
29 Common Market Law Review 1107 at 1112116.

The Principle of Subsidiarity 231

for determining the distribution of powers between the Community and the
Member States. On the one hand, it is a centralising concept permitting action
at Community level, but only where that is the most efficient method of fulfilling the Communitys objectives. On the other hand, it creates a presumption in favour of decentralisation by placing responsibility for achieving the
Communitys objectives at the national level under Article 3b [now 5] EC or,
in a broader conception derived from the common provisions of the TEU, at
the point closest to the citizen.114 Therefore, as the Communitys reach
expands, subsidiarity operates as a process for managing interdependence
between sub-national, national and supranational actors.115 Subsidiarity can
be presented positively as a tool for enhancing integration within an overall
process of federalisation.116 The prime motivation for the EC Treaty amendment, however, was negative, amounting to a desire by the Member States to
protect their national policy prerogatives against what they saw as unnecessary and undesirable Community interference.117
Article 3b [now 5] EC sandwiches the principle of subsidiarity between
two established Community concepts: attribution of powers118 and proportionality.119 Paragraph 2 defines subsidiarity as follows:
In areas which do not fall within its exclusive competence, the Community shall
take action, in accordance with the principle of subsidiarity, only if and in so far as
the objectives of the proposed action cannot be sufficiently achieved by the Member
States and can therefore, by reason of the scale and effects of the proposed action,
be better achieved by the Community.

Subsidiarity applies to all facets of Community social policy because this is

an area where the Community has concurrent competence with the Member
States in a limited number of fields while, in a majority of fields, such as
114
Art A [now 1] TEU, which refers to the central goal of a Europe in which decisions are
taken as openly as possible and as closely as possible to the citizen. For discussion, see G de
Brca, Reappraising Subsidiaritys Significance after Amsterdam, Harvard Jean Monnet
Working Paper 7/99, pp 1012; G Berman, Taking Subsidiarity Seriously (1994) 94 Columbia Law Review 332 at 3402. Berman explains the distinction, in the US context, between
executive and democratic federalism. In the EU context, de Brca notes at 12, Art A [now 1]
TEU indicates a preference for democratic federalism, protecting citizens rights, while Art 3b
[now 5] EC emphasises the prerogatives of the Member States.
115
See R Dehousse, Does Subsidiarity Really Matter? EUI Working Paper LAW No 92/32
(EUI, Florence, 1993) p 29.
116
See the address by J Delors to the College of Europe in Bruges on 17 Oct 1989.
Discussed by Cass, n 113 above at 1120121.
117
See de Brca, n 114 above, p 6. See also, G Lyon-Caen, n 1 above at 56, who describes
Art 3b [now 5] EC as an outburst of resentment against the Court and the Commission.
118
Para 1: The Community shall act within the limits of the powers conferred upon it by
this Treaty and of the objectives assigned to it therein. For an analysis of the scope of this
provision, see A Dashwood, The Limits of European Community Powers (1996) 21
European Law Review 113.
119
Para 3: Any action by the Community shall not go beyond what is necessary to achieve
the objectives of this Treaty. For discussion, see N Emiliou, The Principle of Proportionality
in European Law (Kluwer, London, 1996); G de Brca, The Principle of Proportionality and
its Application in EC Law (1993) 13 Yearbook of European Law 105.

232

The Treaty on European Union

the organisation of education, health and social protection systems, the

Member States have exclusive competence. By contrast, the Communitys
exclusive competence arises where the EC Treaty clearly and precisely places
the sole responsibility for action on the Community and, consequently,
Member States lose the right to act unilaterally.120 Subsidiarity applies,
therefore, to all areas of the EC Treaty except those centred around the four
fundamental freedoms and certain common policies essential to, or a corollary of, the establishment of the internal market.121
At the core of the subsidiarity clause is a requirement for the Community
to demonstrate that there is a legitimate need for each new initiative.122
In the Presidency Conclusions issued after the Edinburgh European
Council of December 1992 this requirement was explained in the following
terms:123
For Community action to be justified the Council must be satisfied that both aspects
of the subsidiarity criterion are met: the objectives of the proposed action cannot
be sufficiently achieved by the Member States action and can therefore be better
achieved by the Community.

In order to satisfy this rule specific guidelines must be used including an

examination of whether the issue in question has transnational aspects
which cannot be satisfactorily regulated by action by Member States;
and/or, where action by the Member States alone or lack of Community
action would conflict with the requirements of the Treaty. The Council must
be satisfied that action at Community level would produce clear benefits by
reason of its scale and effects compared with action at the level of the
Member States.124 The European Council concluded that harmonisation
should only take place where it is necessary to achieve the Communitys
objectives and the reasons for taking action must be substantiated by both
qualitative and, where possible, quantitative indicators.125
Following on from the Edinburgh European Council, the Commission,
in an influential report issued in November 1993,126 presented subsidiarity
120

Commission Communication to the Council and the European Parliament, SEC(92)

1990.
121
Ibid. The Commission lists the following areas: the removal of barriers to the free movement of goods, persons, services and capital; the common commercial policy; the general rules
on competition; the common organisation of the agricultural markets; the conservation of
fishing resources; the essential elements of transport policy.
122
Commission Report to the European Council on the Adaptation of Community Legislation to the Subsidiarity Principle, COM(93) 545.
123
Presidency Conclusions. Part II, para (i). Emphasis added. For discussion, see the following editorial comment: Subsidiarity: Backing the Right Horse? (1993) 30 Common
Market Law Review 241; cf A Toth, The Principle of Subsidiarity in the Maastricht Treaty
(1992) 29 Common Market Law Review 1079.
124
Ibid Part II, para (ii)
125
Ibid Part II, paras (iii) and (v).
126
COM(93) 545.

The Principle of Subsidiarity 233

as a kind of rule of reason designed to regulate the exercise of powers and
justify their use in a particular case.127 In the age of subsidiarity, Community action is not the rule but the exception. Although the primary aim is
to decentralise, a secondary function is to act as an impulse for integration
where effectiveness demands that a problem be solved in a common framework.128 In each case where action is contemplated three questions must be
answered:129
What is the Community dimension of the problem?
What is the most effective solution, given the means available to the Community
and to Member States?
What is the real added value of common action compared with isolated action
by the Member States?

Subsidiarity would be developed as a dynamic concept to be applied in

the light of Treaty objectives, allowing Community activity to be expanded
so long as added value can be demonstrated or, conversely, restricted or
discontinued if it is no longer necessary.130 Although the UK trumpeted the
inclusion of subsidiarity at Maastricht as a great triumph, a memorandum
submitted to an influential House of Commons Committee warned that it
would in practice prove of little use as a means of checking intrusive social
policy measures.131 This point had been reinforced at Edinburgh where it
was determined that directives based on Article 118a EEC/EC would not
warrant re-examination in the light of subsidiarity but rather the Communitys priority was to supplement them by implementing all the provisions of the Charter on the Fundamental Social Rights of Workers.132 This
somewhat confusing statement suggests a direct link between the Charter
and Article 118a EEC/EC notwithstanding the distinction between the two
arising from the Protocol. When, in November 1993, the Council sidestepped the UKs veto and adopted the Working Time Directive133 under
Article 118a EEC/EC, the UK, believing that its opt-out was being undermined, instantaneously mounted a legal challenge.
In the Working Time134 case the UK presented a wide-ranging submission
seeking to question not only the legal base of the Directive but also both
the necessity for the Community to act and the intensity of the action. While

127

Ibid point 1, para 2.

Ibid.
129
Ibid point 1, para 1.
130
Edinburgh European Council Presidency Conclusions, Dec 1992. Part I, point 4.
131
Memorandum submitted by M Howe to the House of Commons Foreign Affairs
Committee, 1992, para 1.4. See D Pollard and M Ross, European Community Law: Text and
Materials (Butterworths, London, 1994) pp 5764.
132
Presidency Conclusions, Dec 1992. Annex 2, Part A. See Watson, n 47 above at 497;
Shaw in OKeeffe and Twomey, n 21 above at 300.
133
Dir 93/104/EC, OJ 1993, L307/18.
134
Case C84/94, UK v Council [1996] ECR I5755.
128

234 The Treaty on European Union

the UK did not expressly invoke disregard of subsidiarity as one of its
grounds for seeking annulment of the Directive, it regularly made reference
to the principle during the course of the proceedings.135 AG Lger lightly
scolded the UK for equating subsidiarity with proportionality.136 In his
view the principles operate in turn, at two different levels of Community
action.137 Subsidiarity determines whether Community action is to be taken,
whereas proportionality defines its scope. Therefore subsidiarity comes into
play before the Community takes action while proportionality comes into
play after such action has been taken. It follows that the question of competence operates at a different level from that of its exercise.138 The principle that the Community can act in the area cannot be called into question
because of the objective of harmonisation in Article 117 [now 136] EC. It
would be illusory to expect the Member States alone to achieve the harmonisation envisaged, since it necessarily involves supranational action.139
The Court was equally dismissive in its judgment finding that:140
. . . it is the responsibility of the Council, under Article 118a, to adopt minimum
requirements so as to contribute, through harmonisation, to achieving the objective
of raising the level of health and safety protection of workers which . . . is primarily the responsibility of the Member States. Once the Council has found it necessary to improve the existing level of protection as regards the health and safety of
workers and to harmonise the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum
requirements necessarily presupposes Community-wide action, which otherwise
. . . leaves the enactment of the detailed implementing provisions largely to the
Member States.

From the perspective of the Court, subsidiarity comes into play as a guiding
principle for the Community legislature in the exercise of its power and not
as a principle for determining whether or not that power exists,141 which is a
question of the attribution of powers,142 nor for deciding on the intensity of
the action, which is governed by the principle of proportionality.143 This
approach was subsequently supported by the Member States who, by virtue
of the Treaty of Amsterdam, have annexed Protocol No 8 to the EC Treaty,
where it is stated that the principle of subsidiarity does not call into question
the powers conferred on the European Community by the Treaty, as inter135

Opinion of AG Lger, para 124.

Ibid.
137
Ibid para 126.
138
Ibid. For a critique, see A Dashwood, The Working Time Judgment in a Wider Perspective in C Barnard, A Dashwood and B Hepple, The ECJs Working Time Judgment: The
Social Market Vindicated (CELS Occasional Paper No 2, Cambridge, 1997) 2331 at 301.
139
Judgment, para 129.
140
Ibid para 47.
141
See de Brca, Harvard Jean Monnet Working Paper 7/99, n 114 above, p 31.
142
Art 3b [now 5] EC, first paragraph.
143
Ibid third paragraph.
136

The Agreement on Social Policy 235

preted by the Court of Justice.144 Thus the Court can ultimately determine
the matter in the context of the Treaty powers in question.145 In the area of
social policy, where the terminology of Article 118a EEC has been subsumed
within, first, the Agreement on Social Policy, and now Article 137 EC, the
principle of subsidiarity is directed at the Communitys legislative institutions, which have considerable latitude when it comes to the exercise of the
powers granted to them under the Treaty.
In practice, subsidiarity has been reduced to its core political dimension
and it is here that it has made a difference. Subsidiarity has reinforced the
powers of the Member States at the expense of the Community by creating
an assumption that, in areas of shared competence, the appropriate level of
action is national. The role of the Community is complementary and supportive which may, in certain circumstances, require binding legislation
where the Treaty powers so allow and the European Councils guidelines on
justification are complied with, but equally, in accordance with the principle
of proportionality, if the objective can be achieved by other less intensive
means, such as programmatic action or soft law, then that is to be preferred.146 Thus, when the Commission issued its White Paper on Social Policy
in July 1994,147 at a time when no binding legislation had been adopted under
the Agreement on Social Policy, it was decided that legislation would only be
proposed when strictly necessary to achieve the objectives of the Union and
when the issues addressed cannot be solved at Member State level.148 Paradoxically, just as the Agreement was entering into force, as an expression of
the will of the 11 to implement the Social Charter through an expansion
of legal competences and the broad exercise of qualified majority voting
(QMV), it was being simultaneously neutered by the operation of the principle of subsidiarity.149 It is with this context in mind that we shall now examine
the substantive provisions of the Agreement.

VI THE AGREEMENT ON SOCIAL POLICYA WAY OUT OF

THE IMPASSE?

Between November 1993, when the Protocol on Social Policy entered into
force, and May 1999, when it was repealed,150 the Community conducted
144

Para 3 of Protocol No 8.
See de Brca, Harvard Jean Monnet Working Paper 7/99, n 114 above, p 31.
See Edinburgh European Council Presidency Conclusions, Dec 1992. Part II, para (v).
147
European Social Policy: A Way Forward for the Union, COM(94) 333.
148
Ibid. Introduction, para 22.
149
See generally, J Kenner, The Paradox of the Social Dimension in P Lynch, N Neuwahl
and W Rees (eds) Reforming the European Union: From Maastricht to Amsterdam (Longman,
Harlow, 2000) pp 10829.
150
The Protocol was repealed when the Treaty of Amsterdam entered into legal force on 1
May 1999.
145
146

236 The Treaty on European Union

a unique experiment. Two competing typologies of Social Europe coexisted. For the Community of 12/15 the parameters were set by Articles
117122 EC marking a continuum of the social dimension of the internal
market. QMV was available only through the channel of Article 118a
EEC/EC, while the social partners were limited to the peripheral role
accorded to them under Article 118b EEC/EC. For the transitional Community of 11/14, however, a new challenge was presented by the separate
acquis of the Agreement on Social Policy signifying an apparently decisive
shift from an integrated market to a social justice rationale for the development of the law in this area.151 In the view of the Commission, the Agreement represented an opportunity for the social dimension to progress at the
same pace as the economic aspect of the construction of Europe.152 Indeed
the immediate practical purpose of the Agreement was to implement the
Social Charter on the basis of the new acquis. To secure this objective, the
Community of 11/14 were now able to utilise a wide-range of legal bases
for QMV. Meanwhile the social partners, who had previously been passive
bystanders, were now active players in the legislative process, able to reach
agreements capable of being converted into binding Community legislation. Thus, having invented the Protocol as a device for ending the impasse
over social policy, the 11/14 and, more specifically, the Commission and the
social partners, were now presented with a series of strategic political and
legal questions. To what extent was the new acquis capable of securing the
implementation of the Charter? How far and how fast should they move
towards a two-speed Social Europe? How would the new procedures
involving the social partners operate within the Communitys legislative
system? With these questions in mind, the substantive and procedural elements of the Agreement will now be analysed.
During the period of its operation, the Agreement was brought into play
without prejudice to the main Treaty provisions and, therefore, as a supplemental procedure subject to the specific framework provided by the
Treaty, including the overarching ambition in Article 2 EC of promoting a
high level of employment and social protection.153 Once triggered the Agreement performed three specific tasks.154 First, it redefined and extended the
shared social policy objectives of the Community and the Member States,
in the context of the Community of 11/14. Second, it set out specific rules
for the adoption of laws in this context. Third, it developed the role of the
social partners in the consultative and legislative process.
Article 1 of the Agreement [now replaced by Article 136 EC] laid down
the revised social policy objectives in the following context:155
151
152
153
154
155

See Fitzpatrick, n 90 above at 211.

COM(93) 600. Introduction, para 3.
Ibid. Introduction, para 5.
Ibid. Introduction, para 6.
Emphasis added.

The Agreement on Social Policy 237

The Community and the Member States shall have as their objectives the promotion of employment, improved living and working conditions, proper social protection, dialogue between management and labour, the development of human
resources with a view to lasting high employment and the combating of exclusion.
To this end the Community and the Member States shall implement measures which
take account of the diverse forms of national practices, in particular in the field
of contractual relations, and the need to maintain the competitiveness of the
Community economy.

Whereas Article 117 EEC was presented in the form of a contract between
the Member States to pursue their national social policies in a coordinated
fashion, Article 1 of the Agreement placed responsibility for the development
and implementation of policies at both national and Community levels. This
approach did not, however, signify a shift of responsibility to the Community.156 Rather it represented an application of the horizontal provisions in
points 2730 of the Social Charter, where the primary responsibility for
implementation lies with the Member States, while the Commissions role is
to submit legislative proposals and to monitor progress through annual
reporting, a function reinforced by Article 7 [now 143 EC].157 Article 2(1)
[now 137(1) EC] reasserted the leading role of the Member States in social
policy both under the Treaty and Agreement, where it was stated that, with
a view to achieving the objectives listed in the first sentence of Article 1, the
Community shall support and complement the activities of the Member
States. This clause was cited by the Edinburgh European Council as a
specific application of the idea of subsidiarity.158
The second sentence of Article 1 was more nuanced. When compared
with the text of Article 117 EEC, it is immediately apparent that the
Community would no longer favour the harmonisation of social systems
in a formal sense. Indeed, by emphasising diversity, the signatories of the
Agreement were seeking to assert the individuality of their national laws
and practices and, by implication, a preference for less formalised, more
programmatic Community intervention and, more specifically under Article
2(2) [now 137(2) EC], in those cases where directives were the appropriate means of complementary Community activity, these should provide for
minimum requirements for gradual implementation, having regard to the
conditions and technical rules obtaining in each of the Member States.159
Furthermore, the primary role of the Commission under Article 5 [now 140
EC] was, first, to encourage co-operation between the Member States and,
second, to facilitate their action in all social policy fields under the Agreement. This was broadly consistent with the function of Article 118 EEC but
156

See Brinkmann, n 47 above at 244.

The Commission decided to combine the annual reports on the Charter and the
Protocol.
158
Presidency Conclusions, Dec 1992. Part 1, point 3, note 3.
159
Emphasis added.
157

238 The Treaty on European Union

with the overall objective of harmonisation removed. Hence the variation
from harmonisation to minimum standards, first tested by the addition of
Article 118a EEC, was now being extended to the whole schema of the
Agreement. Improvements beyond the Community minimum would be left
to the individual Member States under Article 2(5) [now 137(5) EC],
extending the approach introduced in Article 118a(3) EEC. The experience
of Article 118a EEC/EC in practice demonstrates that this approach leads
to a reductionist interpretation of social standards rather than upward
harmonisation.160
While the reference to diversity, particularly in the field of contractual
relations, was neutral in policy terms, the inclusion of a competitiveness
test served to provide an economic anchor to restrict the apparently
freestanding social provisions that followed in Articles 2 and 6 [now 137
and 141 EC]. As Falkner has noted, any social directive may to some
extent create additional distortions of competition.161 Measures designed to
improve living and working conditions may, directly or indirectly, increase
labour costs that may, without productivity savings, render the European
economy less competitive and, potentially, undermine the EMU project.
Moreover, the test is subjective and capable of being used as a political
weapon by opponents of transnational social regulation.162 Therefore the
appearance of an autonomous social policy under the Agreement was illusory, as Majone explained:163
But even if they no longer have to be justified in functional terms, measures proposed by the Commission in the social field must be compatible with the economic
constitution of the Community, that is, with the principles of a liberal economic
order. This requirement creates an ideological climate quite unlike that which made
possible the development of the welfare state in the Member States.

It followed that any progress would have to be linked to the Communitys

overall economic objectives and, as Shaw noted, would be hinged on a
coincidence of political will and normative competence, both of which are
relatively weak in the Social Policy field.164 The scope of that normative
competence under the Agreement was to be found in Articles 2 and 6.
Article 2 [now 137 EC] provided a framework within which the objectives in Article 1 could be achieved. In a similar fashion to Article 118 EEC,
this had the effect of circumscribing the social policy objectives set out
therein.165 The legislative system in Article 2 was divided into three parts.166
160
For an excellent analysis, see S Simitis and A Lyon-Caen, Community Labour Law: A
Critical Introduction to its History in Davies et al, n 1 above, 122 at 1819.
161
Falkner, n 81 above at 11.
162
See Weiss, n 49 above at 9.
163
G Majone, The European Community Between Social Policy and Social Regulation
(1993) 31 Journal of Common Market Studies 153 at 156.
164
Shaw in OKeeffe and Twomey, n 54 above at 299.
165
See Szyszczak, n 70 above at 316.
166
See Fitzpatrick, n 90 above at 201.

The Agreement on Social Policy 239

The first part, Article 2(1), enumerated specific fields where the Community shall support and complement the activities of the Member States
allowing, under Article 2(2), for directives to be adopted by the Council by
QMV.167 The fields covered by Article 2(1) were as follows:
improvement, in particular, of the working environment to protect workers
health and safety;
working conditions;
the information and consultation of workers;
equality between men and women with regard to labour market opportunities
and treatment at work;
the integration of persons excluded from the labour market . . .

Following the rubric laid down in Article 118a EEC, these directives had
to be based on minimum requirements for gradual implementation, having
regard to the conditions and technical rules in each of the Member States.
Such directives needed to avoid imposing administrative, financial and legal
constraints in a way which would hold back the creation and development
of small and medium-sized undertakings.168
The second part, Article 2(3), listed other residual areas where Community action was possible, not specifically in the form of directives, but only
on a unanimous vote in the Council.169 These areas were:
social security and social protection of workers;
protection of workers where their employment contract is terminated;
representation and collective defence of the interests of workers and employers,
including co-determination, subject to paragraph 6;
conditions of employment of third-country nationals legally residing in Community territory;
financial contributions for promotion of employment and job-creation, without
prejudice to the provisions relating to the Social Fund.

The final part, Article 2(6), was negative, excluding several areas from the
content of any measures adopted under paragraphs (1) and (3). The areas
in question were pay, the right of association, the right to strike or the right
to impose lock-outs.
Article 2(4) and (5) dealt with implementation issues. Article 2(4) permitted Member States to entrust management and labour, at their joint
request, with the implementation of directives adopted under paragraphs (2)
and (3). Responsibility for guaranteeing the results imposed by those directives remained with the Member States. Article 2(4) was drafted on the basis
of the accord signed by the social partners in advance of the Treaty negotiations.170 It was drawn from point 27 of the Social Charter, itself inspired by
167

Art 2(2). The co-operation procedure in Art 189c [now 252] EC applied.
Art 2(2).
Subject to consultation with the European Parliament and the Economic and Social
Committee.
170
For discussion in the context of Art 2(4), see S Sciarra, Collective Agreements in the
Hierarchy of European Community Sources in Davies et al, n 1 above, 189212 at 1978;
168
169

240 The Treaty on European Union

the case law of the Court.171 Article 2(5) incorporated the clause contained
in Article 118a(3) EEC whereby, notwithstanding the content of any measures adopted, a Member State would not be prevented from maintaining
or introducing more stringent protective measures compatible with the
Treaty. By implication, this incorporated the principle of non-retrogression
of social laws outlined in the preamble of the Social Charter.172
In the aftermath of the Maastricht settlement there was considerable
uncertainty about, first, the relationship between the legal bases in Article
2 and the internal market provisions in Article 100a [now 95] EC, second,
the implications of the clause in Article 2(2) concerning small and mediumsized enterprises (SMEs) and third, the interplay between paragraphs (1) (3)
and (6).
On the first point, many queried whether it was possible for Article 2(1)
and (3) to trump the derogation in Article 100a(2) [now 95(2)] EC concerning the rights and interests of employed persons? Weiss was confident
that these new demarcations overrode the blockade established by that
derogation.173 Szyszczak contended that the exemption would be narrowed
down or might become an embattled chess piece in future litigation.174 In
the event the matter was effectively settled by the Working Time case175
where the Court held that the existence of other provisions in the Treaty
did not have the effect of restricting the scope of Article 118a EEC/EC.176
Article 2 directly replaced and extended Article 118a EEC/EC in the context
of the acquis applying to the 11/14. It followed that, where the Agreement
came into play, Article 2 had to be used providing the principal aim of the
measure in question fell within the enumerated legal bases taking into
account the objectives in Article 1.177
Moreover, with regard to the scope of the SME clause,178 the Court, when
interpreting the provisions in the Working Time Directive, has taken a

B Bercusson, Social Policy at the Crossroads: European Labour Law after Maastricht
in Dehousse, n 2 above, 14986 at 16871. The practical issues are summarised by the
Commission at: COM(93) 600, paras 438.
171
Case 143/83, Commission v Denmark [1985] ECR 427. At 4345 the Court held that
Member States may leave the implementation of the principle of equal pay in the first instance
to representatives of management and labour. Member States remain ultimately bound to
guarantee the principle of equality if the agreement is inadequate. For discussion, see ch 2.
172
16th recital.
173
Weiss, n 49 above at 7.
174
Szyszczak, n 70 above at 31617.
175
Case C84/94, UK v Council (Working Time Directive) [1996] ECR I5755.
176
Ibid paras 12 and 13.
177
Ibid para 21.
178
The Commission has attempted to define SMEs in Recommendation 96/280/EC, OJ
1996, L107/4. An SME is an independent enterprise with fewer than 250 employees and
either an annual turnover not exceeding ECU 40 million or an annual balance sheet not exceeding ECU 27 million (Art 1(1)). An independent enterprise is normally one that is not owned
as to 25% or more of the capital or the voting rights by one enterprise, or jointly by several

The Agreement on Social Policy 241

narrow view of the identical provision in Article 118a EEC/EC.179 The
Court has laid down the following test. When considering the validity of a
directive, the Court only has to satisfy itself that the directive in question
takes account of the SME clause in the framing of its provisions.180 In those
circumstances clauses in national legislation not permitted by the relevant
directive will be struck down even if they are designed to exempt, protect
or promote SMEs.181
Turning to the third point, there seemed to be considerable potential for
overlap between the legal bases requiring either QMV or unanimity. The
role of the Commission would be pivotal in determining not only when to
activate the Agreement but also the choice between paragraphs (1) and (3)
and the drafting of provisions to avoid the exclusion in paragraph (6). This
would also be a factor for the social partners to take into account when
negotiating framework agreements under Article 4 [now 139 EC].
How would proposals concerning information and consultation of
workers under Article 2(1) be distinguished from those regarding representation and collective defence of the interests of workers under Article
2(3)? Weiss suggested that this distinction might lead to incongruous outcomes.182 For example, a measure merely concerning worker involvement,
such as the Vredeling proposal of the 1980s,183 would fall under the QMV
provisions, whereas if the structure of worker representation was altered,
as in the case of the then proposed European Works Council (EWC) Directive,184 this would require unanimity. In the event the revised Commission
proposal,185 and the EWC Directive subsequently adopted,186 were justified
enterprises (Art 1(3)). The ILO, by contrast, defines SMEs as enterprises with up to 50 employees. See ILO, The Promotion of Small and Medium-sized Enterprises, Report IV, International
Labour Conference. 72nd session (ILO, Geneva, 1986) p 4. For discussion see J-M Servais,
Labour Law in Small and Medium-Sized Enterprises: An Ongoing Challenge (1994) 10 International Journal of Comparative Labour Law and Industrial Relations 119.
179
See Case C84/94, UK v Council (Working Time Directive) [1996] ECR I5755; and
Case C173/99, R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I4881, para 60.
180
This approach is also consistent with Declaration No 1 annexed to the Agreement, which
states that the Community does not intend, in laying down minimum requirements for protection of the safety and health of employees, to discriminate in a manner unjustified by the
circumstances against employees in small and medium-sized undertakings. The legal status of
the declarations annexed to the Agreement is uncertain but, unlike the declarations accompanying the Single European Act (SEA) these declarations are contained in the list of protocols to be annexed to EC Treaty in the Final Act of the IGC, suggesting that they may have
the same legal status as the Agreement itself. See Whiteford, n 80 above at 210; and, on the
SEA, see A Toth, The Legal Status of the declarations annexed to the Single European Act
(1986) 23 Common Market Law Review 803.
181
C173/99, R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) [2001] ECR I4881, paras 5760.
182
Weiss, n 49 above at 78.
183
OJ 1980, C297/3 and OJ 1983, C217/3.
184
OJ 1991, C39/10.
185
OJ 1994, C135/8 and C199/10.
186
Dir 94/45/EC on the establishment of a European Works Council or a procedure in

242 The Treaty on European Union

on the basis of information and consultation even though, it could be
argued that both the EWC187 and the Special Negotiating Body188 procedure laid down in the Directive involved representation, if not collective
defence, of workers interests.
Further questions were raised concerning the open-ended term working
conditions in Article 2(1).189 For example, one area under consideration by
the Commission in its 1994 White Paper on Social Policy was a proposal for
a measure to grant workers the right to payment of wages on public holidays
and during illness.190 Would such a measure be primarily concerned with
working conditions under Article 2(1) or social protection under Article
2(3)? From the perspective of the worker these rights would logically fall
under the former heading, but for many Member States the bulk of the
administration and cost of such a scheme would have to be met by their social
welfare budgets. Also, if such a measure had been pursued, would it have
been caught by the exclusion in Article 2(6) concerning pay? Although the
Court has favoured the most democratic method when presented with a
choice of legal bases,191 indicating a potential preference for the co-operation
procedure applicable under Article 2(1), the exclusion in Article 2(6) would
have been more difficult to overcome. The White Paper only referred to legislative action192 rather than a directive in this area and, in the event, the idea
has not been pursued. Significantly, the Parental Leave Directive,193 the first
measure arising from the negotiation of a framework agreement between the
social partners,194 makes no provision for paid leave.
While Articles 117122 EEC/EC have been repeatedly criticised for their
limitations, the original social provisions did not specifically exclude any area
of social policy or labour law from the Communitys horizons. Article 2(6)
[now 137(6) EC], by contrast, placed within a structure designed to implement the Social Charter, specifically denied two of its fundamental freedoms:
fair remuneration and freedom of association. The exclusion of pay created
a further variation in the Communitys geometry as Streeck explained:195
For a while it was believed that the British opt-out would give a strong boost to
Union social policy by setting it free from the threat of a British veto. But this overCommunity-scale undertakings and Community-scale groups of undertakings for the purposes
of informing and consulting employees, OJ 1994, L254/64.
187
Ibid. Art 1(2) and the Annex.
188
Ibid. Art 5.
189
See Weiss, n 49 above at 7.
190
COM(94) 333, ch 3, para 13(iv).
191
For example, see Cases C65/90 and C295/90, European Parliament v Council [1992]
ECR I4593 and I4193.
192
COM(94) 333, ch 3, para 13(iv).
193
Dir 96/34/EC, OJ 1996, L145/4, as amended by Dir 97/75/EC, OJ 1998, L10/24.
194
Signed on 14 Dec 1995 and annexed to the Directive.
195
W Streeck, Neo Voluntarism: A New European Social Policy Regime? (1995) 1
European Law Journal 31 at 46.

The Agreement on Social Policy 243

looked the fact that the exemption is now likely to become a routinely accepted
device to reconcile the desire of some countries to have, for whatever reasons, a
common minimum standard, with the desire of others to remain below that standard. One consequence of this will be further fragmentation of European social
policy, with different subjects being dealt with by differently demarcated
sub-unions under varying decision-rules.

Moreover, while Article 2(3) [now 137(3) EC] appeared to allow for
legislation in the area of collective defence of the interests of workers
and employers with co-determination as an option, any proposal would
be very difficult to frame in the light of this exclusion.196 Not surprisingly
no such proposal has been forthcoming.
One explanation for Article 2(6) has been to regard it as a strict application of subsidiarity.197 But Article 2(6) amounted to what Bercusson
has aptly described as autoexclusion.198 The Community denied itself
competence precisely in the area where collective bargaining is at its most
meaningful, when the parties are contemplating the exercise of their traditional weapons of industrial conflict.199 Moreover, this exemption cannot
be explained away as an attempt to entice the UK to endorse the draft of
the Social Chapter, because the Commissions proposal to include the right
to strike in the list of areas where unanimity is required, was rejected in
the first Luxembourg draft of the Treaty and never reinstated, well in
advance of the British objections.200 Rather, as Ryan explains, Article 2(6)
entrenched a policy of systematic exclusion of pay and trade union rights
from Community employment law.201 While the need to respect diversity
may inhibit the Communitys desire to act in the field of collective labour
law, this argument is less tenable in the area of pay where instrumentation
is well established at international level.202 As Sciarra observes, this lacuna
has meant that no broad interpretation or far-sighted initiative of the
social partners can compensate for the lack of a solid constitutional basis
on which to found the development of collective rights at Community
level.203 The Community is therefore not directly concerned either with the
countervailing power of labour, or the reaction to it by management. For
the Community, social dialogueeven if it is sometimes described as a form
196
See B Ryan, Pay, Trade Union Rights and European Community Law (1997) 13
International Journal of Comparative Labour Law and Industrial Relations 305 at 31113.
197
Lyon-Caen, n 1 above at 61; cf Ryan, ibid at 31920.
198
Bercusson in Dehousse, n 118 above at 185.
199
Ibid.
200
See Ryan, n 196 above at 308. For the Commissions proposals of 4 April 1991, see
Bulletin of the European Communities Supplement 2/91, pp 12631. The Luxembourg draft
was circulated to the Member States on 12 April 1991.
201
Ibid at 324.
202
Ibid at 3204. For example ILO Convention No 26 of 1928 on Minimum Wage-Fixing
Machinery.
203
See S Sciarra, Collective Agreements in the Hierarchy of European Community Sources
in Davies et al, n 1 above 189212 at 1945.

244 The Treaty on European Union

of collective bargaining204has become a substitute for collective labour
law.
Article 6 [now revised as Article 141 EC] appears altogether more
straightforward, but it also bears some intriguing internal contradictions.
Article 6 was originally drafted as a replacement for Article 119 EEC on
equal pay between men and women. Hence, Article 6(1) simply reasserted
the principle of equal pay for equal work while Article 6(2) repeated the
definition of pay in Article 119 EEC verbatim. The principle of equal treatment, derived from the Equal Treatment Directive205 was, somewhat incongruously, not incorporated into Article 6 even though the Social Charter
proclaims that equal treatment for men and women must be assured.206
This cautious approach avoided any conflict between the two acquis,
although this was incidental as even the draft Treaty had left out the equal
value concept.207 As a result there was no obvious purpose to Article 6(1)
and (2).208 There was no legal base for implementing equal pay and yet, in
the context of the minimum standards provisions in Article 2 there was a
legal base for supportive and complementary directives in the field of equality between men and women with regard to labour market opportunities
and equal treatment at work. While the repetition of Article 119(1) and
(2) EEC can be explained by the last minute decision to negotiate the Protocol, the exclusion of equal value and equal treatment from what was now
Article 6 of the Agreement reflected the limited ambition of the draft Social
Chapter, a fact implicitly recognised when, in the Treaty of Amsterdam,
this was the one provision in the Agreement that underwent whole scale
revision before emerging as the new Article 141 EC.
The confusion surrounding Article 6 was compounded by paragraph 3,
which provided that:209
This Article shall not prevent any Member State from maintaining or adopting
measures providing for specific advantages in order to make it easier for women
to pursue a vocational activity or to prevent or compensate for disadvantages in
their professional careers.

Bizarrely, having excluded the principle of equal treatment from Article 6,

the Community of 11 were now seeking to incorporate an exception to that

204
See Bercusson (1994, Industrial Law Journal) n 49 above; A Lo Faro, Regulating Social
Europe: Reality & Myth of Collective Bargaining in the EC Legal Order (Hart, Oxford, 2000)
pp 5460; cf Lord Wedderburn, Consultation and Collective Bargaining in Europe: Success
or Ideology? (1997) 26 Industrial Law Journal 1 at 29.
205
Dir 76/207/EEC, OJ 1976, L39/40.
206
Point 16 of the Social Charter.
207
Luxembourg Presidency Draft Treaty on the Union, 18 June 1991; Dutch Presidency
draft Towards European Union, 24 Sept 1991. See Corbett, n 11 above, pp 3034.
208
See Watson, n 47 above at 499.
209
Emphasis added.

The Agreement on Social Policy 245

principle drawn from Article 2(4) of the Equal Treatment Directive.210 Not
only did this clause create a potential for conflict between the parallel
acquis,211 because no similar provision was located in Article 119 EEC/EC,
but also, it provided a national vehicle for positive action specifically for
women without adding the necessary Community policy rationale for such
a significant and apparently contradictory amendment.212 Watson suggested
that a range of measures might be justifiable to prevent or compensate
women for disadvantages that make it difficult for them to compete on
equal terms with men in the workplace.213 For example, payments to cover
childcare costs; grants for vocational training; increased paid holidays
to care for children; and notional contributions to occupational pension
schemes.214 Curtin, while agreeing that the clause created a permanent foundation for what she described as so-called positive action ,215 argued that
Article 6(3) went much further than the stated position of the Court as judicially elaborated,216 concluding that the tension was likely to be resolved in
favour of the Community norm, the unamended Article 119 EEC/EC.217
In the event, Article 6(3) was not directly adjudicated upon, but the Court,
in its first judgment on Article 2(4) of the Equal Treatment Directive after
the Agreement entered into force,218 interpreted the provision narrowly,
perhaps reflecting a desire to avoid a widening conflict between the related
provisions in advance of a further revision of the treaties. On reflection the
addition of Article 6(3) in isolation was premature and, as we shall see in
chapters 8 and 10, the conflict was eventually resolved by the inclusion of

210
Dir 76/207/EEC, OJ 1976, L 39/40. Art 2(4) states that the Directive shall be without
prejudice to measures to promote equal opportunity for men and women, in particular by
removing existing inequalities which affect womens opportunities in the areas referred to in
Article 1(1). These areas are: access to employment, including promotion; vocational training; working conditions and social security (arising from the implementation of Dir 79/7/EEC,
OJ 1979, L6/24).
211
See Curtins critique, n 26 above at 61.
212
See Whiteford, n 80 above at 2067. Whiteford notes, at 207, that Art 9(2) of the Directive obliges Member States to assess the remaining social relevance of such exceptions to the
principle of equal treatment. This suggests that when such distinctions are no longer appropriate they should be removed, albeit without any temporal limitation. No such test appears
in Art 6(3) of the Agreement.
213
Watson, n 47 above at 499.
214
Ibid.
215
Curtin, n 26 above at 61.
216
See Case 318/86, Commission v France [1988] ECR 3559, para 15, where the Court
held that positive action measures under Art 2(4) of the Equal Treatment Directive must be
of a specific rather than a general nature applying only to those areas where existing inequalities are demonstrated by the Member State in question.
217
Curtin, n 26 above at 61.
218
Case C450/93, Kalanke v Freie Hansestadt Bremen [1995] ECR I3051; cf Case
C409/95, Marschall v Land Nordrhein-Westfalen [1997] ECR I6363. In Marschall the Court
adopted a more liberal interpretation of a positive action clause concerning appointment and
promotion at a time when it was known that a Treaty change was being prepared. See ch 10
for discussion of the Courts jurisprudence in this area and developments post-Marschall.

246 The Treaty on European Union

both the principle of equal treatment and an amended positive action clause
in the new Article 141 EC.

VII ARTICLES 3 AND 4REPRESENTATIVENESS AND

DEMOCRATIC LEGITIMACYTWO SIDES OF THE SAME COIN?

(1) The Social Partners Move to Centre Stage

In the field of employment law there is as much interest in the process, the
more Byzantine the better, as there is in the product, which tends to be
meagre. Articles 3 and 4 of the Agreement [now 138 and 139 EC] exemplify
this point. In their landmark agreement of 31 October 1991,219 the ETUC,
UNICE and CEEP,220 an lite self-selected group of European social partners, fashioned a novel consultative and, potentially, quasi-legislative architecture for Community social policy. The provisions in the Agreement,
reproducing the concordat of the social partners in almost identical terms,221
have taken the tentative conception of relations based on agreement in
Article 118b EEC onto a new plane. What may have first appeared as
perhaps little more than a laboratory experiment within a narrowly confined
legal space, has metamorphosised into a more substantial prototype systematically disrupting the established rhythm of the legislative cycle and the
Communitys fiercely contested institutional balance. Fundamental issues
have been raised about the representativeness of the parties and the democratic legitimacy of introducing a corporatist222 law-making process where
private actors make public policy without any direct form of accountability.223 In a nutshell: who should participate on behalf of whom?224
Under Article 3 of the Agreement [now 138 EC] the Commission have a
general obligation at Community level to promote the consultation of management and labour and to take any relevant measure to facilitate their
dialogue by ensuring balanced support for the parties.225 Therefore the
219

See Social Europe 2/95, p 149.

The European Trades Union Confederation (ETUC) the Union of Industrial and Employers Confederations of Europe (UNICE) and the European Centre of Enterprises and Public
Participation (CEEP).
221
See COM(93) 600. Summary, para 5.
222
See Falkner, n 81 above at 5; and D Obradovic, Accountability of Interest Groups in
the Union Lawmaking Process in Craig and Harlow, n 47 above, 35485. According to
Obradovic, at 355, corporatism involves organisations representing monopolistic functional
interests in a role that combines interest representation and policy implementation through
delegated self-enforcement.
223
Obradovic, ibid at 3556.
224
See L Betten, The Democratic Deficit of Participatory Democracy in Community Social
Policy (1998) 23 European Law Review 20 at 30. Betten asks a slightly narrower question:
who participates on behalf of whom?.
225
Art 3(1) [now 138(1) EC].
220

Articles 3 & 4Representativeness and Democratic Legitimacy 247

Commission have been assigned a dynamic role to act as both champion
and adjudicator for the social partners. Further, within the specific context
of the social policy provisions in the Agreement [now Articles 136145 EC],
Article 3 [now 138 EC] creates an obligatory two-stage consultative process
involving the social partners that may lead to negotiations and, ultimately,
to agreements capable of being converted into binding Community legislation. First, the Commission must consult management and labour at the
pre-legislative stage on the possible direction of Community action in the
social policy field.226 At this stage the Commission retains the power to act
or not to act. Secondly, if the Commission decides to make a proposal, it
is obliged to consult management and labouror the social partners227
on its content and they, in turn, are required to forward an opinion or
recommendation to the Commission.228 It is at this stage that the social partners can activate the negotiation process in Article 4 [now 139 EC] by
informing the Commission229 that they wish to embark upon a process of
dialogue that should they so desire . . . may lead to contractual relations,
including agreements.230 The duration of the negotiations should not
exceed nine months, unless management and labour and the Commission
agree to an extension.231 Once this process begins the conventional legislative process is frozen232 and, in effect, privatised.233 Where the parties decide
to reach an agreement Article 4(2) [now 139(2) EC] comes into play as
follows:
Agreements concluded at Community level shall be implemented in accordance with
the procedures and practices specific to management and labour and the Member
States or, in matters covered by Article 2, at the joint request of the signatory parties,
by a Council decision on a proposal from the Commission.
The Council shall act by qualified majority, except where the agreement in question
contains one or more provisions relating to the areas referred to in Article 2(3) in
which case it shall act unanimously.
226
Art 3(2) [now 138(2) EC]. In their Communication concerning the application of the
Agreement, COM(93) 600, at para 19, the Commission state that the initial consultation
period should not exceed 6 weeks.
227
The two terms are used interchangeably by the Commission and, more generally, in the
academic literature, although the Agreement only refers to management and labour.
228
Art 3(3) [now 138(3) EC]. This phase should also not exceed six weeks. See COM(93)
600, para 19.
229
Art 3(4) [now 138(4) EC].
230
Art 4(1) [now 139(1) EC].
231
Art 3(4) [now 138(4) EC]. The Commission will assess the chances of an agreement
within the requested extension period. While respecting the independence of the social partners, the Commission will be keen to prevent any prolongation of fruitless negotiations that
would ultimately block the Commissions ability to regulate. See COM(93) 600, para 32.
232
See E Whiteford, W(h)ither Social Policy? in J Shaw and G More (eds) New Legal
Dynamics of European Union (Clarendon Press, Oxford, 1995) 11145 at 111.
233
See N Bernard, Legitimising EU Law: Is the Social Dialogue the Way Forward? Some
Reflections Around the UEAPME Case in J Shaw (ed) Social Law and Policy in an Evolving
European Union (Hart, Oxford, 2000) 279302 at 279.

248 The Treaty on European Union

With the insertion of these two brief paragraphs management and labour
were presented with the tantalising prospect of being transformed from
passive interlocutors engaged in dialogue, into active, nay decisive, bargainers in the Communitys legislative process in the areas covered by
Article 2 [now 137 EC]. It takes two to tango and, at first, there was some
understandable scepticism about whether the social partners would have
the necessary desire both to reach agreements and seek their implementation into national or Community norms. Questions were also raised about
the manner in which the Commission would exercise its role as an
intermediary.234
When, shortly after the new procedure came into operation, the Commission circulated its proposal for a draft directive on European Works
Councils (EWCs),235 which had earlier been deadlocked in the Council,236
the portents were not encouraging. From the perspective of the trade
unions, the text, derived from a joint opinion of 1987,237 was broadly
acceptable. For the employers, however, there was little incentive to reach
agreement when they had every reason to believe that if the negotiations
failed the other partner had more to lose.238 It seemed inevitable that one
party would always have a vested interest in the failure of the process.239
In the case of the EWC proposal, there was added piquancy to the eventual breakdown of the negotiations because the withdrawal of the Confederation of British Industry was one of the main reasons for the impasse.240
As Rhodes pithily observed, the employers now had a means to replace the
UKs veto with their own.241 In practice, however, the position was not so
straightforward. The Commission, faced with the breakdown of negotiations, called the employers bluff by launching a fresh proposal, which was
swiftly converted into the EWC Directive,242 the first legislative measure
adopted under the Agreement.243
The Commissions strategy in the case of the EWC Directive provided
ample evidence that, once the social partners received the Commissions
proposal they were, to apply Bercussons memorable phrase, bargaining in
the shadow of the law for:244
234
See P Lange, Maastricht and the Social Protocol: Why Did They Do It? (1993) 21
Politics and Society 5 at 13.
235
OJ 1994, C135/8. For the revised proposal, see OJ 1994, C199/10.
236
OJ 1990, C39/10.
237
The signatories to the Joint Opinion of March 1987 were the ETUC, UNICE and CEEP.
238
See Whiteford in Shaw and More, n 232 above at 122; and Streeck, n 195 above at 37.
239
Whiteford, ibid at 123.
240
See Brinkmann, n 47 above at 258. For a detailed account, see M Gold and M Hall,
Statutory European Works Councils: The Final Countdown? (1994) 25 Industrial Relations
Journal 177.
241
Rhodes, n 89 above at 300.
242
Adopted in accordance with Art 2(2) of the Agreement as Dir 94/45/EC, OJ 1994,
L254/64.
243
Although the original proposal was revised the substance was largely retained. See C
Barnard, EC Employment Law, 2nd edn (OUP, Oxford, 2000) pp 5279.
244
Bercusson (1992, IRJ) n 33 above at 185.

Articles 3 & 4Representativeness and Democratic Legitimacy 249

Experience from many countries demonstrates that there will be pressures on
the social partners to negotiate and agree to avoid an imposed standard which
pre-empts their autonomy and which may be also a less desirable result.

Following another failed attempt to consult on a proposal concerning

the burden of proof in sex discrimination cases,245 an area that the
social partners regarded as beyond their remit,246 further pressures were
brought to bear by the Commission in its proposals for cross-sectoral
directives concerning parental leave and atypical work.247 On each occasion
the Commission warned in its consultation papers that any fresh proposal
would be more comprehensive. For the employers, framework agreements
now seemed the lesser evil.248 The trade unions, meanwhile, wanted to
demonstrate that the new procedures were workable. This cumulative
pressure secured the desired result: three negotiated framework agreements249 later annexed to directives.250 The mere existence of the agreements
does not, however, herald the successful introduction of a new system
of European industrial relations, for the agreements themselves are less
important than the content,251 to be discussed separately in Section VIII
below. First, we need to consider the wider institutional implications of the
process.

(2) Reinventing Europes Social Policy ArchitectureA Question of

Democratic Legitimacy
Just as the social partners have had to adjust to new roles so too have the
other dramatis personae, the Communitys institutions. Let us consider the
245

See COM(96) 340. The Commission proposal was taken forward using the conventional
legislative route and was eventually adopted as Dir 97/80/EC, OJ 1997, L14/16, as amended
by Dir 98/52/EC, OJ 1998, L205/66.
246
This was a unanimous view reflecting the fact that the content would affect court procedures outside the scope of the social partners. See B Keller and B Srries, The New Social
Dialogue: Procedural Structuring, First Results and Perspectives in B Towers and M Terry
(eds) Industrial Relations Journal European Annual Review 1997 (Blackwell, Oxford, 1998)
7798 at 87.
247
Respectively, COM(96) 26 and COM(90) 533 (the latter forming the basis for the start
of consultations on 27 Sept 1995).
248
See M Schmidt, RepresentativityA Claim Not Satisfied: The Social Partners Role in
the EC Law-Making Procedure for Social Policy (1999) 15 International Journal of Comparative Labour Law and Industrial Relations 259 at 2623.
249
Concluded by the ETUC, UNICE and CEEP on, respectively, 14 Dec 1995 (parental
leave) 6 June 1997 (part-time work) and 18 March 1999 (fixed-term work). See further,
Barnard, EC Employment Law, n 243 above, pp 946.
250
Dir 96/34/EC on the framework agreement on parental leave concluded by UNICE,
CEEP and the ETUC, OJ 1996, L145/4; Dir 97/81/EC concerning the framework agreement
on part-time work concluded by UNICE, CEEP and the ETUC, OJ 1998, L 14/9; Dir 99/70/EC
concerning the framework agreement on fixed-term work concluded by UNICE, CEEP and
the ETUC, OJ 1999, L175/43.
251
See B Keller and B Srries, The New European Social Dialogue: Old Wine in New
Bottles? (1999) 9 Journal of European Social Policy 111 at 123.

250 The Treaty on European Union

changes affecting the Commission, the Council and the European
Parliament sequentially.
The Commission lose control of the right of initiative once the second
stage of negotiation commences.252 Where the parties fail to reach an agreement, as in the first test case on EWCs, the Commissions proposal can be
unfrozen and relaunched under the conventional legislative route. Where,
however, an agreement is signed the parties have two choices. Either they
can jointly request the Commission to propose that the Council adopt a
decision to implement the agreement, or they may prefer to implement the
agreement in accordance with the procedure and practices specific to management and labour and to the Member States. Where the social partners
opt for the latter method a second Declaration annexed to the Agreement
comes into play. The Declaration states:
. . . this arrangement implies no obligation on the Member States to apply the agreements directly or to work out rules for their transposition, nor any obligation to
amend national legislation in force to facilitate their implementation.

While this Declaration has been criticised for stripping Article 4(2) [now
139(2) EC] of much of its potential for producing national legislation as a
result of the social dialogue253 and undermining the obligation to implement,254 it is no more than a statement of the obvious in the sense that any
agreement between the social partners at Community level will only be
given normative effect by national practice and procedure which, in the
absence of binding Community legislation, must be understood as purely
voluntary. Moreover, the Declaration helps to avoid the problem that may
arise where the national affiliates of the Community-wide social partners
have been outvoted but, as independent voluntary organisations, would not
expect to have such a decision imposed on them.255 In practice, however,
any coherent implementation would be extremely unlikely due to major
legal and institutional differences between national industrial relations
systems and the need to ensure 100 per cent coverage.256 The Commission,
aware of the limitations of this method, have merely called for information
and monitoring procedures to ensure effective implementation at national
level.257 Therefore this route has limited utility,258 but it offers an alternative for sectoral agreements that may not be suitable for conversion into
252

Betten, n 224 above at 29, describes this as a hijacking of the Commissions initiative.
See Whiteford (1993, European Law Review) n 80 above at 210.
See Bercusson (1992, Industrial Relations Journal) n 33 above at 1878.
255
See E Franssen, Implementation of European Collective Agreements: Some Troublesome
Issues (1998) 5 Maastricht Journal 53 at 58.
256
See Keller and Srries (1999, Journal of European Social Policy) n 251 above at 119.
257
Adapting and Promoting the Social Dialogue at Community Level, COM(98) 322, para
5.4.1.
258
See B Hepple, European Social DialogueAlibi or Opportunity (Institute of
Employment Rights, London: 1993) p 31; Brinkmann, n 47 above at 256.
253
254

Articles 3 & 4Representativeness and Democratic Legitimacy 251

binding Community directives, or agreements concerning areas falling
outside Article 2 [now 137 EC] such as pay. When this route was tested for
the first time in July 1997 the agreement in question had precisely these
characteristics.259
Where the social partners opt for the former method, the Commission,
as part of its overall responsibility to ensure balanced participation of
management and labour, must make a value judgment on the representative status of the contracting parties,260 their mandate and the legality of
each clause in the agreement in relation to Community law including the
clause on SMEs.261 At this stage, it has been suggested that the Commissions role can be likened to that of a waitress serving up the agreement
in the form of a proposal to the Council.262 This is not strictly correct. The
Commission retains the right not to propose a measure in accordance with
Article 155 [now 211] EC. As a matter of policy, however, the Commission
has declared that, following the formal examination of the agreement, it
will propose its adoption as concluded.263 In practice the Commission has
proposed a draft directive with the sole purpose of putting into legal effect
the agreement negotiated by the social partners, which is attached as an
annex.264 With respect to the implementation of agreements between the
social partners, the Commission has twice proposed the insertion of a nondiscrimination clause in the main body of the draft directive to which the
agreement has been annexed.265 This approach might suggest that the Commission is concerned with the wider public interest and wants to fend off
the accusation that special interest groups have captured the legislative
259
The agreement concerned pay levels and the reduction of working time in the agricultural sector. Two further sectoral agreements have been reached on the organisation of working
time in maritime transport and railways, both in Sept 1998. For further details on the sectoral
dialogue see the Commissions Report on Industrial Relations in Europe2000, COM(2000)
113, pp 67.
260
See E Franssen & A Jacobs, The Question of Representativity in the European Social
Dialogue (1998) 35 Common Market Law Review 1295 at 1306. In Case T135/96,
UEAPME v Council [1998] ECR II2335, the CFI held, at paras 889, that both the Council
and the Commission are under a duty to verify that the signatories to the agreement are truly
representative.
261
See COM(93) 600, para 39. Where the Commission considers that it should not present
a proposal for a Council decision to implement an agreement to the Council, it will immediately inform the parties of the reasons for its decision.
262
See Weiss, n 49 above at 12; cf Betten, n 224 above at 33.
263
COM(93) 600, paras 3839. This is consistent with the wording of the Oct 1991 agreement between the social partners. See Social Europe 2/95, p 149.
264
See for example, Art 1 of the Parental Leave Dir, 96/34/EC, OJ 1996, L145/4.
265
See COM(96) 26, the Commission proposal concerning the agreement on parental leave.
Art 2(5) of the draft directive read: When the Member States adopt the provisions . . . they
shall prohibit any discrimination based on race, sex, sexual orientation, colour, religion or
nationality. See also COM(97) 392 concerning the agreement on part-time work. Art 3 of
the draft read: When Member States adopt the provisions to implement this Directive, these
shall prohibit any discrimination based on sex, race, ethnic origin, religion or beliefs,
disability, age or sexual orientation.

252

The Treaty on European Union

process.266 In practice, however, the Commissions room for manoeuvre is

limited and, although this addition would not have affected the substance
of the text agreed by the social partners, on each occasion the Council
rejected the proposed clause. Nevertheless, the Commission retains a degree
of discretion over its proposal, providing the agreement between the parties
remains untouched.267
Turning now to the position of the Council. On a literal reading of the
first paragraph of Article 4(2) [now 139(2) EC] it might appear that the
Council, the Communitys most powerful institution, loses all of its discretion in this area. On the face of it, following a proposal by the Commission, an agreement negotiated by the social partners shall be implemented
. . . by a Council decision. Further guidance may, however, be gleaned from
the somewhat obtuse wording of the second paragraph. Although this paragraph does not explicitly refer to a right to reject an agreement negotiated
by the social partners, such a right must exist by implication because Article
4(2) [now 139(2) EC] directly refers to the requirements for QMV and unanimity under Articles 2(2) and 2(3) [137(2) and 137(3) EC] respectively.
Moreover, the discretion of the Council to reject an agreement will not be
fettered, for it ultimately has the power of decision under Article 145 [now
202] EC. Therefore an agreement under Article 4(1) [139(1) EC] may fail,
not because the Council has not attempted to act with a view to its implementation, but because the necessary majority has not been achieved.268
Under these circumstances an agreement between the social partners would,
at most, have contractual force between them as signatories but it would
not have normative effect.269 The Commission, in its Communication on
the application of the Agreement, have determined that where the Council
rejects a proposal under this procedure they will withdraw it and examine
whether a legislative instrument in the area in question would be appropriate.270 In theory, the social partners could seek to amend their own agreement to make it acceptable to the Council but this would normally require
the entire Article 4 [139 EC] process to be restarted.271
Having established that the Council has the power to reject a Commission proposal to implement an agreement signed by the social partners, a
further question arises concerning the Councils power to make amendments. According to the Commission, the Council has no opportunity to
amend such an agreement.272 Instead the Councils decision must be limited
266

See Obradovic, n 222 above at 371.

See Franssen, n 255 above at 578.
See G Britz and M Schmidt, The Institutionalised Participation of Management and
Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law (2000) 6 European Law Journal 45 at 54.
269
Ibid at 52.
270
COM(93) 600, para 42.
271
See Franssen, n 255 above at 59.
272
COM(93) 600, para 38.
267
268

Articles 3 & 4Representativeness and Democratic Legitimacy 253

to making the provisions of the agreement binding, so the text of the agreement would not form part of the decision, but would be annexed thereto.273
Although the Council has accepted that it cannot modify an agreement,274
some Member States, who were concerned about the content of the first
agreement on parental leave, expressed the view that certain matters were
the responsibility of national authorities or raised procedural or institutional issues.275 Several scholarly writers have endorsed the Commissions
view.276 The Council does, however, have an overriding power under Article
189a [now 250] EC to make amendments on a legislative proposal from
the Commission, providing unanimity can be secured. Franssen suggests
that the Council may amend the Commissions proposal but not the
annexed agreement.277 An alternative view is that the Council has the power
de jure to amend an agreement under Article 250 EC but will not exercise
this power in practice because of the political consequences.278 Indeed if the
Council were to make amendments to agreements negotiated between the
social partners it would undermine the balance of power between the organisations represented in the social dialogue and destroy confidence in the very
system constructed by Articles 3 and 4 [now 138 and 139 EC].279 The Commission, who regard the text of an agreement between the social partners
as sacrosanct, went so far as to warn the Council that, if it amended the
agreement on parental leave, the proposal would be withdrawn.280 The
Council has taken heed of this advice. To date five proposals for directives
have been adopted unamendedthree cross-sectoral281 and two sectoral.282
None have been rejected.
273

Ibid para 41.

Opinion of 31 March 1994. Council Document 6116/94. See Brinkmann, n 47 above
at 254.
275
See Commission Communication concerning the Development of the Social Dialogue at
Community Level, COM(96) 448, para 68.
276
See Betten, n 224 above at 33; Britz and Schmidt, n 268 above at 55; Watson, n 47
above at 66.
277
See Franssen, n 255 above at 58.
278
See Franssen and Jacobs, n 260 above, who note, at 1306, that the Council seems to
refrain from amending the text and to restrict itself to adopting or rejecting the agreement.
279
On this point, see Franssen, n 255 above at 58.
280
COM(96) 26, point 30.
281
Dir 96/34/EC on the framework agreement on parental leave concluded by UNICE,
CEEP and the ETUC, OJ 1996, L145/4; Dir 97/81/EC concerning the framework agreement
on part-time work concluded by UNICE, CEEP and the ETUC, OJ 1998, L 14/9; Dir 99/70/EC
concerning the framework agreement on fixed-term work concluded by UNICE, CEEP and
the ETUC, OJ 1999, L175/43.
282
Dir 99/63/EC concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners Association (ECSA) and the Federation of Transport Workers Unions in the European Union (FST), OJ 1999, L167/33; Dir
2000/79/EC concerning the European Agreement on the Organisation of Working Time of
Mobile Workers in Civil Aviation concluded by the Association of European Airlines (AEA)
the European Transport Workers Federation (ETF) the European Cockpit Association (ECA)
the European Regions Airline Association (ERA) and the International Air Carrier Association (IACA), OJ 2000, L302/57.
274

254 The Treaty on European Union

An alternative option available to the Council would be to adopt a decision to implement an agreement negotiated by the social partners by issuing
another Community instrument instead of a directive. This raises the possibility that the Council may choose a non-binding instrument such as a
recommendation because a decision in the context of Article 4(2) [now
139(2) EC] is a generic term that encompasses a range of legislative and
non-legislative options available to the Council.283 Such an approach would,
however, frustrate the will of the signatories of an agreement who are
seeking to give it legal effect.284 The Commission, seeking to avoid such an
outcome, has stressed that a decision refers to one of the binding legislative instruments in Article 189 [now 249] EC and that the Commission
should choose the appropriate measure.285 There would be a stronger case
for the Council to adopt a non-binding measure where the subject matter
is concerned with areas covered by Article 2(3) [now 137(3) EC], where
the form of instrument is left open, than Article 2(2) [now 137(2) EC],
where directives are specified. The Council has not pursued the nonlegislative option to date, although it may offer a way out where it does
not wish to be seen to reject an agreement outright.
For the European Parliament the effect has been even more unsettling.
As soon as negotiations between the parties commence, Parliament is
effectively locked out of the process, a position that is only retrieved if the
negotiations are unsuccessful. Where the negotiations result in an agreement, Article 4(2) [now 139(2) EC] assigns no role for the Parliament,
pre-empting its right to involvement under the co-operation, and now
co-decision, procedures provided for under, respectively, Article 2(2) of
the Agreement and now Article 137(2) EC. The Commission, aware of the
sensitivity of excluding the Communitys only directly elected representative institution, has determined that, although it is not legally obliged to
consult the Parliament, it will, nevertheless, inform them at all stages and
send them the text of the agreement, together with its proposal for a decision and the explanatory memorandum, so that Parliament may, should
it consider it advisable, deliver its opinion to the Commission and the
Council.286
While critical of its time-consuming and cumbersome operation,287
Parliament has not expressly objected to the Article 4(2) [now 139(2) EC]
procedure because it is generally supportive of the participation of civil
283
See Bercusson (1994, Industrial Law Journal) n 49 above at 28. As Bercusson notes the
reference to a decision is not to be confused with a decision under Art 189 [now 249] EC
which is a specific legislative instrument binding on those to whom it is addressed, as distinct
from a directive that is addressed only to Member States.
284
See Bercusson, ibid.
285
COM(96) 26, p 7. See Barnard, EC Employment Law, n 243 above, p 93.
286
COM(93) 600, para 40.
287
See European Parliament Report on the Framework Agreement on Parental Leave [1996]
A40064/96, p 8. Discussed by Obradovic, n 222 above at 366.

Articles 3 & 4Representativeness and Democratic Legitimacy 255

society in Union policy formation.288 Where, however, the Council may be
considering rejecting an agreement of the social partners, Parliament has
insisted on its prior right to be consulted and issue an opinion.289 The
Committee on Employment and Social Affairs has been more forthright,
calling for Parliament to be granted the power of co-decision in the form
of a simple power to reject or approve, putting Parliament on a par
with the Council in the framework of the legislative procedure arising
from Article 4(2) [now 139(2) EC].290 In reserving the right to intervene,
Parliament is asserting its institutional prerogative to play an actual part in
the legislative process of the Community.291 Parliaments participation has
been recognised by the Court as a fundamental democratic principle that
the peoples should take part in the exercise of power through the intermediary of a representative assembly.292
In the UEAPME293 case, discussed in more detail in the next section, the
CFI reiterated the democratic principle294 but noted that, in the framework
of the Agreement on Social Policy, democratic legitimacy derives from
Parliaments participation in the conventional legislative procedure under
Article 2(2) [now 137(2) EC].295 In contrast, where the procedure under
Article 4(2) [now 139(2) EC] is activated, the CFI found that there is no
provision for the participation of Parliament.296 Nevertheless, the fundamental principle of democracy, which is a foundation for the Union under
Article F.1 [now 6(1)] TEU,297 requires that the participation of the people
be otherwise assured.298 The CFI concluded that, in order to make sure
that the requirement of democracy is complied with, the Commission and
the Council are under a duty to verify that the signatories to the agreement
are truly representative.299 Unless the parties are sufficiently representative the Commission and the Council must refuse to implement the agreement at Community level.300 Therefore, for the CFI, the issues of democratic
288

See European Parliament Resolution on the new social dimension of the European Union,
OJ 1994, C77/30. Discussed by Obradovic, ibid pp 36366.
289
Ibid.
290
Report on the Commission Communication concerning the development of the social
dialogue at Community level [1997] A40226/97. Discussed by K Armstrong, Governance
and the Single European Market in Craig & de Brca, n 109 above, 74589 at 76970.
291
Case 138/79, Roquette Frres v Council [1980] ECR 3333, para 33.
292
Ibid. See also, Case C300/89, Commission v Council [1991] ECR I2867, para 20;
Case 139/79, Maizena v Council [1980] ECR 3393, para 34.
293
Case T135/96, UEAPME v Council [1998] ECR II2335.
294
Para 88.
295
Ibid.
296
Para 89.
297
Art 6(1) TEU provides that: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which
are common to the Member States.
298
Para 89.
299
Ibid.
300
Para 90.

256

The Treaty on European Union

legitimacy and representativeness are inextricably linked and yet, even if the
parties are deemed to be sufficiently representative according to objective
criteria laid down by the Commission,301 can the democratic principle be
satisfied when only a fraction of workers in the European Union are represented in this law-making procedure302 and an even smaller proportion of
the population as a whole?303 Furthermore, unlike a democratically elected
parliament the decisions of the social partners are formulated in closed sessions by representatives whose decisions are not traceable back to the
people.304 An exploration of the background to the UEAPME case may help
us to unpick this problem.

(3) RepresentativenessTesting the Criteria

When considering the issues of representativeness and democratic legitimacy two related questions keep recurring. Who are management and
labour and, assuming that they can be identified, why should they have a
stake in the legislative process in the area of social policy?
Representativeness is the key criterion for determining the identity of
management and labour.305 This is hardly a new issue. Indeed representativeness has proved to be a thorny problem ever since the foundation of
international tripartitism in 1919. The International Court of Justice was
asked to determine the question in the context of the International Labour
Organisation as early as 1927.306 Within the Community arena the issue
had to be addressed at the outset with the appointment of representatives
to the Consultative Committee of the European Coal and Steel Community307 and the Economic and Social Committee (ECOSOC).308 By the time
301

COM(93) 600, para 24. Discussed below.

In 1990 the share of organised employees ranged from 80% in Denmark to as low as
18% in Greece and 10% in Spain and France. The available evidence suggests that trade union
membership has declined during the 1990s. Moreover, atypical workers and women workers
are under-represented within unions. For further details, see Schmidt, n 248 above at 26566.
303
On this point, see Betten, n 224 above at 32.
304
See Schmidt, n 248 above at 260; Britz & Schmidt, n 268 above at 656.
305
See Bercusson & van Dijk, n 57 above at 1213.
306
See the Serrarens case, Recuil International de Jurisprudence du Travail, Geneva, 1927.
See Franssen and Jacobs, n 260 above at 1312.
307
Under Art 18 ECSC the Committee consists of an equal number of producers, workers,
consumers and purveyors. The Council has responsibility both for assigning the representative organisations to serve on the Committee and appointing the members from the list of candidates nominated by the organisations. In the 1970s this system was challenged by the French
trade union CFDT, which had not been included among the new appointments despite being
the second largest confederation of trade unions in France. The legal challenge failed on the
grounds of admissibility because the ECSC Treaty did not permit private actors to bring annulment proceedingsCase 66/76, CFDT v Council [1977] ECR 305. See Franssen and Jacobs,
ibid at 129697.
308
Art 195(3) [now 259(3)] EC provides that before appointing members of ECOSOC the
Council may consult representative European organisations. See Franssen and Jacobs, ibid
at 1296.
302

Articles 3 & 4Representativeness and Democratic Legitimacy 257

of the TEU there was already a well established procedure for involving the
three largest Community-wide organisations in the social dialogue process
namely: the ETUC,309 representing affiliated trade union confederations;
and UNICE and CEEP,310 representing affiliated employers organisations
in, respectively, the private and public sectors. The Commission, in its 1993
Communication, was inclined to favour the status quo on the grounds that
there was a substantial body of experience already in place among these
organisations.311 In fact the elevated position of each of these organisations
has been, and remains, fiercely contested.312 The Commission, aware of
the sensitivity of the issue and its duty to ensure balanced participation,
conducted a study of the representativeness of the social partners at allindustry level in advance of its 1993 Communication.313 The Commission
drew two main messages from the study:314
(a) the diversity of practice in the different Member States is such that there is no
single model which could be replicated at European level, and
(b) the different Member States systems having all taken many years to grow and
develop, it is difficult to see how a European system can be created by administrative decision in the short term.

Despite these obvious drawbacks the Commission proceeded to draw up

three criteria for organisations to be consulted. They should:315
be cross industry or relate to specific sectors or categories and be organised at
European level;
consist of organisations which are themselves an integral and recognised
part of Member State social partner structures and with the capacity to negotiate
agreements, and which are representative of all Member States, as far as
possible;
have adequate structures to ensure their effective participation in the consultation process.

The Commission appended a list of 29 organisations that complied broadly

with these criteria.316 Each of these organisations would be consulted at the
309
For a comprehensive assessment of the ETUC, see K Abbott, The European Trade Union
Confederation: Its Organisation and Objectives in Transition (1997) 35 Journal of Common
Market Studies 465.
310
See F Traxler, Employers and Employer Organisations in Towers and Terry, n 246
above, 99111.
311
COM(93) 600, para 25.
312
On the trade union side there are two rival European organisationsCESI (Confdration Europenne des Syndicats Indpendants) and CEC (Confdration Europenne des
Cadres). On the employers side UEAPME (Union Europenne de lArtisant et des Petits et
Moyennes Entreprises) claim to be the most representative organisation for SMEs. Other
groups who claim to be under-represented include the civil service (who are not affiliated to
CEEP, which only represents public enterprises), agricultural employers, hoteliers and the
liberal professions. See Franssen and Jacobs, n 260 above at 1299.
313
COM(93) 600. Annex 3.
314
Ibid para 23.
315
Ibid para 24.
316
COM(93) 600. Annex 2. For an updated list, see COM(98) 322. Annex I.

258 The Treaty on European Union

first stage but, while not wishing to take a restrictive view of the issue, the
Commission was conscious of the practical problems posed by a multiplicity
of potential actors. They concluded that only the organisations themselves
would be in a position to develop their own dialogue and negotiating structures.317 Therefore, the Commission was prepared to grant autonomy to the
social partners at the critical negotiation stage even though this inevitably
favoured the established actors. The Commission, having rejected the idea
of establishing an umbrella liaison committee,318 was only prepared to offer
a vague promise to those organisations left out in the cold to promote wider
involvement and pay special attention to the due representation of
SMEs.319
The Commissions criteria have been widely criticised. Bercusson and
van Dijk object to the use of representativeness as the main criterion
when it is not necessarily the most straightforward method of identifying
management and labour.320 The criteria were too closely linked to the
representativeness of Member States rather than the direct link between
the organisations concerned and their members. The ECOSOC Opinion
on the Commissions Communication focused on the need to ensure the
involvement of European social partners who, by reaching agreement,
would be capable of binding national social partners and affecting directly,
or by extension, all workers and employees in the Member States.321
The European Parliament stressed the need for the social partners to
have a mandate from their members to represent them in the context of
Community social dialogue and to demonstrate their representativeness.322
While both of these suggestions offer potential for wider and more representative involvement, they still fail to overcome the Commissions concerns
about diversity and the need to avoid imposing a system on the social
partners.
In its 1996 Communication, the Commission responded to these criticisms
by agreeing to examine each agreement to determine whether those affected
by the agreement have been represented and whether those involved in the

317

Ibid para 26.

Ibid para 27.
Ibid para 26.
320
Bercusson and van Dijk, n 57 above at 1417.
321
OJ 1994, C397/40, para 2.1.12. At para 2.1.9. ECOSOC proposed two alternative
criteria for determining representativeness:
318
319

(a) designate as representative EC level social partners those organisations recognised by

national social partners deemed representative by national law and practice;
(b) the social partners at EC level are to be selected having regard to the nature of the
process and of the outcome of EC social dialogue. These would indicate transnational
criteria linked to national social partners and organisational capacity.
322
Report of the Committee on Social Affairs, Employment and the Working Environment,
on the Application of the Agreement on Social Policy [1994] A30269/94, PE 207.928-/fin.

Articles 3 & 4Representativeness and Democratic Legitimacy 259

negotiations have a genuine interest in the matter and can demonstrate significant representation in the domain concerned.323 Unfortunately the Commission did not add or redefine the criteria to assist them in this process.324
Ultimately, the Commission maintained that it cannot select the negotiators
and must leave it to the social partners to decide who satisfies the criteria.325
When reviewing the position again in 1998, the Commission simply reaffirmed the original three criteria.326 This creates a serious inconsistency for,
as Schmidt notes, the Commissions criteria are strictly formal, relating only
to the associations organisational structure, and say nothing about whether
the agreement in question adequately addresses the interests that it affects
and supposedly represents.327 This criticism strikes at the kernel of the representativeness question for, as Betten observes, UNICE, CEEP and ETUC . . .
may be the most representative of all organisations, but they still do not represent a majority of employers and workers.328 It was precisely this problem
that was brought to a head when the first Framework Agreement on Parental
Leave was signed in December 1995.
On 5 September 1996, UEAPME,329 which claimed to represent the largest
number of small and medium-sized employers at a pan-European level, challenged the Parental Leave Directive330 before the Court of First Instance (CFI)
because it claimed to have been systematically excluded from the negotiations which led to the adoption of the Framework Agreement even though
it had on several occasions expressed the wish to be included and given
reasons why it should be.331 While accepting that it had been involved in the
first stage consultations, UEAPMEs case was that, regardless of the subject
matter, the same trinity of European social partners acted as a closed shop
at the negotiation stage.332 UEAPME applied for judicial review under Article
173 [now 230] EC seeking to annul the whole Directive, or to annul it with
respect solely to its application to SMEs as referred to in Article 2(2) [now
137(2) EC].333 While a series of arguments334 were put forward in support of
their claim, the critical issue was admissibility. The fourth paragraph of
Article 173 [now 230] EC states:
323

COM(96) 448, para 16.

See Schmidt, n 248 above at 263.
325
COM(96) 448, para 14.
326
COM(98) 322.
327
Schmidt, n 248 above at 264.
328
Betten, n 224 above at 32.
329
Union Europenne de lArtisant et des Petits et Moyennes Entreprises.
330
Dir 96/34/EC, OJ 1996, L 145/4.
331
OJ 1996, C318/21.
332
See Betten, n 224 above at 31.
333
Case T135/96, UEAPME v Council [1998] ECR II2335, para 19.
334
Annulment was sought on five grounds: (i) infringement of Arts 3(1) and 4(1) [now
138(1) and 139(1) EC]; (ii) breach of the principle patere legem quam ipse fecisti; (iii)
discrimination between the various representative organisations; (iv) infringement of Art
2(2) [now 137(2) EC] and; (v) breach of the principles of subsidiarity and proportionality.
324

260 The Treaty on European Union

Any natural or legal person may . . . institute proceedings against a decision
addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern
to the former.

On this point the CFI noted that the mere fact that the contested measure
was a directive was not sufficient to render such an action inadmissible.335
The Community institutions could not, merely through their choice of legal
instrument, deprive individuals of the judicial protection offered by Article
173 [now 230] EC.336 Notwithstanding the fact that the Directive was a
legislative act rather than an individual decision it was still possible for
UEAPME to be individually concerned if it could show that it affected them
by reason of circumstances which differentiated them from all other
persons.337 Therefore, UEAPME would have to establish that they possessed
special rights in the context of the procedural measures for the adoption of
the Directive.338
The CFI found that the SME clause in Article 2(2) [now 137(2) EC] did
not convey an automatic right for the representatives of SMEs to participate in the negotiations.339 It followed that they did not have a general right
to participate in the negotiation stage or an individual right to participate
in the negotiation of a framework agreement.340 However, that was not
sufficient to render the action inadmissible. In view of the particular features of the procedure it was also necessary to determine whether
UEAPMEs rights had been infringed as a result of any failure on the part
of either the Commission or the Council to fulfil their obligations under
that procedure.341 The representativeness test bites at this point because
both the Commission and Council have a duty to verify the representativeness of the signatories to the agreement because they are responsible for
endowing an agreement concluded between management and labour with
a Community foundation of a legislative character.342 This obliges them to
ascertain whether having regard to the content of the agreement in question, the signatories are sufficiently representative.343 Where that degree
of representativeness is lacking:344
335

UEAPME, para 63. See Case C298/89, Gibraltar v Council [1993] ECR I3605.
UEAPME, para 63. See Case T122/96, Federolio v Commission [1997] ECR II1559,
para 50.
337
UEAPME, para 69. See Case 25/62, Plaumann v Commission [1963] ECR 95 at 107;
Case T12/93, CCE de Vittel and Others v Commission [1995] ECR II1247, para 36; and
Case T122/96, ibid para 59.
338
UEAPME, para 70.
339
Para 80.
340
Para 82.
341
Para 83.
342
Para 88.
343
Para 90.
344
Ibid. Emphasis added.
336

Articles 3 & 4Representativeness and Democratic Legitimacy 261

. . . the representatives of management and labour which were consulted by the
Commission . . . but which were not parties to the agreement, and whose particular representationagain in relation to the content of the agreementis necessary
in order to raise the collective representativity of the signatories to the required level,
have the right to prevent the Commission and the Council from implementing the
agreement at Community level by means of a legislative instrument.

In those circumstances the non-signatory representatives of management

and labour would have the necessary direct and individual concern to bring
an annulment action.345
Was UEAPMEs participation in the negotiations necessary to achieve the
required level of collective representativity? The CFI answered in the negative for the following reasons. First, the Framework Agreement was based
on minimum requirements for all employment relationships whatever their
form and therefore all signatories had to represent all categories of undertakings and workers at Community level. UNICE met these requirements
in the private sector because its membership included SMEs.346 CEEP has
a general mandate across the public sector.347 Secondly, the proportion of
SMEs represented, respectively, by UNICE and UEAPME, could not be
regarded as a decisive criterion because the Directive was concerned with
the employment relationship and two-thirds of the employees concerned
worked for SMEs linked with UNICE.348 Thirdly, UEAPME were involved
at the consultation stage and the Framework Agreement did take account
of the SME clause in Article 2(2) [now 137(2) EC].349 The action was therefore inadmissible because the Commission and the Council, acting in
conformity with their obligations, in particular those derived from the fundamental democratic principle, had properly taken the view that the
collective representativeness of the signatories was sufficient in relation to
the Framework Agreements content for its implementation at Community
level as a Directive.350
The most remarkable feature of the CFI judgment is, perhaps deliberately, understated. In essence, Articles 3 and 4 of the Agreement [now 138
and 139 EC] operate in accordance with a specific application of the fundamental democratic principle that replaces representation of the people by
the European Parliament with representation of employers and workers by
social partners deemed to be cumulatively representative by the Commission and the Council. Franssen and Jacobs support the approach of the CFI
because it judges the representativeness of the totality of the signatory
345

Ibid.
Paras 989.
347
Para 100.
348
Paras 1024.
349
Paras 1059. The CFI cited clause 2.3(f) of the Framework Agreement which states that
the Member States and/or management and labour may, in particular: authorise special
arrangements to meet the operational and organisational requirements of small undertakings.
350
Para 110.
346

262 The Treaty on European Union

parties rather than any single organisation.351 This argument is superficially
attractive but it rests on two misconceived assumptions. Firstly, it equates
what the CFI describes as collective representativity with democratic
legitimacy, when the latter is derived from the people, usually, but not
exclusively, through the prism of a parliamentary system of governance.
The CFI, and indeed the Commission criteria, ignore the fact that, as Britz
and Schmidt observe, democratic legitimacy and representativeness are two
very different animals.352 Secondly, while the social dialogue offers an alternative mode of involvement in decision making by citizens,353 the CFI has
favoured a narrow representation-based model of democracy that, as
Bernard contends, is concerned with the procedural aspects of the social
dialogue, rather than a wider participatory model that legitimates on the
basis of outcomes.354
Consider, for example, the subject matter of the framework agreements
on parental leave, part-time and fixed-term work. If we take, as a starting
point, the fact that trade unions and employers organisations are per se
the most representative bodies of workers and employers, despite the
evidence of declining membership and affiliations, the representativeness
deficit is compounded when one considers that the proportion of part-time,
fixed-term and temporary workers who are unionised is considerably lower
than the proportion within the workforce.355 In particular women are
under-represented, a fact recognised both by the ETUC356 and the Commission.357 Those most concerned with the outcome of these agreements,
predominantly female carers and atypical workers, were largely disconnected from the process. Precisely the same argument applies to employers
organisations like UEAPME. As Bernard notes, UNICE may represent many
SMEs because of its broad coverage of employers of all sizes, but UEAPME
constitutes a different voice because it exists exclusively to represent and
advocate for SMEs.358
An alternative critique of the judgment in UEAPME has been put
forward by Bercusson who persuasively argues that the autonomy of the
351

Franssen and Jacobs, n 268 above at 1309.

Britz and Schmidt, n 260 above at 66.
353
See Bernard, n 233 above at 281.
354
Ibid at 284.
355
See Schmidt, n 248 above at 265.
356
An ETUC study found that the presence of women in trade union decision-making bodies
across Europe had risen from 23% to 28% in the period from 19931998: The Second Sex
of European Trade Unionism (ETUC and Catholic University of Louvain, Brussels, 1999).
357
See the Commission proposal for a Council Decision on the Programme relating to the
Community framework strategy on gender equality (20012005), COM(2000) 335. Para 3.2
states that the persistent under-representation of women in all areas of decision making marks
a fundamental democratic deficit which requires Community level action. See also, Council
Recommendation 96/694/EC on the balanced participation of women and men in the decision-making process, OJ 1996, L319/11.
358
Bernard, n 233 above at 288.
352

Articles 3 & 4Representativeness and Democratic Legitimacy 263

social partners has been compromised by the additional supervision requirements on the Commission, the Council and, ultimately, the Court.359 In his
view the CFI has chosen the wrong conceptual framework by equating the
social dialogue with the legislative process.360 These are dual processes of
creating Community labour law brought together by the amalgam of
Article 4(2) [now 139(2) EC] which allows for either Member State or Community level erga omnes extension of collective agreements reached between
private organisations.361 The constitutional law paradigm of democratic
legitimacy, institutional scrutiny and judicial review is, therefore, inappropriate for the social dialogue that has its conceptual roots mainly in industrial relations.362 Bercusson concludes that this conceptual problem can be
bridged by treating both the mechanisms in Article 4(2) [now 139(2) EC]
as functionally equivalent with two possible routes for achieving an erga
omnes effect.363 He proposes to tackle the democratic legitimacy question
by promoting the idea of an agreement between the social partners and the
European Parliament on a framework of negotiating rules and principles
which would satisfy the sufficient representativity test of the social partners while preserving the autonomy of the social partners.364
Bercussons argument underlines both the strengths and weaknesses of
involving private actors generally, and the social partners in particular, in
the legislative process. While Bercusson is right to distinguish between the
two different conceptual frameworks that underpin social dialogue and the
conventional legislative process, his analysis does not address the fact that
the process first established by the Agreement on Social Policy is a compromise between these two conceptions that inevitably limits the autonomy
of both the social partners and the Community institutions. In this context
the social dialogue must be understood as an alternative form of lawmaking365 and therefore fundamentally different from collective bargaining.
Moreover, the notion of the social dialogue as national collective bargaining transposed into a Community framework is attractive as an abstracted
view of the process but the comparison is inaccurate for three reasons. First,
the notion of parallel procedures each allowing for an erga omnes
359
See B Bercusson, Democratic Legitimacy and European Labour Law (1999) 28 Industrial Law Journal 153 at 15963. At 163, Bercusson cites Council Document 10218/98 issued
by the Legal Service of the Council in the aftermath of the judgment. The Legal Service
expressed concern at the degree of control retained by the Court which it regarded as excessive and damaging to the Councils institutional prerogatives because it amounted to a denial
of its normal degree of discretion, particularly in the area of social policy.
360
Ibid at 16364.
361
Ibid at 168.
362
Ibid at 16465.
363
Ibid at 169.
364
Ibid at 170.
365
See Bernard, n 233 above at 287; S Fredman, Social Law in the European Union: The
Impact of the Lawmaking Process in Craig and Harlow, n 47 above 386411 at 408; and
Keller and Srries (1999, Journal of European Social Policy) n 251 above at 120.

264

The Treaty on European Union

extension of collective agreements does not match the reality because the
erga omnes approach is not available in several Member States.366 Second,
to describe the trilateral social dialogue as akin to bilateral free collective
bargaining is a misnomer because of the absence of any economic pressure,
particularly in the form of industrial action or threats thereof.367 Hence, the
employers side can refrain from the entire process with impunity, either
because they oppose regulation in the area concerned, or would rather rely
on initiatives at national level, citing the principle of subsidiarity.368 Third,
there is the problem of accountability. While grassroots organisations will
usually be accountable to their members, there is no evidence that the power
granted to management and labour at Community level has been exercised
in a way that is accountable to those over whom it is wielded in a comparable manner.369
One advantage of promoting sectoral rather than cross-sectoral agreements is that the former are negotiated by organisations that are more
directly accountable for their actions, a factor which has led the Commission to develop a specific strategy in this regard.370 Sectoral dialogue committees have been established across 24 sectors as forums to promote social
dialogue with the capacity to negotiate sectoral agreements.371 In each case
the sectoral social partners must submit a joint request and be sufficiently
well organised with a meaningful European presence in line with the established criteria of representativeness.372
Even if one accepts, at least terminologically, both Bercussons conceptualisation of the social dialogue as a form of European collective bargaining and the Commissions rhetoric of representativity,373 we are still
left with the related question that I posed earlier. Why should the social
partners have a stake in the legislative process in the area of social policy?
While this question can be addressed by measuring the essential features of
social dialogue against a variety of models of representative, participative
and associative democracy,374 it cannot be separated from the debate about
the role and future of the European Union which has increasingly focused
366
For example, Denmark, Italy and the UK. See Keller and Srries, ibid at 119120;
Hepple, n 258 above, pp 2830.
367
See Bernard, n 233 above at 286.
368
As in the case of the proposal for information or consultation of workers or their
representatives at national level, COM(98) 612. See E Szyszczak, The New Parameters of
European Labour Law in D OKeeffe and P Twomey (eds.) Legal Issues of the Amsterdam
Treaty (Hart, Oxford, 1999) 14155 at 150.
369
See Obradovic, n 222 above at 356.
370
See Commission Dec 98/500/EC on the establishment of Sectoral Dialogue Committees
Promoting the Dialogue between the social partners at European level, OJ 1998, L225/27.
371
COM(2000) 113, p 6.
372
Art 1 of Commission Dec 98/500/EC, OJ 1998, L225/27. For further discussion, see
Barnard, EC Employment Law, n 243 above, pp 1024; and B Keller and B Srries, Sectoral
Social Dialogue: New Opportunities or Impasses? (1999) 30 Industrial Relations Journal 330.
373
See Britz & Schmidt, n 268 above at 69.
374
See generally, Bernard, n 233 above; and Fredman, n 365 above at 40811.

Articles 3 & 4Representativeness and Democratic Legitimacy 265

on its legitimacy as an entity.375 Indeed, following on from the referenda in
Denmark, France and Ireland in 199293,376 fundamental questions were
asked about the lack of consent among the peoples of Europe for the
concept of a Union, leading to an ongoing legitimacy crisis.377
The Reflection Group,378 established to report to the institutions in the
run-up to the planned 1996 IGC, addressed the twin concerns of openness
and accountability, an approach echoed in the institutional responses,379
which sought to bring Europe closer to the people380 and to make it the
business of every citizen.381 Only in this way would it be possible to
enhance the Unions credibility and to ensure grassroots involvement in the
integration process.382 These reports emphasised the social aspect of legitimacy rooted in popular consent383 with the Treaties as a form of social
contract between EU citizens.384 Paradoxically, the social dialogue, despite
its limitations when measured against both the representative and participative models of democracy, helps to fill a gap in the Unions system of
governance by giving private citizens, broadly representing the two sides
of industry, a stake in both the construction and implementation of
European labour law. Moreover, these are roles to which they appear to
be ideally suited because of their intimate knowledge of the realities of the
workplace.385 For the Commission, the social dialogue is the ideal instrument for the harmonious development of the Commissions social policy.386
This linkage between the citizen and the Union can also be presented as an
expression of a form of horizontal subsidiarity387 at the Community level
375
See G de Brca, The Quest for Legitimacy in the European Union (1996) 59 Modern
Law Review 349; D Curtin, Betwixt and Between: Democracy and Transparency in the Governance of the European Union in Winter et al, n 25 above, 95121; and J Weiler, U Haltern
and F Mayer, European Democracy and its Critique (1995) 18 Western European Politics 4.
376
On 2 June 1992, 50.7% of the Danish electorate voted nej to the TEU, a vote that was
reversed following concessions to Denmark, with 56.8% voting in favour, on 18 May 1993.
Referendums in Ireland, on 18 June 1992, and France, on 20 Sept 1992, were hard fought
with a very close oui vote in France. See D Curtin and R van Ooik, Denmark and the
Edinburgh Summit: Maastricht without Tears in OKeeffe and Twomey (1994) n 21 above,
34965.
377
See de Brca (1996, Modern Law Review) n 375 above at 349.
378
The Reflection Group was established in June 1994 and was composed mainly of
Member State representatives. Bulletin of the European Communities 694, I.25.
379
See de Brca (1996, Modern Law Review) n 375 above at 355.
380
Report of the Council on the Functioning of the Treaty on European Union (Council of
the European Union, Brussels, 1995) p 6.
381
Commission Report on the Operation of the Treaty on European Union, SEC(95) 731,
preface, p 1.
382
Report of the Economic and Social Committee on the 1996 Intergovernmental Conference (Brussels, 4 May 1995) I.2.
383
See de Brca (1996, Modern Law Review) n 375 above at 349.
384
See Weiler et al (1995, Western European Politics) n 375 above at 21.
385
See Fredman, n 365 above at 40910.
386
See the preface by former Commissioner Flynn in Social DialogueThe Situation in the
Community in 1995, Social Europe, 2/95, p 5.
387
See further, Bercusson and van Dijk, n 57 above at 912; cf Lyon-Caen, n 1 above at
59.

266 The Treaty on European Union

arising from the choice of options in Article 4(2) [now 139(2) EC]. As the
Commission explains:388
The Agreement confirms the fundamental role of the social partners . . . in the implementation of the social dimension at Community level. In conformity with the
fundamental principle of subsidiarity . . . there is thus recognition of a dual form of
subsidiarity in the social field: on the one hand, subsidiarity regarding regulation at
national and Community level; on the other, subsidiarity as regards the choice, at
Community level between the legislative approach and the agreement-based
approach.

Therefore the social dialogue process creates a form of stakeholder democracy that has the potential to directly connect people who will be affected
by Community laws with the law making process. This potential will,
however, only be realised if the process becomes more transparent, more
internally democratic, more representative and more accountable. A wider
range of stakeholders drawn from civil society need to be represented in
order to take account of other voices both inside and outside the workplace, including the unemployed and groups who are socially marginalised
or excluded.389 Otherwise the existing corporatist lite will perpetuate a
consensus that excludes the majority and accentuates the sense of popular
alienation associated with the persisting legitimacy crisis. While such a consensus can be superficially presented, in accordance with consociational
theory,390 as a means of gradually broadening ultimate consent to government and stabilising potentially conflicting social interests, it inevitably isolates social forces that are not fully recognised, particularly new minorities,
and reinforces the status quo.391

VIII THE FRAMEWORK AGREEMENTSA QUALITATIVE

ASSESSMENT

In this penultimate section we will concern ourselves with the output of the
Agreement on Social Policy, focusing on the quality of the legislation arising
from cross-sectoral framework agreements on parental leave, part-time
work and fixed-term work. When evaluating the content of these agreements, account will be taken of the inevitable compromises involved in
reaching agreement during the negotiations and the broad policy parameters within which the social partners were operating.

388

COM(93) 600, para 6c. Emphasis added.

Only tentative steps have been taken in this direction. For example an informal and quite
separate European civil dialogue was launched in 1996 bringing together around 1,000
representatives including NGOs, churches and other social actors in regional and local governments. See Hervey, European Social Law and Policy, n 10 above, p 75.
390
See H Daalder, The Consociational Democracy Theme (1974) 26 World Politics 606.
391
See Weiler et al (1995, Western European Politics) n 375 above at 301.
389

The Framework AgreementsA Qualitative Assessment 267

(1) Parental Leave

Directive 96/34 on Parental Leave392 was the first measure adopted as a
Council decision on the basis of a Framework Agreement negotiated
between the social partners under the procedure in Article 4(2) [now 139(2)
EC].393 Once the Commission had satisfactorily completed its tests to ensure
the representativeness of the parties, their mandate and the legality of the
clauses,394 the Directive, having been unanimously adopted by the Council
of the Fourteen, served simply as a wraparound mechanism to put into
effect the annexed agreement on parental leave395 with an implementation
date of 3 June 1998.396 The Directive and, more particularly, the Framework Agreement, is of symbolic importance not just because of its novelty,
but also because of its lengthy gestation period dating back to the
Commissions first attempt to pilot a proposal in 1983 at the tail end of
the first Social Action Programme,397 by which time the UK had become
well versed in wielding the veto in the social policy arena.398 The Commissions idea was kept alive in the Social Charter399 and, in February 1995,
the Commission consulted the social partners with the aim of encouraging
them to negotiate an agreement on the reconciliation of family and professional life.
In part, the Commission was seeking to promote equal opportunities in
recognition of the fact that it is predominantly women who bear the dual
burden of work and care,400 but the proposal was also inextricably linked
to the Communitys labour market objectives centred on expanding employment levels through greater flexibility in work and family life.401 Such
392
OJ 1996, L145/4, amended by Dir 97/75/EC, OJ 1998, L10/24. The amendment extends
the Directive to the territory of the UK. For discussion, see M Schmidt, Parental Leave:
Contested Procedure, Creditable Results (1997) 13 International Journal of Comparative
Labour Law and Industrial Relations 113.
393
Framework Agreement concluded by ETUC, UNICE and CEEP on 14 Dec 1995. A joint
letter sent by these organisations on 5 July 1995 initiated the process.
394
See the general considerations, point 13. The Commission also informed the European
Parliament and the Economic and Social Committee before submitting the proposal to the
Council (general considerations, points 14 and 15).
395
Art 1 of Dir 96/34.
396
Ibid. Art 2(1). Art 2(2) allows for a maximum additional period of one year, if this is
necessary to take account of special difficulties or implementation by a collective agreement.
Art 2(1a) inserted by Dir 97/75, provides for an implementation date of 15 Dec 1999 for the
UK.
397
COM(1983) 686, OJ 1983, C333/6, as revised by COM(1984) 631, OJ 1984, C316/7.
398
See E Ellis, Parents and Employment: An Opportunity for Progress (1986) 15 Industrial Law Journal 97 at 108.
399
Point 16 on equal treatment for men and women provides, inter alia, that measures
should also be developed enabling men and women to reconcile their occupational and family
obligations.
400
See T Hervey and J Shaw, Women, Work and Care: Womens Dual Role and Double
Burden in EC Sex Equality Law (1998) 8 Journal of European Social Policy 43.
401
See the Commissions Medium Term Social Action Programme 19951997, COM(95)
134, para 5.1.2.

268 The Treaty on European Union

flexibility is double-edged for, to apply Deakin and Reeds paradigm,402 it
has both a demand side; the flexible firm, where employers may wish to
vary labour inputs according to the state of external demand, leading to
greater casualisation, and a supply side; family friendly policies, where
changes in labour supply reflect new lifestyle choices and responses to
the changing division of labour within the household.403 It was precisely
because this delicate balance had to be struck that this topic appeared
ideally suited for a negotiated compromise between the social partners.
Before examining the content of the Framework Agreement let us first
consider the issues that provide its backcloth.
From the early 1990s the Commission actively pursued the broad goal
of reconciling work and family life. This aphorism encompasses a range
of policy objectives including high quality affordable care for children and
dependants, parental and other family leave, job sharing, career breaks, and
a reduction in the gender gap in working hours and employment participation.404 The gender gap in employment rates is just under 20 per cent,
increasing to 40 per cent when there is a child under the age of six in the
household.405 The gender gap in terms of full-time employment is significantly higher because 80 per cent of part-time workers are women.406 In
fact, notwithstanding the persisting gender gap, the trend towards an
increase in the participation of women in the labour market during the
1990s has magnified the need for Community action in this area.407 In turn,
these factors have a knock on effect on the gender gap in pay because there
is an inextricable link between pay, childcare and opportunities for employment and promotion.408 All of these issues had been recognised by 1992
when a non-binding Recommendation on Childcare was adopted by the
Council to urge Member States to take and/or progressively encourage
initiatives to enable women and men to reconcile their occupational, family

402
S Deakin and H Reed, The Contested Meaning of Labour Market Flexibility:
Economic Theory and the Discourse of European Integration in Shaw, n 233 above,
7199.
403
Ibid at 735.
404
See the Commission reports on Reconciliation between work and family life (European
Commission DGV, Brussels, 1998); and Gender and working time policies (European
Commission, DGV, Brussels, 1998).
405
Towards a Community Framework Strategy on Gender Equality (20012005),
COM(2000) 335, Annex I, pp 1819. In 1998, 51% of women were in employment
compared with 71% of men. For the 2044 age group with children under the age of five the
comparative figures were 52% and 91%.
406
Employment in Europe 2000 (European Commission, Brussels, 2000) p 30.
407
See generally, E Caracciolo di Torella, The family-friendly workplace: the EC position
(2001) 17 International Journal of Comparative Labour Law and Industrial Relations 325;
and S Fredman, Labour Law in Flux: the Changing Composition of the Workforce (1997)
26 Industrial Law Journal 337.
408
EUROSTAT figures for June 1999 reveal that women earn on average 28% less than
men in the EU. See COM(2000) 335, p 21.

The Framework AgreementsA Qualitative Assessment 269

and upbringing responsibilities arising from the care of children.409 Four
areas were identified for such initiatives:410
1) The provision of children-care services411 while parents are working, are
following a course of education or training in order to obtain employment, or
are seeking a job or a course of education or training in order to obtain employment.
2) Special leave for employed persons with responsibility for the care and upbringing of children.
3) The environment, structure and organisation of work, to make them responsive
to the needs of workers with children.
4) The sharing of occupational, family and upbringing responsibilities arising from
the care of children between women and men.

While not specifying any precise period or indicating any level of payment
for special leave, the Recommendation refers to both men and women
having leave where they desire to properly discharge their occupational,
family and upbringing responsibilities . . . with some flexibility as to how
leave may be taken.412
The Recommendation on Childcare is, intrinsically, a weak form of soft
law falling within a grouping of soft laws that serve as prompters to maintain the momentum of existing programmes or, alternatively, as reminders
of the Communitys unfulfilled ambition.413 Member States are merely
encouraged to take initiatives that would not necessarily involve wider state
provision of childcare. However, at the time of its adoption, the TEU was
not yet in force, and therefore the Recommendation helped to fill a gap and
provide a foundation upon which hard law could be constructed at a later
date once Treaty powers were available and exercisable.414
As a follow-up to the Recommendation, the Commission has produced
baseline data on childcare infrastructure and services in the Member
States.415 The Commissions studies have revealed disparate levels of provision in childcare in general and parental leave in particular. For example,
a Commission survey of 1997416 reported that Belgium, the UK, Ireland and
409

Art 1 of Council Recommendation 92/241/EEC on childcare, OJ 1992, L123/16.

Art 2.
411
Art 2(1) defines children care services as any type of childcare, whether public or
private, individual or collective.
412
Art 4.
413
For a categorisation of Community soft law, see ch 4.
414
See further, F Beveridge and S Nott, A Hard Look at Soft Law in Craig and Harlow,
n 47 above, 285309 at 3068.
415
COM(94) 333, p 43. See Barnard, EC Employment Law, n 243 above, pp 27880.
416
Equal Opportunities for Women and Men in the European Union (European Commission, Brussels, 1997) p 64. For analysis, see G Bruning and J Plantenga, Parental Leave and
Equal Opportunities: Experiences in Eight European Countries (1999) 9 Journal of European
Social Policy 195 at 19698.
410

270 The Treaty on European Union

Luxembourg had no national regulations on parental leave. In the Netherlands, Spain, Greece and Portugal there was no right to paid leave. In all
other EU countries payment was made to partially compensate for loss of
earnings varying from fixed sums to a proportion of the salary.417 The
maximum duration of leave ranged from three and half months in Greece
to three years in France and Spain. Generally leave was only available in
blocks of time and as a family right rather than an individual right. Where
leave was a family right the evidence suggested that fewer fathers took leave,
for example just 1.5 per cent in Germany in 1986.418 In the majority of
countries leave was only available to care for children under the age of
three.419
There is a direct correlation between payment for leave and take-up rates.
Although parental leave was available in the majority of Member States
before the Directive was implemented, figures for 1995 show that just 5 per
cent of men in the EU exercised their right to take leave.420 A survey of
banks in the UK where unpaid parental leave was offered, revealed that just
42 men, out of 130,000 who were eligible, had taken leave over a five-year
period.421 Significantly, take up is highest in Denmark, Finland and Sweden
where the payment is earnings related, with Sweden having a 50 per cent
take up rate among men, a fact that has been made possible because leave
arrangements are very flexible.422
Therefore, when embarking on negotiations, the social partners were
faced with a number of considerations on the substance of any agreement.
An opportunity had been presented to address the reconciliation of work
and family life broadly by including provisions concerning not just parental
leave, but also more general childcare provisions, incorporating ideas
from the Childcare Recommendation, and other family friendly initiatives
such as flexible working hours, career breaks and job-sharing. Several questions arose. Was it possible to cover a wide range of these areas in the
context of the principle of subsidiarity? To what extent should account be
taken of the needs of SMEs by allowing for derogations? What was the
appropriate level for minimum standards and how much flexibility should
be left to the Member States on implementation? Should parental leave be
an individual right or a transferable family right? In particular, the social
417
For example in Finland 66% of the salary was paid. In Germany there was a flat rate
of DM600 per month.
418
See Schmidt (1997, International Journal of Comparative Labour Law and Industrial
Relations) n 392 above at 120.
419
The exceptions were the Netherlands and Sweden (8) and Denmark (9).
420
European Network, Family and Work 2/98 (European Commission, Brussels, 1998)
p 3.
421
House of Commons 199899 Session, Social Security Implications of Parental Leave,
HC 543. Submission by Ruth Kelly MP: www.official-documents.co.uk/. Discussed by A
McColgan, Family Friendly Frolics? The Maternity and Paternity Leave etc. Regulations 1999
(2000) 29 Industrial Law Journal 125 at 139.
422
See (1996) 66 Equal Opportunities Review 22. See McColgan, ibid at 140.

The Framework AgreementsA Qualitative Assessment 271

partners were faced with a dilemma over the issue of paid parental leave.
On the one hand, they were free to negotiate an agreement on matters
covered by Article 2, including the field of equality between men and
women with regard to labour market opportunities. The evidence suggested that this would only be meaningful if leave was paid. On the other
hand, Article 2(6) specifically excluded the subject of pay. Did this necessarily exclude paid leave in the context of the objective in Article 2(1)?
These questions were particularly acute for the ETUC who wanted to make
the new arrangement work but may have gained more from a directive
steered by the Commission, with the support of the European Parliament
and, ultimately, agreed by the Council on the basis of a compromise among
the Member States.423
An examination of the Framework Agreement helps us to answer some
but not all of these questions. The general considerations preceding the
main clauses in the Agreement encapsulate four broad themes: the balancing of work and family life; equal opportunities for men and women;
womens participation in the workforce; and the assumption of a more
equal share of family responsibility by men.424 Flexibility is addressed in a
brief anodyne paragraph:425
Whereas measures to reconcile work and family life should encourage the introduction of new flexible ways of organising work and time which are better suited
to the changing needs of society and which should take the needs of both undertakings and workers into account.

Clause 1 prescribes the purpose and scope of the Framework Agreement,

which is to lay down minimum requirements designed to facilitate the
reconciliation of parental and professional responsibilities for working
parents.426 Therefore its nomenclature, as an agreement on parental leave,
is perplexing when account is taken of the wider purpose it purports to
espouse. To add to the sense of confusion, the Agreement not only grants
leave to working parents427 who have an employment contract or employment relationship,428 but also, quite separately, gives rights to all employees to take time off work on grounds of force majeure for urgent family
reasons.429
Clause 2(1) grants men and women workers an individual right to
parental leave on the grounds of the birth or adoption of a child to enable
423

See Brinkmann, n 47 above at 258.

Dir 96/34, Annex. General considerations, points 35 and 78. See McColgan, n 421
above at 140.
425
General considerations, point 6.
426
Clause 1(1).
427
Clause 2.
428
Clause 1(2) provides that the agreement applies to all workers, men and women, who
have an employment contract or employment relationship as defined by the law, collective
agreements or practices in force in each Member State.
429
Clause 3.
424

272 The Treaty on European Union

them to take care of that child, for at least three months, until a given age
up to eight years to be defined by Member States and/or management and
labour. The individual nature of the right is reinforced by Clause 2(2), which
states that, in order to promote equal opportunities between men and
women, the parties to the Agreement consider that the right to parental
leave should in principle be granted on a non-transferable basis. Therefore, in principle, both parents can take leave at the same time. The Agreement is, however, silent on the question of pay and gives only general
guidance on the detailed application of the right beyond the minimum
requirements. Clause 2(3) provides that:
The conditions of access and detailed rules for applying parental leave shall be
defined by law and/or collective agreement in the Member States, as long as the
minimum requirements of this agreement are respected.

Standard clauses allow for the application or introduction of more

favourable provisions430 and non-retrogression,431 although, to add to the
ambiguity, the Framework Agreement allows Member States and/or management and labour to develop different legislative, regulatory or contractual
positions, in the light of changing circumstances, including the introduction of non-transferability, as long as the minimum requirements are
complied with.432 Moreover, management and labour at the appropriate
level may conclude agreements adapting and/or complementing the provisions of this agreement in order to take account particular circumstances.433 It follows that the Member States and the national social partners
are given a virtual carte blanche to deal not only with such matters as
entitlement, if any, to pay, the period of leave and the age of the child, but
also, specific areas listed in Clause 2(3) which will allow for more flexibility
including:
(a) granting parental leave on a full-time or part-time basis, in a piecemeal
way or in the form of a time-credit system;
(b) making the entitlement to parental leave subject to a work or service
qualification up to a period of one year;
(c) adjustment of the conditions of access and detailed rules for applying
parental leave to the special circumstances of adoption;
(d) establishing notice periods to be given by the worker to the employer
when exercising the right to parental leave, specifying the beginning and
end of the period of leave;
430

Clause 4(1).
Clause 4(2), which states, in its first sentence, that implementation of the agreement
shall not constitute valid grounds for reducing the general level of protection afforded to
workers in the field covered by this agreement.
432
Clause 4(2) second sentence.
433
Clause 4(3).
431

The Framework AgreementsA Qualitative Assessment 273

(e) defining circumstances where, subject to consultation rights, parental
leave can be postponed for justifiable reasons related to the operation
of the undertaking (e.g. where work is of a seasonal nature, where a
replacement cannot be found within the notice period, where a significant proportion of the workforce applies for parental leave at the same
time, where a specific function is of strategic importance).434
(f) In addition to (e) authorising special arrangements to meet the operational and organisational requirements of small undertakings.435
What distinguishes this Agreement from mainstream Community legislation adopted hitherto, such as the Working Time Directive,436 is that flexibility applies not just to particular groups of workers or undertakings but
across the board. The thirteenth and final point in the general considerations helps to explain the rationale for this development and is indicative
of the new legislative method flowing from the social dialogue process:
Whereas management and labour are best placed to find solutions that correspond
to the needs of both employers and workers and must therefore have conferred on
them a special role in the implementation and application of the present agreement.

The remainder of Clause 2 offers core protection to employees who wish

to exercise their right to apply for and take parental leave. Under Clause
2(4) Member States and/or management and labour shall take the necessary measures to protect workers against dismissal in accordance with
national law, collective agreements or practices. Clause 2(5) grants workers
the right to return to the same job at the end of a period of parental leave
but if that is not possible, to an equivalent or similar job consistent with
the employment contract. Clause 2(6) provides that rights acquired
or in the process of being acquired by the worker on the date on which
parental leave starts shall be maintained as they stand until the end of
parental leave.437 Clause 2(7) gives some leeway to Member States and/or
434
Any problem arising from the application of this provision should be dealt with in accordance with national law, collective agreements and practices.
435
Point 12 of the general considerations makes specific reference to account being taken
of the SME clause in Art 2(2) of the Agreement on Social Policy [now 137(2) EC].
436
Dir 93/104/EC, OJ 1993, L307/18.
437
The scope of rights acquired or in the process of being acquired under Clause 2(6) has
been considered by the Court in Case C333/97, Lewen v Denda [2000] ECR I7243. In this
case, the employee, Mrs Lewen, took extended parenting leave in accordance with German
law which states that such leave is voluntary and may last up to three years after the birth of
a child during which time the contract of the employee is suspended. Mrs Lewen was excluded
from the employers Christmas bonus scheme because her contract of employment was suspended. The Court held that the bonus did not constitute a right acquired or in the process
of being acquired by the worker on the date on which parental leave started since it was paid
voluntarily after the start of that leave. This is a very narrow interpretation of Clause 2(6)
that effectively excludes certain payments and fringe benefits that may arise only during the
parental leave period. For discussion, see E Caracciolo di Torella, Childcare, Employment and
Equality in the European Community: First (False) Steps of the Court (2000) 25 European
Law Review 25.

274 The Treaty on European Union

management and labour to define employment status for the period of
parental leave. Clause 2(8) leaves all related matters of social security
entirely to the Member States taking into account the importance of the
continuity of the entitlements to social security cover under the different
schemes, in particular health care.438 The general considerations indicate
that Member States may take account of their budgetary situation.439
Clause 3(1) of the Framework Agreement grants an entitlement to
workers to time off from work on grounds of force majeure for urgent
family reasons in cases of sickness or accident making the immediate presence of the worker indispensable. This right applies to all workers whether
or not they are parents and there can be no service qualification. Typically,
a worker would be taking time off in an emergency situation concerning a
partner, a child, or an elderly or dependant relative. There is no obligation
on the employer to pay the worker who is taking time off. Once again
Member States and/or management and labour may specify the conditions
of access and detailed rules and, moreover, they may limit the exercise of
this right to a certain amount of time per year or per case.
The Parental Leave Directive marks a step in the direction of reconciling
work and family life,440 but the social partners have taken that step very gingerly. The right to time off in cases of force majeure is fairly straightforward
and offers a modicum of reassurance for an employee who has an unsympathetic employer. While the availability of parental leave is an advance, there
is little in the content of the Framework Agreement to suggest that it will be
widely exercised, particularly by men. Although the right to take parental
leave is an individual right, consistent with the equal opportunities objective,
this has to be set against the areas of discretion, such as the service qualification, which, where they are taken up by a Member State, are antithetical to
that right. A survey of the implementation measures taken by the Member
States,441 reveals that several have not introduced paid leave442 while others
have applied only the minimum period of three months leave.443 Without
extended and flexible periods of paid leave it is extremely unlikely that the
equality objective can be furthered, it may even be hindered.444
To what extent is the relative weakness of the Directive a reflection both
on the procedure of legislation via social dialogue and the representativeness, or lack thereof, of the social partners involved? The evidence is not
438

Point 10 of the general considerations states that Member States should maintain entitlement to benefits in kind under sickness insurance during the minimum period of parental
leave.
439
General considerations, point 11.
440
See Schmidt (1997, International Journal of Comparative Labour Law and Industrial
Relations) n 392 above at 12425.
441
Reconciliation between work and family life (European Commission DGV, Brussels,
1998). Discussed by McColgan, n 421 above at 143.
442
UK, Greece, Ireland, Netherlands, Portugal and Spain.
443
UK, Belgium, Greece and Ireland.
444
See McColgan, n 421 above at 143.

The Framework AgreementsA Qualitative Assessment 275

conclusive. For a start, although the Commission proposed the Directive
under Article 2(1) of the Agreement on Social Policy, as an equal opportunities measure, there was some doubt about the legal base because of the
inclusion of clauses concerning termination of employment and social security.445 In the event the Council did not need to decide whether unanimity
was required since there was consensus to adopt the agreement.446 Even if
the social partners had agreed on the need for paid leave, there appears to
have been no leeway for the Directive to be adopted solely on the basis of
the equal opportunities objective and therefore it would not have been possible to bypass the exemption in Article 2(6) of the Agreement [now 137(6)
EC].447 Moreover, while the flexibility clauses are remarkable because of the
wide discretion granted to national actors, they reflect a general trend being
actively pursued by the Commission by the mid-1990s, to adapt and simplify legislation in line with the principle of subsidiarity448 and the need to
avoid placing obstacles in the way of employment and competitiveness.449
Significantly, the Commission funded a 1995 study by UNICE into regulation and competitiveness which emphasised alternatives to Community
legislation.450 In the case of the Parental Leave Directive, the legislation
reflected the lowest common denominator for the social partners.451 For
the employers, or at least those employers organisations present, they
achieved a result that they could live with while avoiding the risk of more
regulatory measure. For the ETUC, they demonstrated that there was no
employers veto while securing an outcome that would not necessarily have
been bettered had the conventional legislative route been pursued.

(2) Part-time Work

Directives 97/81452 on part-time work and Directive 99/70453 on fixed-term
work have a common lineage. As with parental leave, attempts to legislate
445

Clauses 2(4) and 2(8).

See Brinkmann, n 47 above at 255.
On this point, see Ryan, n 196 above at 31314.
448
See COM(93) 545.
449
See the Commission White Paper, Growth, Competitiveness and Employment: The
Challenges and Ways Forward into the 21st Century, Bulletin of the European Communities
Supplement 6/93; and the Report of the Independent Experts on Legislative and Administrative Simplification (the Molitor Report) COM(95) 288. For discussion, see Armstrong, n 290
above at 75667.
450
Releasing Europes Potential Through Targeted Regulatory Reform (UNICE, 1995). See
Armstrong, ibid at 75961.
451
See Schmidt (1999, International Journal of Comparative Labour Law and Industrial
Relations) n 248 above at 26162.
452
Dir 97/81/EC concerning the framework agreement on part-time work concluded by
UNICE, CEEP and the ETUC, OJ 1998, L14/9, as amended by Directive 98/23/EC, OJ 1998,
L131/10. The amendment extends the Directive to the territory of the UK.
453
Dir 99/70/EC concerning the framework agreement on fixed-term work concluded by
UNICE, CEEP and the ETUC, OJ 1999, L175/43.
446
447

276 The Treaty on European Union

in this area had floundered in the early 1980s.454 While the Commission
saw legislation as a means to promote alternative work arrangements and
provide a modicum of protection for workers, there was little appetite
among the Member States for binding Community measures. Once again
the Social Charter was to prove a catalyst for action.455 When, in 1990, an
attempt was made to simultaneously launch three proposals using different
legal bases,456 only the proposal based on Article 118a EEC was successful.457 More contentious horizontal measures concerning the working
conditions of both part-time and fixed-term workers remained in draft
form despite several attempts by the Commission to offer concessions and
to highlight them in its annual reports on the implementation of the
Charter.458
Once the TEU came into force the Commission switched gear. In its 1994
White Paper on Social Policy the Commission proposed a new vertical
directive on part-time work to be introduced as a first step.459 Moreover, they
noted that there had been dramatic changes in the labour market, both in
the model of production and the service sector, leading to more flexible forms
of work contract (fixed-term, temporary and part-time). In a subtle shift of
emphasis, the Commission observed that this had occurred not only because
management wanted to increase flexibility, but also because the workers
involved quite often preferred alternative work patterns.460 They concluded
that, if these flexible forms of work were to be generally accepted, this would
require legislation to ensure that such workers were given broadlyequivalent working conditions to standard workers.461
By the end of 1994 the UK had made it clear that it would not support any
Community legislation on atypical work and would veto any proposals from
the Commission.462 Once again the Commission was presented with an
454
See COM(82) 155, OJ 1982, C62/7 and OJ 1982, C128/2 as amended by OJ 1983,
C18/5 and COM(84) 159. See further, M Jeffery, The Commissions Proposals on Atypical
Work: Back to the Drawing Board . . . Again (1995) 24 Industrial Law Journal 296.
455
The Charter contains several references to atypical or non-standard workers. For
example, point 5 provides that workers subject to terms of employment other than an openended full-time employment contract should benefit from an equitable reference wage. Point
6 requires an improvement of living and working conditions as regards in particular the duration and organisation of working time and forms of employment other than open-ended contracts, such as fixed-term contracts, part-time working, temporary work and seasonal work.
456
COM(90) 228, OJ 1990, C224/8, as amended by COM(90) 533, OJ 1990, C305/12.
For discussion on the legal base issues, see ch 3. See generally, R Blanpain (ed) Temporary
Work and Labour Law (Kluwer, Deventer, 1993).
457
Dir 91/383/EEC supplementing the measures to encourage improvements in the safety
and health of workers with a fixed-duration employment relationship or a temporary employment relationship, OJ 1991, L206/19.
458
COM(92) 562, para 13 and COM(93) 668, p 8.
459
COM(94) 333 at 31.
460
Ibid at 30.
461
Ibid.
462
See Jeffery, n 454 above at 299.

The Framework AgreementsA Qualitative Assessment 277

opportunity to activate the procedures under the Agreement on Social Policy.
The first consultation on flexibility of working time and security for workers
(forms of employment other than full-time, open-ended employment)
commenced in September 1995 and in June 1996 the social partners
announced that they would begin negotiations.463 One year later, following
an extended period of negotiations,464 a Framework Agreement was signed
by the ETUC, UNICE and CEEP on 6 June 1997. The Commissions
proposal swiftly followed465 and Directive 97/81 was adopted on 15 December 1997.466 While the Directives sole stated purpose is to implement the
annexed Framework Agreement,467 a secondary objective, conveyed mainly
through the Commissions Explanatory Memorandum, is to reinforce the
references in the Framework Agreement to SMEs at a time when the litigation brought by UEAPME was pending.468 The Council, consistent with
its minimalist approach to implementation, deleted a proposed nondiscrimination clause469 and a provision concerning effective sanctions.470
The implementation date of the Directive was 20 January 2000.471
Before evaluating the Framework Agreement, two highly influential
developments must be taken into account. Firstly, in June 1994 the ILO
adopted Convention No 175 and Recommendation No 182 concerning
part-time work.472 The form and content of the Framework Agreement has
been inspired by the ILO Convention, which formed the basis for the Commissions proposals and heavily influenced the ETUCs negotiating position.473 The significance of the ILO Convention, however, is that it marks
a shift away from the ILOs traditional social justice philosophy.474 The
463

See the Commissions Explanatory Memorandum, COM(97) 392, paras 9 and 11.
On 12 March 1997 the social partners asked the Commission for a further three months
in accordance with Art 3(4) of the Agreement [now 138(4) EC]. The Commission concurred.
Ibid para 9.
465
COM(97) 392 was issued on 23 July 1997, just six weeks after the Framework Agreement was signed.
466
OJ 1998, L14/9.
467
Art 1.
468
COM(97) 392, paras 2429. For example, point 7 of the general considerations to the
Framework Agreement declares that: whereas this agreement takes into consideration the need
to improve social policy requirements, to enhance the competitiveness of the Community
economy and to avoid imposing administrative, financial and legal constraints in a way which
would hold back the creation and development of small and medium-sized undertakings.
469
Ibid draft Art 3.
470
Ibid draft Art 4, which stated that penalties must be effective, commensurate with the
infringement, and must constitute a sufficient deterrent.
471
7 April 2000 was the implementation date for the UK. Dir 98/23, OJ 1998, L131/10.
472
Text available at: <www.ilo.org>. For discussion, see J Murray, Social Justice for
Women? The ILOs Convention on Part-time Work (1999) 15 International Journal of Comparative Labour Law and Industrial Relations 3.
473
See further, Murray, ibid at 4; and M Jeffery, Not Really Going to Work? Of the Directive on Part-Time Work, Atypical Work and Attempts to Regulate It (1998) 27 Industrial
Law Journal 193 at 200.
474
Murray, ibid.
464

278 The Treaty on European Union

Convention breaks new ground because, as Murray notes,475 it qualifies
rights already enshrined within core ILO conventions and seeks to increase
employment in ways that may result in the lowering of working conditions
in ratifying Member States.476 The focus of the Convention is on equal treatment rather than positive rights for part-time workers.477 Significantly, the
latter are largely to be found in the advisory Recommendation.478 The
Convention seeks to guarantee the same protection as that accorded to
comparable full-time workers in respect of: the right to organise; to bargain
collectively; and act as workers representatives; to occupational health and
safety; and non-discrimination in employment and occupation.479 Part-time
workers should receive the same proportionate basic wage as full-time
workers engaged in the same or similar work.480 There should also be equal
treatment in respect of, inter alia, maternity protection, termination of
employment, paid annual leave, and sick leave, although a Member State
may be able to exclude workers whose hours of work or earnings are below
specified thresholds.481 Article 3(2), however, allows Member States, after
consultation with the social partners at national level, to exclude from the
operation of the Convention particular categories of workers or establishments when its application to them would raise particular problems of a
substantial nature.482 Finally, Articles 9 and 10 are concerned with the
promotion of part-time work including the voluntary transfer of workers
from full-time to part-time work and vice versa.483
475

Murray, ibid.
Art 2 offers some protection against this eventuality because it states that the Convention does not affect more favourable provisions in other ILO conventions.
477
Murray, n 472 above at 6.
478
For example, rights to consultation on the introduction or extension of part-time
working; to be informed of the specific conditions of employment; to social security benefits
and employment compensation schemes; and paid educational, parental and dependant leave;
access to training, career opportunities and occupational mobility (points 4,5, 9, 10, 13 and
15).
479
Art 4.
480
Art 5 and Art 1(c)(i). This is narrower than ILO Convention No 100 on Equal Remuneration for Men and Women Workers for Work of Equal Value, both because it is restricted
to equal work rather than equal value, and it only covers the basic wage and not, as in
Convention No 100 any additional emoluments whatsoever possible directly or indirectly,
whether in cash or in kind. See Murray, n 472 above at 1011.
481
Art 8(1). This exemption also covers equal treatment in social security schemes under
Art 6. The Convention gives little guidance on the criteria for setting these thresholds except
that they shall be sufficiently low as not to exclude an unduly large percentage of part-time
workers (Art 8(2)). Member States availing themselves of these thresholds are to consult the
social partners, periodically review them and report to the ILO (Art 8(3) and (4)).
482
As Murray notes, n 472 above at 910, this conflicts with ILO Conventions Nos 87 and
98, which grant workers rights to freedom of association and to organise. Convention No
98 does, however, contain a derogation concerning the armed forces, the police and public
servants.
483
Art 10. Murray, ibid notes, at 13, that voluntary transfer is only where appropriate,
implying that there may be unspecified situations where a forced transfer may be permitted
contrary to ILO Convention No 29 on Forced or Compulsory Labour.
476

The Framework AgreementsA Qualitative Assessment 279

Secondly, in April 1997, at a critical stage in the negotiations between
the social partners on part-time work, the Commission issued its seminal
Green Paper on Partnership for a New Organisation of Work,484 which
sought to elicit a debate about changes in the labour market from full-time
to part-time work, from permanent to fixed-term contracts, from manufacturing to service sectors, from office to home working and, to a lesser
extent, from male to female employment as a proportion of the workforce.485 In particular, the number of part-time workers in the EU was 24
million and rising fast, while up to 40 per cent of new jobs were on
temporary contracts. In the post-modern labour market the typical worker
had become atypical. The Commission explained its rationale for action
on part-time work thus:486
This form of work represents both opportunities and risks. From the employers
point of view it provides the flexibility which is necessary to meet changing consumer demands, especially in services. From the workers point of view it also provides a flexibility that makes it easier to combine work with other responsibilities,
for example studies or housework. The problem is that conditions of employment,
for example social protection, for part-time workers are often limited when
compared with those for full-time work. This crystallises the benefits for both sides
and could lead to the integration of part-time workers into the labour market, in
particular by making their work less precarious . . . A European agreement on this
would make an important contribution to the development of flexibility and
security in working life.

The Framework Agreement draws heavily from the ILO Convention while
emphasising the balance in the Green Paper between flexibility and security. Indeed the first sentence of the preamble declares that the Framework
Agreement is a contribution to the overall European strategy on employment. This is reinforced in point 4 of the general considerations, following on from the preamble, which directly refers to the employment
promotion objectives of the Essen European Council of December 1994,
which called for measures aimed at:487
. . . increasing the employment intensiveness of growth, in particular by more
flexible organisation of work in a way which fulfils both the wishes of employees
and the requirements of competition.

This balance is reflected in the dual purpose presented in Clause 1. First,

the Framework Agreement seeks to provide for the removal of discrimination against part-time workers and to improve the quality of part-time

484

COM(97) 128.
Employment in Europe 1999 (European Commission, Brussels, 1999) p 7.
COM(97) 128, para 52. Emphasis added.
487
Emphasis added. This is the second of five employment priorities agreed at the Essen
European Council held on 9/10 Dec 1994. For discussion, see ch 7.
485
486

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work.488 Secondly, it strives to facilitate the development of part-time work

on a voluntary basis and to contribute to the flexible organisation of
working time in a manner that takes into account the needs of employers
and workers.489 The latter forms the basis for specific measures in Clause
5 whilst also satisfying the SME clause in Article 2(2) of the Agreement on
Social Policy [now 137(2) EC].
Before addressing the principle of non-discrimination, the Framework
Agreement seeks to determine its scope and define who is a part-time
worker and a comparable full-time worker. The scope of the Agreement
is limited to part-time workers with an employment contract or employment relationship in accordance with national law.490 Moreover, Member
States may, after consultation with national social partners, wholly or partly
exclude part-time workers who work on a casual basis.491 Such exclusions
shall be reviewed periodically to establish if the objective reasons for
making them remain valid.492 There is no definition of a casual part-time
worker, although it is implicit that this is a matter for national law.
Clause 3 defines a part-time worker as an employee whose normal
hours of work, calculated on a weekly or annual basis, are less than those
of a comparable full-time workerdefined as a full-time worker in the
same establishment with the same type of employment contract or relationshipwho is engaged in the same or similar work/occupation with
due regard being given to other considerations including seniority and
qualifications/skills. In the absence of a comparable full-time worker,
reference may be made to collective agreements, national legislation, or
practice. No attempt is made to define full-time work, although there is
a side reference to the principle of pro rata temporis that shall apply where
appropriate.493
The principle of non-discrimination is set out in Clause 4(1) as follows:494
In respect of employment conditions, part-time workers shall not be treated in a
less favourable manner than comparable full-time workers solely because they work
part-time unless different treatment is justified on objective grounds.

The Agreement does not flesh out the meaning of the term employment
conditions. Unlike the ILO Convention, it makes no direct reference to
areas such as health and safety, organisation and representation, pay,
social security, maternity, dismissal, paid leave and sick leave.495 While it
488
489
490
491
492
493
494
495

Clause 1(a).
Clause 1(b).
Clause 2(1).
Clause 2(2).
Ibid.
Clause 4(2).
Emphasis added.
See Jeffery (1998, Industrial Law Journal) n 473 above at 200.

The Framework AgreementsA Qualitative Assessment 281

would have been desirable to expressly include these areas, it should be
noted that the term employment conditions is capable of broad interpretation by the Court to include each of these areas, with the exception of
social security, providing that they are part of the employment contract or
relationship of the comparable full-time worker. Although the exclusion of
social security is regrettable, it is logical because this is not an area that
would normally fall within the remit of the social partners and it raises
wider issues that should be addressed by separate measures taken at
national level or, if necessary, a specific Commission proposal pursued
through the conventional legislative route. By contrast, the express inclusion of pay would have posed difficulties because of the operation of Article
2(6) [now 137(6) EC], although the issue of pay in the context of the principle of non-discrimination, rather than positive rights, is quite different
from that envisaged by the exemption. Moreover, although Directive
91/383496 does not refer explicitly to the health and safety of part-time
workers, the scope of the framework Directive on Health and Safety encompasses all workers.497
An additional factor, when interpreting the scope of the principle of
non-discrimination in the context of part-time work, is that sex discrimination and discrimination against part-time workers is regarded as mutually exclusive for the purposes of the Directive. Once again, this can be
explained by reference to the ILO Convention, which also separates out
these two issues. Within the framework of Community law, this is
remarkable given the Courts case law on sex discrimination and part-time
workers and the fact that 80 per cent of part-time workers are female, a
significant factor when explaining the gender gap in pay and other conditions of employment. In practice, however, the distinction makes sense
because the Directive may provide a useful fallback for women who are
unable to prove sex discrimination in the context of Article 119 [now 141]
EC and the Equal Treatment Directive.498 The Directive is, by virtue of
Clause 6(4) without prejudice to any more specific Community provisions,
and in particular . . . concerning equal treatment or opportunities for men
and women.499 It follows that, under Clause 4(1), female and/or male
part-time workers, individually or as a group, will have to show that discrimination arises solely because they are part-time workers who can be
compared with full-time workers in the same establishment performing
the same or similar work, whereas, in a sex discrimination case, it is necessary for women to leap the initial hurdles of showing that not only are
substantially more part-time workers in the enterprise women, but also,
496
497
498
499

OJ 1991, L206/19.
OJ 1989, L183/1.
Dir 76/207/EEC, OJ 1976, L39/40.
Emphasis added.

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women part-time workers should be compared with full time, predominantly male, workers.
The reference to objective justification in Clause 4(1) is more complex.
Although there is now a codification of the Courts case law on objective
justification in Directive 97/80 on the burden of proof in sex discrimination cases,500 adopted on the same day as the Part-time Work Directive,501
that Directive does not cover the part-time work or fixed-term work directives which have identical provisions.502 Clause 4(1) of the Framework
Agreement makes no distinction between direct and indirect discrimination,
whereas Directive 97/80 specifically defines indirect discrimination.503 The
orthodox position is that there can be no objective justification for direct
sex discrimination.504 Theoretically, the same objective reason could be
given to defeat a case mounted on the grounds of both sex discrimination
and part-time/fixed-term work discrimination with different rules in
operation regarding the burden of proof.505 More problematically, if direct
discrimination against part-time workers can be justified this may act
as a barrier to women seeking to rely on the Part-time Work Directive as
an alternative to a sex discrimination claim.
Moreover, to further muddy the waters between part-time work and sex
discrimination cases, Clause 4(4) provides that Member States, where
justified by objective reasons, may, where appropriate, and subject to
consultation, make access to particular conditions of employment subject
to a period of service, time worked, or earnings qualification. These qualification rules are to be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4(1). This is an odd
clause, wider than the derogation in Article 8(1) of the ILO Convention,
and explainable only as a compromise between the social partners. Any
such review would inevitably lead to the conclusion that these qualifying
500

Dir 97/80/EC, OJ 1997, L14/16.

15 Dec 1997.
502
See Clause 4(1) of the Framework Agreement annexed to Dir 99/70/EC, OJ 1999,
L175/43.
503
Art 2(2) of Dir 97/80/EC, OJ 1997, L14/16.
504
See generally, T Hervey, Justification of Indirect Sex Discrimination in Employment:
European Community Law and UK Law Compared (1991) 40 International and Comparative
Law Quarterly 807; T Hervey, Justifications for Sex Discrimination in Employment (Butterworths, London, 1993) ch 8; and Barnard, EC Employment Law, n 243 above, pp 21320.
505
By analogy with sex discrimination cases, the appropriate question in each case would
be: what are objective factors unrelated to part-time work? For example, in Case C167/97,
R v Secretary of State for Employment, ex parte Seymour-Smith [1999] ECR I623, the UK
argued that a reduction in the national two-year qualifying period for unfair dismissal claims
would act as a deterrent to recruitment. The Court, having accepted that the encouragement
of recruitment was a legitimate social policy aim, considered whether such an aim could objectively justify indirect sex discrimination and stated that it must also be ascertained, in the
light of all the relevant factors and taking into account the possibility of achieving the social
policy aim in question by other means, whether such an aim appears to be unrelated to any
discrimination based on sex and whether the disputed rule, as a means to its achievement, is
capable of advancing that aim (para 72).
501

The Framework AgreementsA Qualitative Assessment 283

rules are, intrinsically, discriminatory against part-time workers, and yet,
they may be saved by arguments founded on objective justification.
Provisions in Clause 5 deal with the second objective of facilitating the
development of part-time work and the flexible organisation of working
time. While these are not conventional provisions in a Community directive on employment protection or non-discrimination, the inclusion of
Clause 5 is a direct consequence of the framework of the ILO Convention
rather than the involvement of the social partners in the pre-legislative
process.
Clause 5(1) broadly following Article 9 of the ILO Convention, places
obligations on the Member States and the social partners to review
obstacles that may limit the opportunities for part-time work and where
appropriate eliminate them. Any steps taken must be consistent with the
principles of non-discrimination and non-retrogression506 and the overall
objectives of the Directive. In practice this will allow for a measure of
deregulation consistent with the balance between security and flexibility,
because the principle of non-retrogression is a qualified one. While implementation of the Framework Agreement shall not constitute valid grounds
for reducing the general level of protection afforded to workers, this does
not prejudice the right of Member States and/or social partners to develop
different legislative, regulatory or contractual provisions, in the light of
changing circumstances and, specifically, does not prejudice the employment promotion objectives of Clause 5(1) as long as the principle of nondiscrimination as expressed in Clause 4(1) is complied with. Therefore, at
national level, the application of the Framework Agreement is dynamic and
may allow for deregulation over time,507 particularly where there is objective
justification including, for example, justifications used in sex discrimination
cases, such as economic factors relating to the needs of the undertaking,508
or state measures deemed to be within a margin of discretion and capable of
achieving the aims of social and employment policy.509
Clause 5(2) is more direct:510
A workers refusal to transfer from full-time to part-time work or vice-versa should
not in itself constitute a valid reason for termination of employment, without
prejudice to termination in accordance with national law, collective agreements
and practice, for other reasons such as may arise from the operational requirements
of the establishment concerned.
506

Clause 6(2).
See Jeffery (1998, Industrial Law Journal) n 473 above at 197.
508
See Case 170/84, Bilka Kaufhaus v Weber [1986] ECR 1607; and Case 127/92, Enderby
v Frenchay HA [1993] ECR I5535.
509
See Case C317/93, Nolte v Landesversicherungsanstalt Hannover [1995] ECR I4625;
and Case C444/93, Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz [1995]
ECR I4741.
510
Emphasis added.
507

284 The Treaty on European Union

This is a double-edged sword for employees who may, under current
national legislation, be under no obligation at all to switch to, or from,
part-time work. While there is a reference in Clause 1(a) to the development
of part-time work on a voluntary basis, the provision in Clause 5(2) may
undermine existing national protection by introducing a presumption that,
where such a change is necessary for a genuine operational reason within
an enterprise, an employee who refuses to agree may be fairly dismissed.
For example, Jeffery suggests that this might include an offer of part-time
work as an alternative to, or in mitigation of, redundancy.511
Finally Clause 5(3) addresses many of the areas covered by the ILO
Recommendation, but there is no onus on Member States to make them
obligatory or for employers to act on them. Rather, as far as possible,
employers should give consideration to:
(a) requests by workers to transfer from full-time to part-time work that becomes
available in the establishment;
(b) requests by workers to transfer from part-time to full-time work or to increase
their working time should the opportunity arise;
(c) the provision of timely information on the availability of part-time and full-time
positions in the establishment in order to facilitate transfers from full-time to
part-time or vice versa;
(d) measures to facilitate access to part-time work at all levels of the enterprise,
including skilled and managerial positions, and where appropriate, to facilitate
access by part-time workers to vocational training to enhance career opportunities and occupational mobility;
(e) the provision of appropriate information to existing bodies representing workers
about part-time working in the enterprise.

Therefore, only the heavily circumscribed non-discrimination provisions

offer additional rights for part-time workers and, for many women workers,
they may only duplicate rights that already exist.512
The Directive is unlikely to achieve its first objective of removing discrimination against part-time workers.513 It would be wrong, however, to
blame the vacuity of the Directive on the social partners. They were hardly
likely to negotiate a stronger binding text at the level of the Community
than had been agreed by their colleagues at the ILO. Although the ILO text
is broader in its coverage, the derogations are not dissimilar. Furthermore,
in the light of the preceding Green Paper, and the overriding importance of
the employment promotion agenda by the mid-1990s, there is no evidence
to suggest that a more concrete measure would have ensued had the social
partners failed to negotiate an agreement.514 Indeed, as former Commis511

Jeffery (1998, Industrial Law Journal) n 473 above at 198.

See Schmidt (1999, International Journal of Comparative Labour Law and Industrial
Relations) n 248 above at 262.
513
See Jeffery (1998, Industrial Law Journal) n 473 above at 196.
514
See however, the criticisms of the European Parliament in its response: [1997] A410352/97.
512

The Framework AgreementsA Qualitative Assessment 285

sioner Flynn noted, the proposal envisaged by the Member States in 1994
had excluded social security and replaced positive rights with the principle
of non-discrimination leaving only the minimum of the minimum, below
which nothing is conceivable in social protection.515

(3) Fixed-term Work

On 23 March 1998, the social partners (UNICE, CEEP and the ETUC)
announced their intention to start negotiations on fixed-term work. After
an extended period of negotiations,516 the three organisations concluded a
Framework Agreement on 18 March 1999.517 In the meantime, UEAPME
had reached an accommodation with UNICE which allowed it to have an
input into the negotiation stage as part of the UNICE delegation.518 As with
the proposal on part-time work, the Commission, in its Explanatory Memorandum,519 sought to include provisions concerning non-retrogression and
sanctions.520 Once again the Council deleted these provisions, although nonretrogression is provided for in the body of the Framework Agreement.521
Council Directive 99/70 was adopted on 28 June 1999,522 the first measure
enacted under the revised social provisions made effective by the ratification of the Amsterdam Treaty.523 The implementation date was 10 July
2001.524
The Framework Agreement on Fixed-term Work mirrors its predecessor
on part-time work in a number of respects, although there are some important differences. In particular, the employment promotion objective is made
even more explicit. The first paragraph of the preamble proclaims:
This framework agreement illustrates the role that the social partners can play in
the European employment strategy . . . and, following the framework agreement on
part-time work, represents a further contribution towards achieving a better balance
between flexibility in working time and security for workers.

Whereas, as recently as 1998, the ETUC had declared that temporary work
was essentially a low quality form of employment and should be strictly
515
Agence Europe, 8 Dec 1994. Cited by Jeffery (1998, Industrial Law Journal) n 473
above at 201.
516
The Commission agreed to the extension in accordance with the procedure in Art 3(4)
of the Agreement [now 138(4) EC].
517
For a full summary of the background, see the Commissions Explanatory Memorandum, COM(99) 203.
518
Ibid para 17.
519
Ibid.
520
Ibid draft Arts 2 and 3.
521
Clause 8(3).
522
OJ 1999, L175/43.
523
The legal base was Art 137(1) EC concerning working conditions [ex Art 2(1) of the
Agreement], although this is not directly referred to in the Directive.
524
Art 2.

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The Treaty on European Union

limited in its application,525 it was now prepared to recognise that fixedterm contracts respond, in certain circumstances, to the needs of employers and workers.526 While expressing a preference for employment contracts
of an indefinite duration, the regulatory effect of the Framework Agreement
is to normalise fixed-term contracts entered into directly by employers and
workers.527
Clause 1 sets out the two-fold purpose of the Framework Agreement,
which is to:
(a) improve the quality of fixed-term work by ensuring the application of the
principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive
fixed-term employment contracts or relationships.

Hence, the merits of fixed-term work are undisputed, but what really matters
is its qualitya concept that has been developed as the central plank of the
Commissions Social Policy Agenda of 2000.528 Moreover, the need to
improve the quality of work and prevent abuse is linked directly to the equality objective because more than half of the fixed-term workers in the EU are
women.529 The purpose of the measure is far narrower than the Framework
Agreement on Part-time Work, and yet, from a social justice perspective, it
is marginally stronger. There is no suggestion that promotion of fixed-term
work should be a positive Community objective. Rather, fixed-term work is
accepted, or at least condoned, but requires not only the application of a
near identical non-discrimination clause, but also an element of standardisation to prevent abuse, while allowing for considerable flexibility in
particular sectors and occupations, including seasonal activities.
Clause 2, read in conjunction with the preamble and general considerations, determines the scope of the Framework Agreement. Member States can
limit its application to fixed-term workers with a contract of employment or
employment relationship.530 Unlike the Part-time Work Agreement, there is
no exemption available for casual workers, although there is an oblique reference to the need to take account of the situation in each Member State and
the circumstances of particular sectors and occupations, including the activities of a seasonal nature.531 Temporary agency workers at the disposition
of a user enterprise, are excluded by a short paragraph in the preamble,532 a
525
See J Murray, Normalising Temporary Work (1999) 28 Industrial Law Journal 269 at
27071.
526
Preamble, para 2.
527
Murray (1999, Industrial Law Journal) n 525 above at 271.
528
COM(2000) 379, approved at the Nice European Council, 7/9 Dec 2000, Presidency
Conclusions, Annex I. See further, ch 11.
529
Point 9 of the general considerations.
530
Clause 2(1).
531
Point 10 of the general considerations.
532
Para 4.

The Framework AgreementsA Qualitative Assessment 287

point reinforced in Clause 3(1) which, when defining who is a fixed-term
worker, refers only to contracts entered into directly between an employer
and a worker. In the preamble the social partners declared that they intended
to reach a separate agreement on temporary agency work at a later date.533
Further, after consultation with national social partners, Member States can
exclude, first, initial vocational training and apprentice schemes and, second,
employment contracts and relationships concluded within the framework of
a specific public or publicly-supported training, integration and vocational
retraining programme.534 Therefore, the State is able to exempt itself and its
contractors entirely where projects are linked with the employability and
adaptability criteria that underpin the European Employment Strategy, to
be discussed later in chapters 7 and 11.
Clause 3 defines the terms fixed-term worker and comparable permanent worker in a manner that mirrors the approach adopted for part-time
and comparable full-time work under the Part-time Work Agreement. A
fixed-term worker is a person with a direct employment contract or relationship with an employer where the end of that contract or relationship is
determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.535 By contrast,
a comparable permanent worker is a worker with an employment contract or relationship of indefinite duration in the same establishment,
engaged in the same or similar work/occupation, due regard being given to
qualifications/skills. In the absence of a comparable permanent worker in
the same establishment, reference shall be made to the applicable collective
agreement or in accordance with national law and practice.536
The principle of non-discrimination is contained in Clause 4(1) providing:
In respect of employment conditions, fixed-term workers shall not be treated in a
less favourable manner than comparable permanent workers solely because they
have a fixed-term contract or relationship unless different treatment is justified on
objective grounds.

Therefore, as with part-time work, both direct and indirect discrimination

can be objectively justified and, where appropriate, the principle of pro rata
temporis shall apply.537 In the case of fixed-term work, however, the worker
faces additional disadvantages arising from lack of recognition of relevant
prior service and related factors that are not fully taken into account.538
However, Clause 4(4) represents a shift of emphasis from the parallel provision concerning part-time work, providing that:
533
534
535
536
537
538

Ibid.
Clause 2(2).
Clause 3(1).
Clause 3(2).
Clause 4(2).
See Murray (1999, Industrial Law Journal) n 525 above at 27475.

288 The Treaty on European Union

Period-of-service qualifications relating to particular conditions of employment shall
be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds.

Therefore, the assumption is that such qualification rules are discriminatory,

whereas, under Clause 4(4) of the Part-time Work Agreement, they amount
to derogations available to Member States subject only to consultation and
periodic review. There is also no reference to derogations on the basis of
time worked or an earnings qualification. This suggests that the ETUC
toughened up their negotiating position or, more likely, the employers were
prepared to be more flexible because the economic cost of regulating parttime work is far greater, particularly as national law protects fixed-term
workers in a similar fashion in the majority of Member States.539
Clause 5 enumerates the measures intended to prevent abuse arising from
the use of successive fixed-term contracts or employment relationships.540
There is no definition of abuse in this context although such workers are
often placed in an extremely vulnerable position under national law.
Further, the Court is somewhat reluctant to intervene in matters concerning the construction and termination of the contract of employment or
employment relationship under national law. This point has been highlighted by the Courts judgment in Jimnez Melgar,541 a case where the nonrenewal of the contract of a pregnant worker who had been employed under
successive fixed-term contracts was deemed not to be a dismissal for the
purposes of the protective provisions in Article 10(1) of the Pregnancy and
Maternity Directive.542 In such circumstances there may still be a violation
of the Equal Treatment Directive, but would such treatment amount to an
abuse under the Fixed-term Work Directive and what responsibility, if any,
would fall on the State to take preventative action? Clause 5 does little to
assuage any fears that the Fixed-term Work Directive would be of limited
use in such circumstances.
Clause 5(1) provides that Member States shall, after consultation with
the social partners, and in the absence of equivalent legal measures to
prevent abuse, introduce in a manner which takes account of the needs of
specific sectors and/or categories of workers one or more of the following
measures:
(a) objective reasons justifying the renewal of such contracts;
(b) the maximum total duration of successive fixed-term employment contracts or
relationships;
(c) the number of renewals of such contracts.
539
See generally, the survey of national law in Volume 15/2 (1999) International Journal
of Comparative Labour Law and Industrial Relations 81209.
540
Clause 5(1).
541
Case C438/99, Jimnez Melgar v Ayuntamiento de Los Barrios [2001] ECR I6915.
For full discussion, see ch 5, pp 16567.
542
Dir 92/85/EEC, OJ 1992, L348/1. See para 45, ibid.

The Framework AgreementsA Qualitative Assessment 289

Discretion is granted to Member States to determine under what conditions
fixed-term contracts shall be regarded as successive and shall be deemed
to be contracts of indefinite duration.543 This is an extremely flexible provision that would, for example, if only (b) is introduced, allow fixed-term
contracts to be renewed for many years without limiting the number of
renewals or providing for objective justification. Therefore, the extent to
which abuse will be prevented is almost entirely dependent upon the
approach taken by Member States, with scope for variations for SMEs and
particular areas where fixed-term contracts are common, such as research
jobs and the holiday trade. As Murray notes, Clause 5 amounts to little
more than a platform for national bargaining around loosely defined
terms.544
Clause 6 provides limited additional rights to information and training.
Employers are obliged to inform fixed-term workers about vacancies in the
establishment or undertaking and must ensure that these workers have the
same opportunities to secure permanent positions as other workers.545 As
far as possible, employers should facilitate access by fixed-term workers to
appropriate training opportunities to enhance their skills, career development and occupational mobility.546 While the main aim of this Clause is
employment promotion, it is perhaps significant that these rights are
stronger than the equivalent provisions in Clause 6 of the Part-time Work
Agreement.
Other provisions in the Framework Agreement ensure that fixed-term
workers are included for information and consultation purposes.547 As with
the Part-time Work Agreement, there are matching provisions allowing for
the maintenance or introduction of more favourable provisions,548 and for
the Framework Agreement to operate without prejudice to any more
specific Community provisions, including equal treatment.549 Clause 8(3) is
a straightforward non-retrogression statement with no scope for qualifications in the light of changing circumstances.550 Finally, Clause 8(4) allows
the national social partners to conclude agreements adapting or complementing the provisions in the Framework Agreement.
The Fixed-term Work Agreement is a more precise measure than the
earlier agreements on Part-time Work and Parental Leave, suggesting a
gradual maturation of this method of negotiating quasi-legislative agreements at Community level. For former Commissioner Flynn this was by
543
544
545
546
547
548
549
550

Clause 5(2).
Murray (1999, Industrial Law Journal) n 525 above at 275.
Clause 6(1).
Clause 6(2).
Clause 7(1).
Clause 8(1).
Clause 8(2).
Cf Clause 6(2) of the Part-time Work Agreement.

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far the most politically sensitive and technically difficult issue551 that the
social partners had tackled in formal negotiations. Certainly it is the case
that there is a huge variation among the Member States, particularly concerning the rules on the length of fixed-term contracts and renewal.552 In
essence, however, the legal effects of the measure are largely limited to the
establishment of the non-discrimination principle with considerable scope
for elaboration at national level.553 For the ETUC, the outcome fell significantly short of their bargaining position which was to secure firm limits
on recourse to fixed-term contracts, on the maximum length of such contracts and the number of renewals.554 For UNICE, this is a balanced agreement that will improve employment perspectives because fixed-term work
is a necessary form of work in flexible labour markets.555 The rather limited
nature of the measure may be explained by the fact that the incidence of
fixed-term contracts across the EU is just 12.2 per cent, with only Spain
exceeding 20 per cent.556 The majority of Member States will have to make
little or no changes to their existing national laws.557
In conclusion, an opportunity to regulate the area of temporary work,
including the most insecure form of agency work, has been missed. In particular, what is lacking is a portability of basic employment and social protection entitlements for temporary workers.558 The sensitivity of this issue
has been highlighted by the failure of the social partners to negotiate an
agreement on temporary agency work within the required time period and
the recent decision of the Commission to pilot its own proposal through
the conventional legislative route.559 Such a measure will need to provide a
higher level of protection because, although the needs of part-time and temporary workers may appear complementary, and indeed many workers are
both, the reality is that temporary workers are faced with, by the very
nature of their employment contracts, greater job insecurity. This is compounded by the fact that there may be concurrent discrimination against
women on the grounds of gender whether they have full-time, part-time,
indefinite or fixed-term contracts. The application of the discrimination test
551

See (1999) 304 European Industrial Relations Review 14 at 15.

See generally (1999, International Journal of Comparative Labour Law and Industrial
Relations) n 539 above.
553
See Murray (1999, Industrial Law Journal) n 525 above at 271.
554
See (1999) 304 European Industrial Relations Review 14 at 14. See also the criticism of
the European Parliaments Committee on Employment and Social Affairs [1999] A40261/99.
555
Ibid at 17.
556
Employment in Europe 1998 (European Commission, Brussels, 1998). Based on
statistics for 1997.
557
See (1999) 304 European Industrial Relations Review 14 at 16. In those Member States
where fixed-term workers have very limited protection the Directive is viewed more positively.
See P Lorber, Regulating Fixed-term Work in the UK: A Positive Step towards Workers Protection? (1999) 15 International Journal of Comparative Labour Law and Industrial Relations 121.
558
See Murray (1999, Industrial Law Journal) n 525 above at 274.
559
For the draft directive, see COM(2002) 149.
552

Conclusion 291
in sex discrimination cases suggests that the extension of nondiscrimination to the fields of part-time and fixed-term work will not be a
panacea for workers facing multi-dimensional discrimination.560 Therefore, as Murray observes,561 the benign references in the Framework Agreement to symmetrical needs between employers and workers in relation to
fixed-term work paint a false picture.

XI CONCLUSION

When the Agreement on Social Policy was terminated on the entry into
force of the Treaty of Amsterdam,562 it had been fully activated, from consultation through to legislation, on just four occasions.563 For those who
had striven for a political compromise to break the social policy impasse at
Maastricht, this was a derisory outcome. In part, this paucity can be
explained by the sheer technical complexity of the process combined with
the operation of the Agreement without prejudice to the mainstream
Treaty provisions. Even allowing for these difficulties, however, greater
reliance on the Agreement on a case by case basis might have been
expected had there been the commensurate political will among the signatory parties to make full use of the wide range of legal bases and legislative procedures available to implement the Social Charter and secure the
overarching objective of economic and social progress which is balanced
and sustainable.
In practice, throughout this transitional period, the Community institutions and the social partners were only prepared to utilise the Agreement
reluctantly and incrementally.564 Moreover, the legislation that emerged,
after lengthy negotiations between the social partners, provided only limited
Community added value in those Member States, frequently a minority,
where the prevailing standards were below the minimum levels prescribed
in the agreements. Such an outcome is hardly surprising when one considers the distance, in terms of representativeness, between the social partners
and the intended beneficiaries of these agreements, a fact compounded by
the gaping deficit in the democratic legitimacy of the whole process. It
would be unfair and, more importantly, inaccurate, however, to blame the
social partners for the minimalism of these agreements when, as the analysis in Section VIII above has demonstrated, the parameters within which
560

Murray (1999, Industrial Law Journal) n 525 above at 275.

Ibid at 274.
562
1 May 1999.
563
Two directives arising from framework agreements (Dir 96/34/EC on Parental Leave, OJ
1996, L145/4; Dir 97/81/EC on Part-time Work, 1998, L14/9); and two directives adopted by
the conventional legislative route (Dir 94/45/EC on European Works Councils, OJ 1994,
L254/64; Dir 97/80/EC on the burden of proof in sex discrimination cases, OJ 1997, L14/16).
564
See Falkner, n 81 above at 11.
561

292 The Treaty on European Union

they were operating had been preordained at both Community and international levels.
In order to understand these quantitative and qualitative shortcomings, we
must conclude by taking cognisance of several more fundamental factors:
1) The Member States preference for monetary union over political union,
and the pillared structure of the new edifice, has served to reinforce
rather than recalibrate the imbalance between the Unions economic and
social objectives. In particular, the limited conception of citizenship and
the absence of a human rights foundation in the TEU have diminished
the potential for the development of a European social citizenship in
place of market citizenship.
2) Subsidiarity has guided the exercise of power at Community level by
creating a presumption that national measures are to be preferred and,
even in areas where the legal bases for Community measures have been
expanded, programmatic activity or soft law should be considered as a
first step and, where binding Community action is deemed necessary, it
should lay down minimum standards with plenty of scope for elaboration by national actors.
3) The UKs opt-out inevitably acted as a brake on progress, as desire to
utilise the Agreement was matched by fear of social dumping, although
in practice it was somewhat futile as the UK was not able to fully insulate itself from the spill over effect of the Agreement.565
4) The Agreement had internal contradictions that belied its packaging by
the Protocol as a mechanism for implementing the Social Charter. In particular, the requirements of diversity and competitiveness, coupled with
the SME clause, anchored the social provisions to the imperatives of the
Communitys economic constitution. Moreover, the exemptions in
Article 2(6) [now 137(6) EC] not only undermined the fulfilment of the
Social Charters cherished objectives, but also, served to strip bare the
pretence that the social dialogue is a form of collective bargaining in
the absence of the countervailing power that is an essential precondition
for balanced industrial rule-making.
5) Finally, as we shall discover in the next chapter, Europes global competitiveness plummeted in the period between Maastricht and Amsterdam and the objective of employment promotion emerged as the Unions
pre-eminent social policy ambition subsuming all other priorities and
leading to, first, a questioning and, ultimately, a reshaping of the European social model.
565
See Brinkmann, n 47 above at 260; McGlynn, n 64 above at 60. For example, in the
case of Dir 94/45/EC on European Works Councils (EWCs), OJ 1994, L254/64, 58 out of the
first 386 agreements to establish EWCs or equivalent information and consultation bodies
were signed by British multinationals. See Barnard, EC Employment Law, n 243 above,
p 535.

7
From Maastricht to Amsterdam
Reshaping the European Social
Model
I SEARCHING FOR EUROPES SOCIAL SOUL

RTICLE N2 OF the TEU blandly provided for an Intergovernmental Conference (IGC) to be convened in 1996 to revise the Treaty
in accordance with its objectives. This timetable, already tight when
the Treaty was exhaustively negotiated at Maastricht in December 1991,
was even more challenging by the time it belatedly entered into force in
November 1993. Almost immediately, the Union embarked on an intensive
period of fin de sicle introspection. Green papers and white papers
abounded, committees of the wise and expert groups were established, and
an aptly named Reflection Group was appointed to examine and elaborate ideas for Treaty changes and other possible improvements in a spirit
of democracy and openness.1 By December 1995, when the Reflection
Groups Report was submitted to the Member States,2 its focus had been
sharpened by a deepening legitimacy crisis,3 a steep decline in Europes
global competitiveness and, above all, by escalating levels of unemployment. The Report recommended making the Union more relevant to its citizens, improving its efficiency and democracy, preparing it for enlargement,
and giving it greater capacity for external action. The Presidency Conclusions at the Madrid European Council contained a probing, almost physiological, self-examination of the Unions ills. In their opening paragraph the
Member States humbly confessed that:4
1
Presidency Conclusions of the Corfu European Council, June 1994. Bull EU 6/94, I.25. The
Reflection Group was comprised of personal representatives of the Member States with two
observers from the European Parliament. The Spanish representative Carlos Westendorp chaired
the Group. For a critique, see F Dehousse, The IGC Process and Results in D OKeeffe and P
Twomey (eds) Legal Issues of the Amsterdam Treaty (Hart, Oxford, 1999) 93108.
2
The Reflection Group Report, 5 Dec 1995, SN 520/95 (REFLEX 21).
3
See D Chalmers, European Union Law Volume One: Law and EU Government
(Dartmouth, Aldershot, 1998) p 66.
4
Madrid European Council, Dec 1995. Bull EU 12/95, I.98. Emphasis added.

294 From Maastricht to Amsterdam

Men and women of Europe today, more than ever, feel the need for a common
project. And, yet, for a growing number of Europeans, the rationale for Community integration is not self-evident. This paradox is a first challenge.

For Europes leaders it was a deeply perplexing fact that, in their view,
public disaffection with the European integration project was growing in
inverse proportion to the Unions success in contributing to an unprecedented period of peace and prosperity.5 The answer to this quandary was
somehow to find a means to bring the Union closer to its citizens by nurturing a sense of collective identification with Europe as a socio-political
unit based on shared values.6
In the contested field of European social policy, however, the demand for
a convincing and truly cohesive rationale for integration was, if anything,
even more intense and challenging. Common social values were needed
to underpin a European social policy that had been constructed upon economic foundations.7 Market integration alone could not sustain social
policy in the absence of mutually shared criteria for achieving social justice.8
In the age of globalisation and flexible labour markets, the challenge for
the Union was to pre-empt the emergence of a dystopian neo-Hobbesian
order9 where employment law might be dismantled layer by layer.10 As the
Commission poignantly asked in its 1993 Green Paper on Social Policy,
what sort of a society do Europeans want?11
Post-Maastricht, Europes struggle for its social self12 formed the backdrop for a fundamental reappraisal of the parameters of Community social
policy and its essential purpose. Within a period of nine months after the
ratification of the TEU, the Commissions Directorate General on Employment, Industrial Relations and Social Affairs had published a Green Paper,
intended to stimulate a wide-ranging and intensive debate on the future of
5

Madrid European Council, Dec 1995. Bull EU 12/95, I.98. Emphasis added.
See D Obradovic, Policy Legitimacy and the European Union (1996) 34 Journal of
Common Market Studies 191 at 208. For a stimulating discussion of the dilemma of
European identity, see P Allott, The Concept of European Union (1999) 2 Cambridge
Yearbook of European Legal Studies 31.
7
See B Hepple, Social Values and European Law (1995) Current Legal Problems 39 at
40; and M Kleinman and D Piachaud, European Social Policy: Conceptions and Choices
(1993) 3 Journal of European Social Policy 1 at 3.
8
See Hepple, ibid at 43; and M Poiares Maduro, Europes Social Self: The Sickness Unto
Death in J Shaw (ed) Social Law and Policy in an Evolving European Union (Hart, Oxford,
2000) 32549 at 331.
9
See M Rhodes, Globalisation, Labour Markets and Welfare States: A Future of Competitive Corporatism? EUI Working Paper No 97/36 (EUI, Florence, 1997) p 2. Hobbes
(15881679) classically depicted a world where there was: No arts; no letters; no society; and
which, worst of all, continual fear and danger of violent death; and the life of man, solitary,
poor, nasty, brutish and short. See The Concise Oxford Dictionary of Quotations, 2nd edn
(OUP, Oxford, 1981) p 120.
10
For an insightful analysis of the dangers of a refeudalisation of European society, see A
Supiot, The Dogmatic Foundations of the Market (2000) 29 Industrial Law Journal 321 at
3234.
11
Green Paper on European Social Policy: Options for the Union, COM(93) 551, p 14.
12
See Poiares Maduro, n 8 above.
6

Promoting Employment 295

European social policy,13 and a White Paper to respond to that debate by
setting out the means by which the ideal of a European social model was
to be preserved and developed into the 21st Century.14 Sandwiched in
between was a searing analysis of the relative global weakness of the
European economies in the form of the Commissions landmark White
Paper on Growth, Competitiveness, Employment.15
These publications triggered and shaped an ongoing dynamic and interactive discourse on the content and direction of Europes economic and
social values. Indeed, within three years, the Commission had published a
medium-term Social Action Programme (SAP)16 and a Green Paper on the
Organisation of Work.17 Over the same period the Council adopted a Resolution on Union Social Policy,18 a Decision on an Action Programme on Equal
Opportunities for Men and Women19 and launched the European Employment Strategy by publishing a series of priorities for job creation directed at
the Member States.20 Meanwhile, an ad hoc Comit des Sages proposed a
European bill of rights encompassing indivisible civic and social rights.21
This Chapter will draw on these documents and identify five emerging themes
that have refashioned European social policy over the last decade,
specifically:
(i)
(ii)
(iii)
(iv)
(v)

promoting employment;
reorganising work;
combating social exclusion;
mainstreaming gender equality; and
consolidation, compliance and enforcement of social legislation.
II PROMOTING EMPLOYMENT

(1) Growth, Competitiveness, Employment

Why this White Paper?
The one and only reason is unemployment. We are aware of its scale, and of its
consequences too. The difficult thing, as experience has taught us, is knowing how
to tackle it.
13
COM(93) 551. For comment, see J Kenner, European Social PolicyNew Directions
(1994) 10 International Journal of Comparative Labour Law and Industrial Relations 56.
14
European Social Policy: A Way Forward for the Union, COM(94) 333, p 7.
15
Growth, Competitiveness, Employment: The Challenges and Ways Forward into the 21st
Century, Bulletin of the European Communities Supplement 6/93.
16
Medium Term Social Action Programme 19951997, COM(95) 134.
17
Partnership for a New Organisation of Work, Bulletin of the European Union Supplement 4/97. See also COM(97) 127.
18
Council Resolution on certain aspects for a European Union social policy: a contribution
to economic and social convergence in the Union, OJ 1994, C368/3.
19
Decision 95/593/EC on a medium-term Community action programme on equal opportunities for men and women (1996 to 2000) OJ 1995, L335/37.
20
Presidency Conclusions, Essen European Council, 9/10 Dec 1994.
21
For a Europe of Civic and Social Rights (European Commission, Luxembourg, 1996).

296

From Maastricht to Amsterdam

With this concise but sharp rhetorical exchange the Commission launched
its 1993 White Paper on Growth, Competitiveness, Employment: The
Challenges and Ways Forward into the 21st Century.22 Whereas the
Communitys outlook had traditionally been introverted, concerned with
integration and the establishment of an internal market, the Growth
White Paper represented a turning point for a new Union that was in a
hurry to assert itself as a global player. As Sciarra has noted,23 the global
bearing of unemployment and the impossibility of conceiving of growth
for Europe without looking beyond its borders is the philosophy that
inspired the White Paper. Hence, the Commissions first task was to snuff
out complacency, although it should be noted that, as in 1980,24
the Economic and Social Committee (ECOSOC), in its Opinion on Employment in Europe,25 had already sounded the warning bells. Radical rethinking was required to balance the desire to remain faithful to the ideals which
have come to characterise and represent Europe while finding a new
synthesis of the aims pursued by societywork as a factor of social
integration, equality of opportunityand the requirements of the
economycompetitiveness and job creation.26 Moreover, by placing
the promotion of employment at the top of the Unions global agenda, the
Commission was also subverting the widely perceived dichotomy between
employment protection and employment creation objectives within
European social policy.
Between 1991 and 1993 there had been a reduction of two million in
total employment in the Community, the first ever recorded decline. Unemployment levels, endemic in the Community since the 1970s, but steady at
12 million by the late 1980s, had now reached 17 million with a projected
rise to 20 million in 1994, comprising 12 per cent of the labour force.27 The
growth of cyclical, structural and technological unemployment was now
recognised as both a consequence and a cause of Europes declining global
competitiveness.28 The employment rate in the EU stood at 60 per cent compared with 7075 per cent in the US and Japan, the Unions global competitors. To return unemployment rates to 1980s levels by 2000 would

22

Bulletin of the European Communities Supplement 6/93, p 9.

S Sciarra, How Global is Labour Law? The Perspective of Social Rights in the
European Union, EUI Working Paper No 96/6 (EUI, Florence, 1996) p 8.
24
See the introduction of ch 3.
25
OJ 1993, C161/34. ECOSOC warned that unemployment threatened to become the key
problem of the 1990s and to destabilise Europes democratic structures (para 1.1). Reference
was made to an earlier Council Resolution of 21 Dec 1992, OJ 1993, C49/3, which acknowledged the need to tackle the serious and deteriorating situation concerning unemployment in
the Community but did not actually lead to any new progress (para 1.2.4).
26
Bulletin of the European Communities Supplement 6/93, p 3.
27
Reported to the Copenhagen European Council, 21/22 June 1993. See further, Employment in Europe 1993, COM(93) 341.
28
Bulletin of the European Communities Supplement 6/93, pp 1011.
23

Promoting Employment 297

require the creation of at least 15 million new jobs.29 The Growth White
Paper also pointed to a relative decline over 20 years in the growth of the
European economy from around 4 per cent to 2.5 per cent a year; a fall in
the investment ratio of five percentage points; and a worsening of Europes
competitive position in relation to the US and Japan as regards export share,
research and development and launching new products.30 Moreover, any
return to growth needed to be employment-intensive for, as ECOSOC had
warned, Europes existing production system based on a market economy
open to international competition was likely to be able to absorb only part
of the pool of unemployed.31
How then to tackle mass unemployment? Was there a route back to full
employment and, if so, was such a path compatible with both higher social
standards and stronger global competitiveness? The established wisdom,
derived from a highly influential report of the OECD,32 was that high unemployment and the lack of job creation were caused by rigidities in the
labour market. Rules deemed restrictive and hidebound would be likely
to discourage employers from taking on new workers, particularly young
ones.33 Such rigidities could only be removed by systematic deregulation of
employment law and modernisation of social protection systems to create
more flexibility in order to attract entrepreneurs into the Single Market.34
From this perspective, flexibility is solely concerned with the labour market
from the employers standpoint and the employees distinct needs for flexibility are overlooked.35 Moreover, other forms of flexibility: capital; managerial expertise; or technological ability, are not taken into account.36
Instead employers would seek to utilise a peripheral workforce of parttime, temporary and, increasingly, externalised sub-contracted workers.37
Not surprisingly, the narrow view that flexibility is a byword for labour
29
See Commission Recommendation for the Broad Guidelines of the Economic Policies of
the Member States and of the Community, COM(93) 629.
30
Bulletin of the European Communities Supplement 6/93, p 9.
31
Opinion on growth, competitiveness and employment: medium-term considerations.
Priority for employment within the context of the European socio-economic system, OJ
1993, C352/9, para 10.2.
32
Labour Market Flexibility. Report by a High Level Group of Experts (OECD, Paris,
1986). See E Szyszczak, The Evolving European Employment Strategy in Shaw, n 8 above,
197220 at 2001.
33
See ECOSOC Opinion on growth, competitiveness and employment, OJ 1993, C352/9,
para 4.3.
34
See H Siebert, Labor Rigidities: at the Root of Unemployment in Europe (1997) 11
Journal of Economic Perspectives 43. For a critique, see S Deakin and H Reed, The
Contested Meaning of Labour Market Flexibility: Economic Theory and the Discourse of
European Integration in Shaw, n 8 above, 7199.
35
See G More, The Acquired Rights Directive: Frustrating or Facilitating Labour Market
Flexibility? in J Shaw and G More (eds) New Legal Dynamics of European Union
(Clarendon Press, Oxford, 1995) 12945 at 1378.
36
Ibid.
37
Ibid.

298

From Maastricht to Amsterdam

market deregulation was strongly supported by European employers

organisations.38 Ominously, ECOSOC, in an Opinion issued in advance of
the White Paper,39 leaned towards deregulation, or at least amending social
laws so as to permit the more efficient organisation of production processes
and services,40 although the removal of restrictions must not unacceptably
impair the legal situation of workers.41
An alternative view, advanced by Deakin and Wilkinson,42 is that transnational social standards dynamically interact with economic integration to
produce a continuous upwards movement in social and economic outcomes.
Labour markets and social welfare systems should be adapted rather than
deregulated through active measures designed to ensure macroeconomic
stability and high employment levels.43 This would avoid the trap of a low
paid, low skilled and relatively under-productive labour market as typified
by the US,44 a cycle that elements within the Clinton administration were
seeking to break.45 Flexibility, in this context, is to be achieved through
an active labour market policy encompassing enhanced vocational training, assisted job searches and targeted public expenditure and subsidies to
enterprises, encouraging employers to retain and take on workers.46 An
active labour market policy is an antidote for passive protectionism47 that
could help to overcome rigidities, real or imaginary, by creating a climate
for employment-intensive growth where social policy, far from being an
obstacle to job creation and the operation of the labour market, serves as
an input into economic development.48 Therefore, a flexible economy
would be in a better position to create jobs and wealth, and to procure the
38
See for example, the views of employers expressed in ECOSOCs Opinion on growth,
competitiveness and employment, OJ 1993, C352/9. ECOSOC noted that: employers are dismayed at the way in which industry has been increasingly subjected to often burdensome and
sometimes unjustified charges, and hamstrung by constraints of all kinds. Restrictive rules
and regulations have prevented them from organising their production processes efficiently
(and some of these regulations come from the EC) . . . Employers therefore call for early action
to free firms from these constraints (paras 2.22.3).
39
Ibid.
40
Ibid para 2.4.
41
Ibid para 2.6. Emphasis added.
42
See S Deakin and F Wilkinson, Rights vs Efficiency? The Economic Case for Transnational Labour Standards (1994) 23 Industrial Law Journal 289 at 308.
43
See Rhodes, n 9 above at 5.
44
See Deakin and Wilkinson, n 42 above at 298.
45
See in particular the policies put forward by Robert Reich, Clintons Labor Secretary: R
Reich, The Work of Nations (Vintage, London, 1992); and R Reich, The Next American Frontier (Penguin, London, 1984). Discussed by S Sciarra, Social Values and the Multiple Sources
of European Social Law (1995) 1 European Law Journal 60 at 736.
46
See Deakin and Reed, n 34 above at 834.
47
See A Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe (OUP, Oxford, 2001) p 199. Supiot argues that it is no longer possible to manage predictable risks and therefore the focus must be to manage all forms of uncertainty by offering
freedom of action and a range of choices for employers and workers.
48
See Deakin and Reed, n 34 above at 83.

Promoting Employment 299

means for greater security than a rigid economy.49 In other words, there is
mutual dependency between flexibility and security, a theme later developed
in the 1997 Green Paper on the Organisation of Work.50
In the Growth White Paper the Commission eschewed ideologically
driven miracle cures such as protectionism, public spending sprees, reductions in working hours or drastic cuts in wages to align labour costs with
those of competitors in developing countries.51 While accepting that the
unemployment level was, in part, a legacy of the depressed rate of economic
growth and rigidities in the labour market,52 the Commission avoided
repeating the explicitly deregulatory language used by ECOSOC and sought
instead to reconcile both sides of the flexibility debate by targeting policies
aimed at:53
. . . a thoroughgoing reform of the labour market, with the introduction of greater
flexibility in the organisation of work and the distribution of working time, reduced
labour costs, a higher level of skills, and pro-active labour market policies.

Such an overhaul of the labour market, while it would address the issue
of direct and indirect labour costs,54 would be focused mainly on improving education and training and reviewing the way work is organised. For
example, steps could be taken to remove obstacles that make it more difficult or costly to employ part-time or fixed-term workers, an approach later
taken up by the social partners when negotiating agreements covering these
areas. At the same time, social protection systems should be maintained and
priority given to combating social exclusion and unemployment among
young people and the long-term unemployed.55 Action was also required
to strengthen equal opportunities policies for men and women in
employment.56
Labour flexibility needed to be examined from two angles.57 First, external flexibility to make it possible for more unemployed people to meet the
identified requirements of business. This would involve improvements to
geographical mobility, greater vocational training and sometimes radical
initiatives tested in several Member States, such as reducing unemployment
benefits, cutting taxes for low paid workers and making it easier to lay off

49
Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe,
n 47 above, p 191.
50
Bulletin of the European Union Supplement 4/97. For an earlier reference, see the Commissions European Pact of Confidence for Employment, Action for Employment in Europe,
COM(96) 485, para 3.13.
51
Bulletin of the European Communities Supplement 6/93, p 9.
52
Ibid p 127.
53
Ibid p 124.
54
Ibid pp 1301.
55
Ibid p 124.
56
Ibid p 134.
57
Ibid p 17.

300 From Maastricht to Amsterdam

workers on unlimited contracts.58 Secondly, internal flexibility arising from
the optimum management of a companys human resources,59 or what
would be later described as the flexible firm.60 The aim was to adjust
the workforce without making people redundant wherever this can be
avoided.61 For example, companies might improve internal flexibility by
means of staff versatility, the integrated organisation of work, flexible
working hours and performance-related pay.62 Hourly wage increases would
need to be kept below the growth of productivity.63 Both aspects of flexibility required decentralisation and the involvement of the social partners.64
Pro-active labour market measures were presented as an alternative to
the traditional inactive approach that treats the unemployed as passive
recipients of benefit with little to occupy their time.65 The catalyst for change
would be to reform education and training systems.66 This would involve
job training and placements together with an overhaul of employment
services to meet these objectives.67 Anyone leaving the school system before the age of 18 without a meaningful vocational qualification would
be entitled to a Youthstart in the form of a training and employment
experience.68
Reforming the labour market, as envisaged by the Growth White Paper,
would involve a fundamental shift in the orientation of employment law
and social policy in two ways. First, employment law and social protection
systems that had been designed to guarantee stability would now have to
be adapted to create flexibility.69 Secondly, the European social model
which had been tailored towards the standard employment relationship70where employees, usually male, typically work full-time on a permanent basis for the same concern for their entire careerwould have
to be reshaped to reflect the increase in non-standard employment
predominantly female, part-time, fixed-term and temporary work. Rather,
European social policy had to transcend such outmoded distinctions and
58

Bulletin of the European Communities Supplement 6/93, p 9.

Ibid.
See Partnership for a New Organisation of Work, Bulletin of the European Union
Supplement 4/97, paras 1819.
61
Bulletin of the European Communities Supplement 6/93, p 17.
62
Ibid.
63
Ibid p 130.
64
Ibid pp 1718.
65
Ibid pp 1819.
66
Ibid pp 11722.
67
Ibid pp 1819.
68
Ibid p 19. For a comprehensive discussion of this area, see J Shaw, From the Margins
to the Centre: Education and Training Law and Policy in P Craig and G de Brca (eds) The
Evolution of EU Law (OUP, Oxford, 1999) 55595.
69
See Sciarra, How Global is Labour Law? The Perspective of Social Rights in the
European Union, n 23 above, p 4.
70
See U Mckenberger, Non-standard Forms of Work and the Role of Changes in Labour
and Social Security Regulation (1989) 17 International Journal of the Sociology of Law 381.
59
60

Promoting Employment 301

other traditional bipolarities such as the differentiation between working
time and leisure time.71 As Whiteford observes,72 the sub-text was the dismantling of the frameworks built up in the past for the legal protection of
workersor at least standard workersbut there was no certainty or
clear consensus about the shape of Union social policy in the future.

(2) The Green Paper on European Social Policy

Many of these themes had already emerged in the preceding Green Paper
on European Social Policy of November 1993.73 In his introduction, former
Commissioner Flynn, aware of the broad thrust of the proposals to be presented in the Growth White Paper, revealed the essentially defensive standpoint of the Directorate General for Employment, Industrial Relations and
Social Affairs when he explained that:74
The premise at the heart of this Green Paper is that the next phase in the development of European social policy cannot be based on the idea that social progress
must go into retreat in order for economic competitiveness to recover.

Flynn sought to steer the debate towards solutions that would enable economic success and high social standards to go hand in hand. Europes social
policy was influenced by the operation of free markets, especially free
labour markets, and by the development of social ground rules. The
Commission identified two important elements in this concept:75
. . . on the one hand a defensive mechanism to ensure that there is a minimum floor
below which social standards should not fall in certain key areas, and on the other
hand a more pro-active concept aimed at ensuring convergence through social
progress.

While acknowledging that the social consensus that lay behind this statement was now open to question, the Commission proceeded to set out its
stall as follows:76
Although it is a fact that in times of fierce competition enterprises need flexibility
and that high unemployment reduces the bargaining power of workers, competition within the Community on the basis of unacceptably low social standards, rather
than productivity of enterprises, will undermine the economic objectives of the
Union.

71

See Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe, n 47 above, pp 5893.
72
See E Whiteford, W(h)ither Social Policy? in Shaw and More, n 35 above, 11128 at 126.
73
COM(93) 551.
74
Ibid p 6.
75
Ibid p 59. Emphasis added.
76
Ibid pp 5960. Emphasis added.

302 From Maastricht to Amsterdam

Therefore, although the Commission was endorsing high social standards
as an integral part of a competitive model of economic development,77 the
driving motivation for this assertion was to equate low social standards
with unfair competition and warn against the threat of a deregulatory race
to the bottom,78 rather than to present a case for common social values distinct from the integration process. This essentially negative approach was
firmly reinforced by the ensuing White Paper on European Social Policy
where the Commission, echoing the Ohlin Report,79 stated that:80
The establishment of a framework of basic minimum standards . . . provides a
bulwark against using low social standards as an instrument of unfair economic
competition and protection against reducing social standards to gain competitiveness, and is also an expression of the political will to maintain the momentum of
social progress.

In the Green Paper, the Commission, recognising that changes were taking
place that were comparable with the industrial revolution,81 suggested a
range of responses to technological and structural change; including: lifelong education and training, greater labour market adaptability to match
jobs with skills; more wage variety to reflect economic conditions; and
greater incentives to work through more effective targeting of social benefits. The Commission also highlighted other factors affecting the role of
work in society and the future of the welfare state:82 rapid technological
progress; the demise of the Fordist model of production;83 changes in
family structures; the massive entry of women into the labour market; and
demographic trends, notably the ageing of the population.84 Ultimately this
77
COM(93) 551, p 60. See also the Commissions Explanatory Memorandum on its
Opinion on an Equitable Wage which sought to encourage firms to replace low-wage, lowproductivity employment with high-wage, high-productivity employment, COM(93) 388.
See C Barnard and S Deakin, Social Policy in Search of a Role: Integration, Cohesion and
Citizenship in A Caiger and D Floudas (eds) 1996 Onwards: Lowering the Barriers Further
(Wiley, Chichester, 1996) 17795 at 186.
78
This expression can be traced back to Judge Brandeis in Ligett v Lee [1933] US 557.
Judge Brandeis used the phrase to describe the competition between states to reduce regulatory requirements so as to attract business. See B Hepple, New Approaches to International
Labour Regulation (1997) 26 Industrial Law Journal 353 at 3556. See generally, C Barnard,
Social Dumping and the Race to the Bottom: Some Lessons for the EU from Delaware (2000)
25 European Law Review 57.
79
Social Aspects of European Economic Co-operation (1956) 74 International Labour
Review 99. See ch 1 for discussion.
80
COM(94) 333. Introduction, para 19.
81
COM(93) 551, p 19.
82
Ibid pp 1922.
83
Supiot describes this concept as, typically, large industrial businesses engaging in mass
production based on a narrow specialisation of jobs and competencies and pyramidal management (hierarchical structure of labour, separation between product design and manufacture). See Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe, n 47 above, p 1.
84
The Commission estimated that by 2020 the ratio of people of age 65 or older to those
in working age, ie 1564 would increase by about 50% raising implications for the costs on
employed workers to guarantee maintenance of pension levels and universal health care.

Promoting Employment 303

would lead to a realignment of the functions of the State, the enterprise and
the family.85 Most importantly, the Green Paper, while it made a general
case for social justice and equal opportunity, stressed the need for a new
paradigm of Union social policy beyond the world of work, a theme taken
up in the White Paper when it was published in July 1994.

(3) The White Paper on European Social Policy

The White Paper sought to address 65 questions raised in the Green Paper86
by taking account of extensive consultations contained in a separate technical annex. Whilst the Commission sought to respond to the broad themes
of the Green Paper, its new document was more cautious, reflecting the
influence of the intervening Growth White Paper and the publication of
annual Economic Guidelines by the Council intended to co-ordinate the
economic policies of the Member States.87 The Guidelines for 1993 had
stressed price and exchange rate stability as well as pay moderation as
methods of stimulating job creation. Emphasis was also placed on controlling indirect labour costs.88
Dispensing with any reference to social justice, the Commission sought
to establish a consensus around a synergy of shared values which form the
basis of the European social model encapsulated in the Social Charter.89
These included:90
. . . democracy and individual rights, free collective bargaining, the market economy,
equality of opportunity for all and social welfare and solidarity.

The purpose of the White Paper was to preserve and develop the European
social model by developing guiding principles and applying a range of
instruments for action.91 The Commissions rhetoric was coded. By unveiling the concept of a European social model, or perhaps more accurately,
a north European social model,92 the Commission was seeking to identify
85

COM(93) 551, p 19.

Ibid pp 749.
87
Council Recommendation 94/7/EC on the broad guidelines of the economic policies of the
Member States and of the Community, OJ 1994, L7/9. The guidelines, issued in accordance with
Art 103(2) [now 99(2)] EC, are intended to co-ordinate the economic policies of the Member
States as a matter of common concern. The Council Recommendation broadly echoed the
themes in the Growth White Paper while placing special emphasis on reducing the indirect cost
of labour with the objective of promoting the twin aims of job-creation in services responding
to societys new needs and pay moderation to save jobs in sectors exposed to international
competition by curbing the replacement of labour by capital and the relocation of activity.
88
Ibid p 11. See Sciarra (1995, European Law Journal) n 45 above at 64.
89
COM(94) 333. Introduction, para 3.
90
Ibid.
91
Ibid. Introduction.
92
See Kleinman and Piachaud, n 7 above at 12. For example, Szyszczak notes that government expenditure on social welfare is one-third of GDP in Sweden and only one-sixth in
Portugal. See E Szyszczak, EC Labour Law (Longman, Harlow, 2000) p 165.
86

304

From Maastricht to Amsterdam

the confines within which the Community actors were prepared to operate.
In other words, the European social model was being presented both positively, as an assertion of Europes collective social identity,93 and negatively,
as an alternative to the politically unacceptable models of the US and
Japan.94 The crux of the matter was somehow to find a policy mix and
modus operandi that would enable Europe to maintain a social consensus
and yet be able to adapt its social policies through greater flexibility in the
labour market and close the employment and competitiveness gap with its
global competitors. By investing in a world-class labour force95 it would
still be possible to encourage high standards in a competitive Europe.96
Sciarra explains the evolution of employment law in the following terms:97
Its new genetic structure is produced by the combination of the old protective guarantees with the new measures aimed at integrating in the labour market. Labour
law in the European context does notand could notpursue an abstract idea of
solidarity among job holders; it should rather be thought of as a new tool to favour
and create occupations, differentiatingwhen necessaryindividual and collective
guarantees, and yet entitling all employees to basic essential rights . . .

The new structure would not involve exchanging social rights for the needs
of business but modulating them in accordance with the needs of workers
for flexibility.98 With this task in mind, the Commission presented four
guiding principles and objectives for the future role of the Union. First,
employment was the key to social and economic integration. Without new
jobs, high social standards and the capacity to compete in world markets
would not be reconcilable.99 Secondly, competitiveness and solidarity were
two sides of the same coin. Maintenance of social standards would be
dependant on continuing productivity gains.100 Thirdly, the Commission
extended the notion of convergence from macroeconomic policy to employment policy by linking convergence to diversity. It followed that total harmonisation of social policies would not be an objective of the Union.
However, in a tilt towards a programmatic soft law oriented approach, the
Commission recommended the convergence of goals and policies by fixing
common objectives that would permit the coexistence of different national
systems progressing in harmony towards the fundamental objectives of the
Union.101 Fourthly, there should be a level playing field of common minimum
93
For discussion on the ideals of social models from More to Rousseau, see Allott, n 6
above at 523.
94
See Szyszczak, EC Labour Law, n 92 above, pp 1645.
95
COM(94) 333. Ch II.
96
Ibid. Ch III.
97
Sciarra (1995, European Law Journal) n 45 above at 66. Emphasis contained in the
original.
98
Ibid at 67.
99
COM(94) 333. Introduction, para 16.
100
Ibid para 17.
101
Ibid para 18.

Promoting Employment 305

standards that would take account of the relative economic strength of the
different Member States. Minimum standards should not over-stretch the
economically weaker Member States, and they should not prevent the more
developed Member States from implementing higher standards.102
Post-1994 these four principles have guided the development of
Community employment law and social policy. In each case the achievement
of a high level of employment and social protection in line with the
objective in Article 2 EC, has provided the rationale for Community action.
The emphasis was now on social goals to be achieved through technocratic
support and soft law rather than social rights furthered by harmonisation.103
In order to reinforce this new approach the Council adopted a Resolution
on Union Social Policy in December 1994.104

(4) The Council Resolution on Social Policy

The Council Resolution sought to merge three strands of policy drawn from
the Commissions documents. First, the Council envisaged the further development of the social dimension and the strengthening of the role of the
two sides of industry as an essential precondition for combining market
freedom and social balance.105 Secondly, emphasising the need for strong
and sustainable growth, the Council sought to improve the efficiency of
the labour market by means of specific measures to facilitate renewed
growth that would create as many jobs as possible.106 Thirdly, the Unions
international competitiveness had to be strengthened so that in the framework of firm competition as regards the location of undertakings any
economic success would be used for the purpose of sustainable social
progress.107
In order to reconcile these policy strands, the Council resolved that proposals for minimum standards in social legislation would have to include
an assessment of the impact on employment and on small and mediumsized enterprises.108 Progress would be at a cautious pace, with an emphasis on specific proposals designed to build up instrumentally a core of
minimum standards in a pragmatic and flexible manner to facilitate a
gradual convergence, respecting both the economic capabilities of Member
102

Ibid para 19.

See H Cullen and E Campbell, The future of social policy-making in the European
Union in P Craig and C Harlow (eds) Lawmaking in the European Union (Kluwer, London,
1998) 26284 at 263.
104
Council Resolution of 6 Dec 1994 on certain aspects for a European Union social policy:
a contribution to economic and social convergence in the Union, OJ 1994, C368/3.
105
Ibid point 9.
106
Ibid.
107
Ibid.
108
Ibid point 14.
103

306 From Maastricht to Amsterdam

States and helping to meet the expectations of workers, while calming fears
about social dismantling and dumping in the Union.109 Convergence rather
than unification of social systems was to be preferred, not just because of
the principle of subsidiarity, but also because the latter would reduce the
chances of disadvantaged regions in the competition for location.110 The
Council aimed to achieve this gradual convergence by aligning national
goals with due regard for the economic strength of the Member States.111
(5) The Essen Process
Within a week of the adoption of the Council Resolution, the European
Council met at Essen and sought to apply the notion of gradual convergence by introducing an experimental process to monitor and co-ordinate
employment policies in the Member States, intensifying activities to
exchange information and promote best practice.112 In particular, a series of
five key areas for job creation were identified based on active labour market
measures. The priorities were set out as follows:
(1) Improving employment opportunities for the labour force by promoting investment in vocational training.113
(2) Increasing the employment-intensiveness of growth.114
(3) Reducing non-wage labour costs extensively enough to ensure that there
is a noticeable effect on decisions concerning the taking on of employees and in particular of unqualified employees.115
(4) Improving the effectiveness of labour-market policy.116
109
Council Resolution of 6 Dec 1994 on certain aspects for a European Union social policy:
a contribution to economic and social convergence in the Union, OJ 1994, C368/3, points 10
and 11.
110
Ibid point 18.
111
Ibid point 19.
112
Presidency Conclusions, Essen European Council, 9/10 Dec 1994. Bull EU 12/94.
113
To that end a key role would fall to the acquisition of vocational qualifications, particularly by young people. As many people as possible should receive initial and further training
which enables them through life-long learning to adapt to changes brought about by technological progress, in order to reduce the risk of losing their employment.
114
In particular through: more flexible organisation of work in a way which fulfils both the
wishes of employees and the requirements of competition; a wage policy which encourages
job-creating investments and in the present situation requires moderate wage agreements below
increases in productivity; and, finally, the promotion of initiatives, particularly at regional and
local level, that create jobs which take account of new requirements, e.g. in the environmental and social services spheres.
115
The problem of non-wage labour costs could only be resolved through a joint effort by
the economic sector, trade unions and the political sphere.
116
The effectiveness of employment policy would be increased by avoiding practices, which
are detrimental to readiness to work, and by moving from a passive to an active labour market
policy. The individual incentive to continue seeking employment on the general labour market
must remain. Particular account must be taken of this when working out income-support measures. The need for and efficiency of the instruments of labour-market policy would be assessed
at regular intervals.

Promoting Employment 307

(5) Improving measures to help groups which are particularly hard hit by
unemployment.117
The European Council, having set out these detailed priorities, proceeded
to establish a co-ordinated European Employment Strategy (EES) albeit
without specific Treaty powers and by means of non-binding legal instruments. The idea behind Essen was based on both horizontal and vertical
conceptions of interdependence. First, at the Union level, macroeconomic
and employment policy priorities had to be reconciled if the Unions strategic priorities for global economic competitiveness and internal cohesion
were to be fulfilled. For example, attempts were swiftly made to reconcile
the Economic Guidelines with the Essen priorities to help overcome the
danger of a two track approach arising from any conflict with the EMU
convergence criteria.118 Second, in an increasingly integrated European
economy, there would be greater interdependence between national and
local actors,119 to the extent that the employment policies of one state would
be increasingly the common concern of all120a point graphically demonstrated by the Hoover affair.121
Under the machinery of the emergent EES, each Member State was made
responsible for transposing the key areas of action into their individual
employment policies by producing a multi-annual employment programme
having regard to the specific features of their economic and social situation.122 Progress was to be reported annually to the Commission and the
Councils responsible for Employment and Social Affairs and Economic and
Financial Affairs. In order to promote best practice, a benchmarking exercise was conducted focusing on long-term unemployment, youth unemployment and equal opportunities. This strategy was developed by way of
joint reports on the employment situation from the Commission and the
Council to successive end of year summits in Madrid and Dublin.123 The
Essen process was designed as an operational means for the Member States
117
In particular: helping young people, especially school leavers who have virtually no
qualifications, by offering them either employment or training; fighting against long-term
unemployment must be a major aspect of labour-market policy; varying labour-market policy
measures are necessary according to the very varied groups and requirements of the long-term
unemployed; and special attention should be paid to the difficult situation of unemployed
women and older employees.
118
See European Commission, Follow-up to the Essen European Council on Employment,
COM(95) 74, para 5. For discussion on the broader social policy implications of the convergence criteria, see T Hervey, European Social Law and Policy (Longman, Harlow, 1998)
pp 2930.
119
See W Streeck, Neo-Voluntarism: A New European Social Policy Regime? (1995) 1
European Law Journal 31 at 545.
120
See the later reference to promoting employment as a common concern in Art 126(2)
EC, introduced by the Treaty of Amsterdam.
121
See p 224 above.
122
COM(95) 74, para 2.
123
Dec 1995 and Dec 1996 respectively.

308

From Maastricht to Amsterdam

to develop, monitor, assess and report on their employment policies within

the framework of an integrated strategy agreed by the European Council.124
The Commissions role was to monitor and report rather than develop
policy.
Essen represented a technocratic alternative to harmonisation driven by
the European Council. After Essen, the initiative was firmly with the
European Council. This top-down but multi-level approach was indicative
of the political rather than legal orientation of employment policy125 and
was to provide a blueprint for the Employment Guidelines, essentially a
reiteration of the five priorities, and the associated reporting, monitoring
and surveillance procedures of the EES later formalised in the Amsterdam
Employment Title.126
The Essen process was accompanied by a raft of other activities and
flanking policies promoted in the Social Policy White Paper and applied
in the Commissions medium-term SAP for 19951997,127 including: an
expansion of the policy content of the Commissions annual Employment
in Europe reports;128 strengthening of the employment observatory system
and databases on labour market measuresin particular, to improve the
quality of comparative statistical information;129 and consolidation of the
European Employment Service (EURES) set up to inform, counsel and place
job-seekers across Europe.130 The Standing Employment Committee, first
established in 1970,131 was to be revised and updated as the main institutional forum for dialogue between the Council, the social partners and the
Commission on the Unions employment strategy.132 The Structural Funds,
particularly the European Social Fund, were to be adapted and strengthened to contribute in a complementary way to promote employment.133 In
respect of education and training, the Youthstart initiative was to be
124

See Presidency Conclusions, Dublin European Council, 13/14 Dec 1996, para 36.
See Cullen and Campbell, n 103 above at 271; and S Sciarra, The Employment Title in
the Amsterdam Treaty. A Multi-language Legal Discourse in OKeeffe and Twomey (1999)
n 1 above, 15770 at 160.
126
Title VIII, Art 12530 EC. Discussed in ch 11.
127
COM(95) 134.
128
COM(94) 333. Ch I, para 22. In the Action Programme, ibid the Commission proposed
to focus these reports on the five Essen priorities and consider also the employment potential
of the information society, the emergence of new approaches to work organisation, and local
employment initiatives (para 1.1.4.). See further, A European Strategy for Encouraging Local
Development and Employment Initiatives, COM(95) 273; and Job Opportunities in the Information Society: Exploiting the Potential of the Information Revolution, COM(98) 590.
129
COM(94) 333. In the Action Programme, ibid the Commission proposed to rationalise
these instruments in order to develop closer and more structured employment research
programmes (para 1.2.2.).
130
COM(94) 333. Ch I, para 22.
131
Decision 70/532/EEC, OJ 1970, L273/25 (subsequently modified in 1972 and 1975).
132
COM(95) 134, para 1.2.5.
133
Ibid para 1.3.1. During the period 19941999, 141 mn ECU was to be committed for
this purpose.
125

Promoting Employment 309

underpinned by a Union-wide guarantee that no young person should be
unemployed under the age of 18.134 Targets were to be established to, inter
alia, eliminate basic illiteracy, raise the status of initial vocational education and training, extend the scope and range of existing apprenticeship
schemes and introduce tax incentives for firms and individuals to invest in
their continuing training.135 Further, the Leonardo and Socrates action
programmes were established in tandem to harness activities in these
areas.136 Finally, a new series of Community initiatives was launched including Employment, designed to improve access to employment for
disadvantaged groups, and ADAPT, intended to assist workers at risk of
unemployment through industrial change to adapt to new working
practices and methods.137
Despite all these efforts, by 1996, when the Commission launched a Confidence Pact for Employment,138 an air of crisis was pervading. Aggregate
employment had fallen by 4 per cent since 1991 and such a persistent fall
was undermining society and placing millions of men and women in precarious situations.139 A climate of confidence had to be restored as a prior
condition for the recovery of investment and consumption.140 The Confidence Pact was primarily aimed at full mobilisation of all the actors
public authorities and social partners alikein a comprehensive strategy at
macro-economic level and in the internal market.141 Only in this way would
it be possible to deliver the aims of an active labour market policy. Hence,
in the relatively brief period from Maastricht to Amsterdam, the Unions
strategy for combating unemployment through promoting active labour
market measures and surveillance of national policies had become the
raison dtre for the Unions social policy, first pervading and then eclipsing all other priorities in both ex-Articles 117122 EC and the Agreement
on Social Policy. All of this was made possible by a battery of high-level
soft law initiativeswhat Streeck has described as governance by
persuasion142shattering the myth, actual or potential, of an autonomous,
insulated European social policy.
134
COM(94) 333. Ch II, para 12. Young persons should be provided with either a place
on an education and training system or in a linked work and training placement.
135
Ibid.
136
Leonardo, the action programme on vocational training (19951999) was based on
Art 127 [now 150] EC, Decision 94/819/EC, OJ 1994, L340/8. Socrates, the education action
programme covering the same period, was based on Arts 126 and 127 [now 149 and 150]
EC, Decision 95/819/EC, OJ 1995, L87/10. For discussion, see Hervey, n 118 above, pp
11219.
137
COM(94) 333. Ch II, para 24.
138
Action for Employment in Europe, COM(96) 485.
139
Ibid para 1.
140
Ibid.
141
Ibid para 5. The broad aims of the Pact were incorporated into the The Jobs Challenge:
Dublin Declaration on Employment issued at the Dublin European Council, 13/14 Dec 1996.
142
See Streeck, n 119 above at 49.

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From Maastricht to Amsterdam

III REORGANISING WORK

While the main thrust of the Essen process was directed at addressing
the structural problem of unemployment in the Union through a reform of
national employment systems, the Confidence Pact envisioned an equally
ambitious parallel process, already trailed in the Growth White Paper,143
whereby a new concept of the content and role of work in society needed
to be devised.144 This would entail two strands of policy development: firstly,
reorganisation of work in firms, diversification of individual working times
and statuses to facilitate a new balance between flexibility and security; and,
secondly, the transformation of the link between working life, education
and training throughout active life.145 The Commissions mission, mapped
out in the 1997 Green Paper on the Organisation of Work, was to rise above
the sterile flexibility debate because:146
. . . while much has been written about the need for flexibility of the labour market
and its regulation, much less has been said about the need for flexibility and
security in the workplace . . .
An improved organisation of work will not of itself solve the unemployment
problem, but it can make a valuable contribution, firstly, to the competitiveness of
European firms, and, secondly, to the improvement of the quality of working life
and the employability of the workforce.

Once again the Commission was seeking a third way to reconcile apparently conflicting themes, just as it had done in the 1980s with the interdepartmental Working Party on The Social Dimension of the Internal
Market.147 Whereas the Working Party had sought to reconcile the decentralised and normative (deregulatory/regulatory) approaches to social policy
integration, the Green Paper addressed the hitherto opposing concepts of
flexibility and security.148 By early 1997 the notion of a third or middle path,
as a means of overcoming conventional bipolar thinking, was very much in
vogue with the emergence of modernising, putatively social democratic,
leaders like President Clinton and his New Democrats in the US and, imminently, Tony Blair and New Labour in the UK.149 Giddens, whose writings
143

Bulletin of the European Communities Supplement 6/93, p 17.

COM(96) 485, para 3.1.2.
145
Ibid.
146
Bulletin of the European Union Supplement 4/97, paras 34.
147
Social Europe, Special Edn (European Communities, Luxembourg, 1988). See ch 3 for
analysis.
148
National developments along these lines were already taking place. For example, in the
Netherlands a Flexibility and Security Agreement was signed by the social partners in 1996
to address the needs of part-time and temporary workers. See Rhodes, n 9 above at 18.
149
See for example, T Blair, The Third Way: New Politics for the New Century (Fabian
Society, London, 1998). For discussion, see J Kenner, The EC Employment Title and the Third
Way: Making Soft Law Work? (1999) 15 International Journal of Comparative Labour Law
and Industrial Relations 33.
144

Reorganising Work

311

have profoundly influenced Blair, has posited the Third Way as a means
of responding to fundamental challenges and dilemmas such as globalisation, individualisation and the breakdown of the Left/Right dichotomy.150
In particular, advocates of the Third Way regard globalisation not just as
an economic phenomenon but as the transformation of time and space in
our lives,151 a refrain that carries echoes of the earlier demands of the
European Parliament for an ergonomic approach to the concept of the
working environment,152 a plea largely heeded by the Court in the Working
Time case.153 Giddens argues that Europe needs to respond to globalisation
by developing social, political and economic institutions that stretch above
the nation-state and reach down to the individual.154
In the 1997 Green Paper the Commission sought to address this transformation as manifested in what Supiot had described as the gradual
erosion of the distinction between the two domains of working time
largely male, and characterised by subordination within the employment
relationship, and free timemainly female, typically unpaid household
work and child rearing.155 The Commission suggested a range of working
lifetime policies that may reduce unemployment and improve the quality
of life by humanising the world of work and, above all, its compatibility
with private life.156 Among the suggestions were a reduction in working
time, calculation of working time on an annual basis, greater part-time
work and flexible leave arrangements.157
The Council Recommendation on Childcare158 and the Framework
Agreements on Parental Leave159 and Part-time Work,160 although limited
in both scope and legal effectiveness, were indicative of this approach, possessing the dual aims of furthering a family friendly agenda based on a
sharing of responsibilities between working parents, and offering both flexibility of working time and security for workers.161 Most significantly, while
150
See A Giddens, The Third Way (Polity Press, Cambridge, 1998) pp 2768; and,
generally, A Giddens, Beyond Left and Right: The Future of Radical Politics (Polity Press,
Cambridge, 1994).
151
Giddens, The Third Way, ibid pp 301. See further, F Snyder, Europeanisation and Globalisation as Friends and Rivals: European Union Law in Global Economic Networks in F
Snyder (ed) The Europeanisation of Law: The Legal Effects of European Integration (Hart,
Oxford, 2000) 293320.
152
The Concept of the Working Environment and the Scope of Article 118a of the EEC
Treaty, Salisch Report, PE DOC A 2226/88, 21 Oct 1988. See ch 3 for discussion.
153
Case C84/94, United Kingdom v Council (Working Time Directive) [1996] ECR I5755.
154
Giddens, The Third Way, n 150 above, p 142.
155
See Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe, n 47 above, pp 5893.
156
Bulletin of the European Union Supplement 4/97, para 54. Emphasis added.
157
Ibid paras 4854.
158
Council Recommendation 92/241/EEC, OJ 1992, L123/16.
159
Dir 96/34/EC, OJ 1996, L 145/4.
160
Dir 97/81/EC, OJ 1998, L 14/9.
161
See the Commissions Explanatory Memorandum concerning the draft directive on
part-time work, COM(97) 392, paras 9 and 11.

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From Maastricht to Amsterdam

the main thrust of the Working Time Directive has tended to reinforce the
traditional dichotomy between mutually excusive periods of working time
and rest,162 it also contains specific provisions, such as the somewhat amorphous Article 13, which is intended to humanise the workplace where
work is organised according to a certain pattern by obliging Member
States to take account of the general principle of adapting work to the
worker, in particular, by alleviating monotonous work and work at a
pre-determined work rate, especially as regards breaks during work time.
The Green Paper was intended to build on these tentative developments
as part of an overall philosophy, later developed in the Supiot Report,163
that time must be envisaged as an individual subjective experience, that is
to say, as time in workers lives.164 From this starting point of greater autonomy, the Commission proceeded to respond to the impact of globalisation
by arguing that job security was no longer possible without flexibility. It
was necessary to break out from conventional thinking because the organisation of work was no longer solely based on Fordist hierarchical, topdown management with a high degree of specialisation and simple, often
repetitive jobs.165 Rather, a more fundamental change in the organisation
of work was emerging in the post-Fordist agethe flexible firm. In this
new entrepreneurial environment firms were shifting from fixed systems of
production to flexible open-ended processes of organisational development
offering new opportunities for lifelong learning, innovation and increased
productivity.166 Innovative methods piloted by highly productive flexible
firms were to be encouraged because, on the one hand, they would meet
the requirements of employers for a reliable workforce with interchangeable skills and adaptable work patterns capable of coping with fluctuations
in demand for their goods and services, while, on the other hand, it was
hoped that employees would have greater job satisfaction, higher skills
and long-term employability.167 In particular, flexible firms would be best
placed to respond to rapid changes arising from, amongst other things, the
emergence of a better-educated and trained workforce, more demanding
consumers and, above all, the technological revolution.168 In this new
climate the buzzwords were adaptability and employabilitylater to
emerge as central tenets of the Employment Guidelines post-Amsterdam.
The Green Paper was imbued with notions of rights and responsibilities.
The worker who accepts more responsibility in order to be flexible will be
162

Art 2(1) and (2) of Dir 93/104/EC, OJ 1993, L307/18.

See Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe, n 47 above. Supiots expert report to the Commission was first published in French
in 1999.
164
Ibid p 84.
165
Bulletin of the European Union Supplement 4/97, para 13.
166
Ibid para 18.
167
Ibid para 31.
168
Ibid paras 1920.
163

Reorganising Work

313

rewarded with greater security. Moreover, security comes at a price. For

society to afford security with flexibility, there would, over time, have to
be a review of the basic foundations of systems of labour law, industrial
relations, wage regulation and social security.169 In particular, traditional
labour law did not appear to have the answers to the diversification of work
in the form of downsizing, outsourcing, subcontracting, teleworking
and joint ventures.170 As Streeck has argued, the idea was to renew the
European social model through a strategy of competitive solidarity in
which social policy interventions would be aimed at enabling individuals,
sectors and, indeed, nation states to survive in an internationally competitive economy.171 Ultimately, therefore, Community employment law, to be
effective, must address the individualisation and heterogeneous nature of
working time.172
The Green Paper identified several elements of this debate including, inter
alia: lifelong learning173 and training; mainstreaming equal opportunities
policies;174 integrating people with disabilities;175 modernising the public
sector;176 reforming taxation;177 and adapting social security systems.178 In
each case the Commission urged the Member States and the social partners
to adapt systems, such as contributory pension schemes,179 which are based
on outdated models of employment that assume that the normal pattern of
work is lifelong, full-time and permanent and therefore serve to perpetuate
the work/family life distinction.
One of the problems for the Commission was that, in many of these areas,
touching on social policies beyond the traditional confines of employment,
competence rested mainly with the Member States. The potential for Community added value justified under the subsidiarity principle was therefore
169

Ibid paras 4161.

Ibid para 41.
W Streeck, Competitive Solidarity: Rethinking the European Social Model, MPIfG
Working Paper 99/8 (Max-Planck-Institut fr Sozialforschung, Cologne, 1999) p 3. Discussed
by Deakin and Reed, n 34 above at 72.
172
See Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe, n 47 above, p 84.
173
Bulletin of the European Union Supplement 4/97, paras 3940. See also, the White
Paper, Teaching and Learning: Towards the Learning Society, COM(95) 590; the Green Paper
on Living and Working in the Information Society: People First (European Commission,
Brussels, 1996); and the follow-up Communication, COM(97) 397. The White Paper on
Teaching and Learning defines lifelong learning as the on-going access to the renewing of
skills and the acquisition of knowledge. See also, the Council Conclusion on Lifelong
Learning, OJ 1997, C7/6.
174
Ibid paras 657. See Section IV of this chapter.
175
Ibid para 69.
176
Ibid para 74. See further, COM(98) 641, Modernising Public Employment Services to
support the European Employment Strategy.
177
Ibid paras 557.
178
Ibid paras 5861. See also, COM(99) 347, A Concerted Strategy for Modernising Social
Protection.
179
Ibid para 58.
170
171

314 From Maastricht to Amsterdam

strictly limited. One area where Community action was possible was the
labour market under the guise of the redefined European Social Fund which,
under Article 123 [now 146] EC was intended to make the employment
of workers easier by facilitating their adaptation to industrial changes and
to changes in production systems, in particular through vocational training
and retraining. The ADAPT Community initiative, introduced in the programming period 19941999 under the revised Objective 4,180 carried a
budget of 4 billion ECU, directing resources at training and re-training in
an overall context of industrial change within and among companies. The
Commission proposed to refocus ADAPT on work organisation with priority given to those willing to make improvements.181
Ultimately the success of the Commissions vision of a new organisation
of work would depend on partnership,182 a theme taken forward in the
Commissions follow-up Communication on Modernising the Organisation
of Work.183 National and local actors, most importantly the social partners,
were encouraged to accept a sense of ownership of changes aimed at modernising the organisation of work and improving levels of employment.184
The Final Report of the European Councils High Level Group on the economic and social implications of industrial change, the Gyllenhammer
Report,185 noted that all economic partnersthe business community,
employee representatives and public authoritiesneeded to anticipate and
prepare for industrial change on a continuous basis.186 This would only be
possible if there was a high level of trust based on regular, transparent and
comprehensive dialogue.187 The Commissions group of experts set up to
analyse and assess systems of participation in companies, the Davignon
Group explained the challenge that lay ahead in the following terms:188
Globalisation of the economy and the special place of European industry raises fundamental questions regarding the power of the social partners within the company.
The type of labour needed by European companiesskilled, mobile, committed,
responsible, and capable of using technical innovations and of identifying with the
objective of increasing competitiveness and qualitycannot be expected to simply
obey the employers instructions. Workers must be closely and permanently involved
in decision-making at all levels of the company.
180
For the general framework, see Reg 2081/93/EEC, OJ 1993, L193/95; and for the
detailed scheme, see the amended Social Fund Regulation, 2084/93/EEC, OJ L193/39.
181
Bulletin of the European Union Supplement 4/97, paras 703.
182
Hence the full title of the Green Paper: Partnership for a New Organisation of Work.
183
COM(98) 592.
184
See C Barnard, EC Employment Law, 2nd edn (OUP, Oxford, 2000) p 508.
185
Brussels: European Commission, 1998. Available at:
<http://europa.eu.int/comm/dg05/soc-dial/gyllenhammer/gyllen-en.pdf>.
186
Ibid p 9.
187
Ibid. See further, Barnard, EC Employment Law, n 184 above, p 508.
188
The Group of Experts on European Systems of Worker Involvement, Final Report, May
1997, para 19:
<http://europa.eu.int/comm/employment_social/soc-dial/labour/davignon/davi_en.htm>.

Reorganising Work

315

The Community had already sought to establish trust through voluntary

agreements. One example is the PEPPER Recommendation on the promotion of employee participation in profits and enterprise results,189 which
is regarded as a shared responsibility of management and labour. In practice most national governments have not created a legal framework where
such schemes can prosper.190
Another example is Article 13 of the European Works Councils Directive.191 Under this provision the Directive would not apply where employers and employees representatives in large transnational enterprises192 had
reached voluntary agreements in advance of the formal deadline for implementation provided such agreements covered the entire workforce and
guaranteed transnational information and consultation of employees.193 By
September 1996, when the deadline had expired, 386 agreements had been
signed, including 58 by British companies who were not technically bound
by the Directive when it came into force.194 Even within the framework of
the Directive, every effort is made to create trust through the process of
negotiation with the details of any agreement being left to the parties
providing a consensus is reached within a stipulated timeframe.195
Further steps were now required to help create a workplace environment
in which workers would be prepared to accept change while firms would
be able to demonstrate their corporate social responsibility. As we
shall see in Chapter 11, these efforts have focused on the revival of the
European Company Statute,196 dormant since the early 1980s, a Directive
on a General Framework for Improving Information and Consultation
Rights of Employees,197 and a Green Paper on a European framework for
Corporate Social Responsibility.198
189
Council Recommendation 92/443/EEC, OJ 1992, L243/53. See further, Barnard, EC
Employment Law, n 184 above, pp 5501.
190
See the follow-up Communication, COM(96) 697.
191
Dir 94/45/EC, OJ 1994, L254/64.
192
Under Art 2(1) the Directive covers either: Community-scale undertakings, defined as
undertakings with at least 1000 employees within the Member States and at least 150 employees in at least two Member States, or: Community-scale groups of undertakings, which are
groups with at least 1000 employees in the Member States; at least two group undertakings
a controlling undertaking and its controlled undertakingin different Member States; and, at
least one group undertaking with at least 150 employees in one Member State and at least
one other group undertaking with at least 150 employees in another Member State.
193
Information should, under Art 6(3) relate to transnational questions that significantly
affect workers interests. Under Art 2(2) consultation is defined as the exchange of views
and establishment of dialogue between employees representatives and management.
194
British firms not covered by the original Directive were not bound to comply until 15
Dec 1999 when the UK extension Directive came into force: Dir 97/74/EC, OJ 1998, L10/22.
195
See Arts 57 of Dir 94/45.
196
Reg 2157/2001/EC on the Statute for a European Company (SE) OJ 2001, L294/1; Dir
2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees, OJ 2001, L294/22.
197
Dir 2002/14/EC, OJ 2002, L80/29.
198
COM(2001) 366.

316

From Maastricht to Amsterdam

IV COMBATING SOCIAL EXCLUSION

(1) Reconceptualising Social Solidarity

Promoting employment rests side by side, but not always comfortably, with
the interlocking but discrete aim of combating and, ultimately, eradicating
social exclusion. Unemployment and social exclusion represent visible manifestations of situations that reflect, by their very existence and scale, the
need to combine the Unions economic and political ambitions with a
concern for its internal cohesion and social dimension.199 The Social Charter
left much unfinished business, not least the unsatisfactory resolution of the
citizen / worker debate. As was shown in chapter 4, the Social Charter
protects workers who are not citizens but not citizens who are not workers.
The Member States drew back from a broad inclusive conception of social
citizenship and, in the process, excised or diluted all references from the
Commissions draft to combating unemployment and social exclusion.
Hence, when the TEU introduced limited citizenship provisions, a market
citizenship orientation to the concept was reinforced.200 Social solidarity,
an apparently all-embracing cornerstone of the European social model,
was mere empty rhetoric for the increasingly large number of Europeans
who were not worker citizens and therefore excluded. As Kleinman and
Piachaud perceptively observe:201
Solidarity can be understood as a mechanism of inclusion, but one that depends on
identification with a particular group and hence paradoxically, on the exclusion of
those deemed to be outside the group.

Social exclusion is a multifaceted phenomenon arising from a variety of

incidences of poverty and marginalisation, including: long-term unemployment; the impact of industrial change on poorly skilled workers; the breakdown of family structures; homelessness; rural and urban deprivation;
racism and xenophobia; and inaccessible social services.202 By the early
1990s, Member States, who had traditionally regarded poverty as a residual state of affairs that would disappear with progress and growth,203 were
finding these problems increasingly intractable and, therefore, politically
sensitive. While Community anti-poverty programmes had been ongoing

199
See Towards a Europe of Solidarity: Intensifying the fight against social exclusion,
fostering integration, COM(92) 542, p 4.
200
See now Arts 1722 [ex 88e] EC. See further, M Everson, The Legacy of the Market
Citizen in Shaw and More, n 35 above, 7390.
201
See n 7 above at 7.
202
See generally, COM(92) 542, and ECOSOCs Opinion on Social Exclusion, OJ 1993,
C352/48.
203
COM(92) 542, p 7.

Combating Social Exclusion 317

from the 1970s,204 there was general agreement that a fresh approach was
needed and that many of the mechanisms causing social exclusion were
structural.205 Moreover, exclusion was linked with the wider legitimacy
crisis as demonstrated by rising disillusion with the political process and
growing social tensions, including disruptive behaviour involving violence
or drugs and racial attacks, often founded on insecurity and fear for the
future.206 In the wake of escalating unemployment and homelessness,207
widening income disparities,208 demographic changes and pressures on
social protection systems, the challenge for the Union was to reconceptualise social solidarity and develop policies capable of transcending the
citizen/worker dichotomy.
In the Green Paper on Social Policy the Commission accepted this challenge and sought to carry forward a debate that had first been launched
with the publication of the Poverty 3 Action Programme in 1989209 followed by a Council Resolution on combating social exclusion.210 The Commissions aim, developed in its 1992 Communication on Social Exclusion,211
was to break out from the contested discourse over narrow and somewhat
futile definitions of poverty212 and simultaneously develop a new, less stigmatised terminology because:213
The concept of social exclusion is a dynamic one, referring both to processes and
consequent situations . . . More clearly than the concept of poverty, understood far
too often as referring exclusively to income, it also states out the multidimensional

204
See Council Resolution of 21 Jan 1974, OJ 1974, C13/1; Decision 75/458/EEC (Poverty
1) OJ 1975, L199/34; Decision 85/8/EEC (Poverty 2) OJ 1985, L2/24; and Decision
89/457/EEC (Poverty 3) OJ 1989, L224/10.
205
COM(92) 542, p 7.
206
COM(93) 551, p 21.
207
See COM(92) 542, p 3, where it was recorded that 35% of the long-term unemployed
had never worked and it was estimated that there were three million homeless people in the
Community.
208
50 million people were recorded as poor in 1985 on the basis that poverty, statistically,
is based on a person living in a household for which the disposable income per adult equivalent is less than half the average disposable income per adult equivalent in the Member State
in which that person lives. EUROSTAT, Rapid Reports, Population and Social Conditions
1990.7. By 1994 this figure had increased to 52 million. See COM(94) 333. Ch VI, para 14.
209
Decision 89/457/EEC establishing a medium-term Community action programme concerning the economic and social integration of the economically and socially less privileged
groups, OJ 1989, L224/10. See Hervey, n 118 above, p 165.
210
OJ 1989, C277/1. See also, Council Recommendation 92/441/EEC on common criteria
concerning sufficient resources and social assistance in social protection systems, OJ 1992,
L245/46.
211
COM(92) 542. The report was based on the work of an independent group of experts
operating as the Observatory of policies for combating social exclusionsee the Annex.
212
In Poverty 1 people living in poverty were defined as persons, families or groups of
persons, whose resources (material, cultural and social) are so limited as to exclude them from
the minimum acceptable way of life in the Member State in which they live: Decision
85/8/EEC, OJ 1985, L2/24. See Hervey, n 118 above, p 161.
213
COM(92) 542, p 8.

318 From Maastricht to Amsterdam

nature of the mechanisms whereby individuals and groups are excluded from taking
part in the social exchanges, from the component practices and rights of social integration and of identity. Social exclusion does not only mean insufficient income,
and it even goes beyond participation in working life: it is felt and shown in the
fields of housing, education, health and access to services.

Within the framework of the implementation of the principle of subsidiarity, the areas of policy that impinge upon social exclusion are mainly the
responsibility of the Member States not the Community. In particular, at
the time of the TEU, there was no specific power for the Community to act
to combat racism and xenophobia or address the exclusion of the disabled
through anti-discrimination legislation. In its Communication, the Commission justified Community action on the basis that the problems were
cumulative and interdependent and, therefore, it would be futile to tackle
any one of the dimensions of social exclusion in isolation.214 Moreover,
because social exclusion affects both individuals and groups subject to discrimination and segregation, it highlights the risks of cracks appearing in
the social fabric, suggesting something more than social inequality and, concomitantly, carries with it the risk of a two-tier or fragmented society.215
The Communitys role, therefore, was to provide added value by identifying best practice, creating support networks and contributing to a deeper
understanding of the debate.216 The impact of Community policies on social
exclusion would be analysed and transnational problems addressed.
Further, the Community would seek to contribute towards the affirmation
values common to all Member States: with special reference to respect for
human dignity.217 A series of proposals for social policies to integrate
people into society were set out both in the Communication and elsewhere,
including the Green Paper, the White Paper and the medium term SAP.
(2) The Communitys Structural Funds
An immediate aim was to gear the Communitys Structural Funds218 to
combat social exclusion and interact with the labour market agenda.219 The
resources available were far from negligible. In the period between 1987
and 1993 these funds had doubled to an annual 14 billion ECU and a
further increase of 72 per cent was planned for 19941999.220 For example,
214

COM(92) 542, p 8.
Ibid.
216
Ibid p 4.
217
Ibid p 5.
218
The European Social Fund (ESF); the European Regional Development Fund (ERDF);
and the European Agricultural Guidance and Guarantee Fund (EAGGF).
219
See From the Single Act to Maastricht and beyond: the means to match our ambitions,
COM(92) 2000; and Community Structural Assistance and Employment, COM(96) 109.
220
For details see Community Structural PoliciesAssessment and Outlook, COM(92) 84.
215

Combating Social Exclusion 319

the European Social Fund, which largely benefited the includedhelping
skilled, mainly male, full-time workers to be geographically mobilewas
now converted into an instrument for cohesion, targeting extra resources
at the long-term unemployed and integrating young people into work
mainly in the less developed and declining regions.221 Specific initiatives
were launched such as NOW, promoting equal opportunities for women
in employment and vocational training,222 and HORIZON, addressing the
educational and vocational needs of disabled people with specific job access
difficulties.223 More generally, enterprises were to be encouraged to introduce anthropocentric production systems aimed at preventing exclusion.224

(3) Expanding Community Action

The Green Paper makes a specific link between social exclusion and new
or expanded Treaty competences in areas such as education, vocational
training and youth,225 culture226 and public health.227 For example the
SOCRATES decision on education emphasised the elimination of social
exclusion and the reduction of racism and xenophobia in the EU.228 Vocational training initiatives would be targeted at young people and the longterm unemployed to help prevent exclusion or reintegrate the non-active
population through a trampoline effect enabling people to bounce back
from adversity to an acceptable standard of living.229 Also, under the
umbrella of social exclusion, neighbourhood-housing programmes within
cities have been supported through the URBAN initiative.230 In relation to
health care, policies have focused on the need for convergence of best practice in the Member States based on securing the right to health care for all
as an element of the European social protection model.231

221
The criteria for the ESF were redefined as priority Objectives 3 and 4 as broadly set out
in the Structural Funds Framework Regulation, 2081/93/EEC, OJ 1993, L193/95; and
detailed in the amended Social Fund Regulation, 2084/93/EEC, OJ L193/39. See J Kenner,
Economic and Social CohesionThe Rocky Road Ahead [1994] Legal Issues of European
Integration 1 at 1617.
222
OJ 1990, C327/5.
223
OJ 1990, C327/9.
224
COM(92) 542, p 20.
225
Arts 1267 [now 14950] EC.
226
Art 128 [now 151] EC.
227
Art 129 [now 152] EC.
228
Decision 95/819/EC, OJ 1995, L87/10. See Cullen and Campbell, n 103 above at 270.
229
COM(93) 551, pp 435.
230
COM(94) 61. The criteria are satisfied where there is an accumulation of factors such
as, high unemployment, low education attainment, poor housing, environmental decay and
high crime rates.
231
See for example, the Council Resolution on future action in the field of public health,
OJ 1993, C174/1; and COM(94) 333, ch VII. See further, Hervey n 118 above, pp 13557.

320 From Maastricht to Amsterdam

(4) Social Protection

Action was also required to converge economic policy with social protection objectives.232 In 1992 the Council had adopted two recommendations
on common criteria for guaranteed resources and benefits in social protection systems which sought to combine the need for financial support for
the most deprived with all the measures necessary for their social and economic integration.233 The Member States recognised that they had common
problems, such as unemployment, ageing, changing family structures, and
rising costs for social protection234 and health care, but at the same time,
they were determined to maintain hegemony over their economic and social
protection policies.235 The Commission instituted bi-annual reports on
Member States social protection systems but there was no obligation on
States to take heed of them.236
In 1995, following a proposal in the medium-term SAP,237 the Commission issued a Communication intended to spark a European debate on the
future of social protection.238 Emphasis was placed on social protection as
an essential vector of social cohesion.239 Social protection was presented as
an example of solidarity resulting from the aim of universal coverage and
the absence of a proportional link between contributions levied to finance
the system and the individual vulnerability of the persons concerned.240
Although the Commission sought to recognise the need to contain costs and
replace the old rigidities with more flexibility,241 the report heavily stressed
the need to root out inequalities, including systemic bias against women,
and proposed, for example, full social protection for part-time and temporary workers, and increased help for carers.242 There was little enthusiasm
232
See The Future of Social Protection: A Framework for a European Debate, COM(95)
466, where, at para 1.1, the Commission defines social protection broadly as all the collective transfer systems designed to protect people against social risks. The Commission note
that, while there is significant diversity among national systems, all Member States provide
specific maintenance benefits to cover the classic risks of old age and retirement, the death of
the provider, disability, sickness, maternity, dependant children and unemployment. Some
Member States also cover other contingencies, such as the cost of caring for the frail elderly,
disabled or sick relatives, and sole parenthood.
233
Recommendation 92/441/EEC on common criteria concerning sufficient resources and
social assistance in social protection schemes, OJ 1992, L245/46; and Recommendation
92/442/EEC on the convergence of social protection objectives and policies, OJ 1992, L245/49.
234
Amounting to one quarter or even one third of the GDP of individual Member States.
See COM(94) 333. Ch VI, para 7.
235
See COM(92) 542, p 20.
236
See Social Protection in Europe, COM(95) 547.
237
COM(95) 134, para 6.1.1.
238
COM(95) 466.
239
Ibid para 2.1.
240
Ibid para 1.1.
241
Ibid.
242
Ibid para 2.1.

Combating Social Exclusion 321

in the Council for taking forward the Commissions suggestions. Instead,
the Member States focused narrowly on those elements of social protection
strategies most closely tied to active labour market policies compatible with
the budgetary constraints required for EMU. Moreover, parallel attempts
to take this strategy further in the proposed Poverty 4 programme243 were
firmly rebuffed by, at least, the UK and Germany, on the grounds that the
Commissions proposals were too invasive of national sovereignty in these
areas.244 The Commission continued to finance anti-poverty projects, some
of which had originally been intended for Poverty 4 and, following a legal
challenge by the UK, the Court later upheld the Commissions decisions on
the grounds of legal certainty.245 In the meantime, the Commission believed
that such reticence on the part of Member States would be temporary
because both the level and financing of social protection were likely to
become more sensitive political issues in the future, especially as demand
for protection against social risks rose.246

(5) Integrating the Disabled and Older People

In addition to the above, specific action programmes were launched with
the aim of ensuring the societal integration of disabled people and older
people. While the programmes in question were, in part, a by-product of
the Social Charter, they were now brought fully within the strategies for
combating social exclusion and promoting employment. For example,
Helios II, the Third Community Action Programme to assist Disabled
People (19931996),247 was concerned, on the one hand, with principles
for implementing a vocational training policy and promoting employment248 and, on the other, with measures, including those to promote functional rehabilitation, educational integration, social integration and an

243

COM(93) 435.
See Cullen & Campbell, n 103 above at 2701.
Case C106/96, United Kingdom v Commission (Poverty 4) [1998] ECR I2729; noted
by T Hervey (1999) 36 Common Market Law Review 1053. The UK contended that the
Commission had no authority to fund these projects and therefore breached Art 4 [now
7] EC on the grounds that each institution can only act within the limits of its powers.
The Court agreed that the Commission was not competent to fund the expenditure (paras
315) but applied its power under Art 174 [now 231] EC to preserve the validity of
payments made or undertakings given by the Commission in order to preserve legal certainty
(paras 3942).
246
COM(95) 466, para 2.7.
247
Decision 93/136/EEC, OJ 1993, L56/30. Helios stands for Handicapped People Living
Independently in an Open Society.
248
For example, the Handynet computerised information and documentation system
had been introduced during Helios I (19881992) to meet the training needs of disabled
people so as to enable them to enter or re-enter the labour market. See ibid. Annex, point
3.
244
245

322

From Maastricht to Amsterdam

independent way of life for disabled people.249 These measures included

the development of a policy at Community level of co-operation with the
Member States and the organisations and associations concerned with the
integration of disabled people based on the best innovative and effective
experience and practice in the Member States involving, where appropriate, voluntary organisations.250 Perhaps the most important element of
Helios II was the establishment of the European Disability Forum representing the Commission and NGOs251 acting on behalf of disabled people
and their families.252 The Forum was to report to an Advisory Committee
of government representatives chaired by the Commission.253 The Commission would be obliged to take account of opinions issued by the Advisory Committee.254 Although the consultative procedure was somewhat
convoluted, the establishment of the Forum was a small but significant step
towards enhanced civil dialogue and indicated a trend in favour of a more
participatory approach to policy development.
Despite these positive features, the Councils Decision on Helios II was
marked by caution. References in the Commissions drafts to the development of a comprehensive Community integration policy and a Community disability policy were deleted from the final text.255 However,
the Commission, subjected to extensive lobbying, proceeded to launch a
Communication in 1996 designed to integrate disability policies into mainstream Community policies and promote further initiatives for the integration of disabled people in working life as part of the Essen process.256 Just
as significant as the move towards mainstreaming was, paradoxically, the
Commissions decision not to proceed with its plans for a new multi-annual
programme after 1996 on the grounds that there was no longer political
support for such a measure. The Commissions reasoning was that programmatic activity in this area would be partly based on Article 235 [now
308] EC and was therefore deemed inimical to the principle of subsidiarity
by some Member States.257 This, in turn, threw a spotlight on the need for
249
Annex Art 3. Art 2 defines disabled people as people with serious impairments, disabilities or handicaps resulting from physical, including sensory, or mental or psychological
impairments which restrict or make impossible the performance of an activity or function considered normal for a human being. Approximately one tenth of the total population are disabled, approximately 37 million in 1996, and about half of all disabled people are of working
age. See Equality of Opportunity for People with Disabilities, COM(96) 406, p 3.
250
Ibid. Art 3(c). 37 mn ECU was set aside for these activities during the lifetime of the
programme (Art 5(2)).
251
Non-governmental organisations.
252
Decision 93/136/EEC, OJ 1993, L56/30, Art 9.
253
Ibid. Art 8(1).
254
Ibid. Art 8(2).
255
COM(91) 350 and COM(92) 482. See L Waddington, Disability, Employment and the
European Community (Maklu, Antwerp, 1995) pp 1238.
256
See COM(96) 406, pp 1213.
257
In the case of Helios II reliance was also placed on Art 128 EEC on vocational training.

Combating Social Exclusion 323

a Treaty amendment encompassing disability discrimination for which the
establishment of the Disability Forum was a catalyst.258
Programmatic activity in relation to older people in this period was more
piecemeal. The Commission identified the broad challenge in terms of maintaining a high level of integration of the older population as Europe ages.259
Following on from the European Year of Older People and Solidarity
between Generations in 1993,260 Council resolutions were adopted on flexible retirement arrangements261 and the employment of older workers.262 In
both cases the Council was seeking to encourage actions by Member States
to open up the labour market to those older workers who wished to continue working and be retrained while continuing to provide the security
offered by retirement benefits. In the White Paper the Commission sought
to build on these initiatives by establishing a framework for Community
support for actions in favour of older people,263 but, despite matching calls
from ECOSOC264 and the European Parliament,265 the Council did not
proceed with the proposal.

(6) Tackling Racism and Xenophobia

Lastly, but perhaps most importantly, soft law proclamations designed to
combat racism, discrimination and xenophobia issued before Maastricht,266
were now supplemented by stronger declarations within the framework of
combating social exclusion.267 This was a logical policy progression, for
258
Calls for a Treaty amendment dated back to 1993 and were focused around the annual
European Day of Disabled Persons. See M Bell & L Waddington, The 1996 Intergovernmental
Conference and the Prospects of a Non-Discrimination Treaty Article (1996) 25 Industrial
Law Journal 320 at 3278.
259
COM(94) 333. Ch VI, para 25. According to EUROSTAT the number of people aged
over 65 was expected to grow by 23 million or 45% by 2020 while the overall population
was likely to fall. See The demographic situation in the Community, COM(94) 595.
260
Decision 92/440/EEC, OJ 1992, L245/43.
261
OJ 1993, C188/1.
262
OJ 1995, C228/1.
263
COM(94) 333. Ch VI, para 26. For the proposal, see COM(95) 53 and OJ 1995, C115/6.
264
OJ 1993, C343/1.
265
OJ 1994, C77/24.
266
See the European Parliaments Committee of Enquiry (the Evrigenis Report, Strasbourg,
1986) and the ensuing 1986 Joint Declaration against Racism and Xenophobia of the
European Parliament, the Council and the Commission, OJ 1986, C158/1. See also, the
Council Resolution of 29 May 1990 on the struggle against racism and xenophobia, OJ 1990,
C157/1; and the Declaration on Racism and Xenophobia issued at the Maastricht European
Council on 9/10 Dec 1991. For further discussion, see ch 9.
267
For example, the Council Resolution of 5 Oct 1995 on the fight against racism and xenophobia in the fields of employment and social affairs, OJ 1995, C296/5; ECOSOC Resolution
on Racism, Xenophobia and Religious Intolerance, ESC 1387/92; the Joint Declaration of the
Social Partners on the Prevention of Racial Discrimination and Xenophobia and the Promotion
of Equal Treatment at the Workplace; and the European Parliaments Resolutions on Racism and
Xenophobia, B40261/94, and Racism, Xenophobia and Anti-Semitism, B41239/95.

324

From Maastricht to Amsterdam

heightened incidents of racism, race discrimination and xenophobia are

based on heterophobia, the fear of others who are in some way different from or outside the majority.268 Moreover, as Hervey notes,269 public
policy, including action at Union level,270 may, consciously or not, serve to
perpetuate assumptions that these others are not full members of a particular society. For example, structural discrimination in national employment and education systems may make the acquisition of necessary skills
disproportionately difficult for members of racial minorities.271
In the context of rising social tensions and internal policy contradictions,
it was now widely recognised that rhetorical commitments and sporadic
activities to combat racism and xenophobia were no longer sufficient. What
was required, according to the Commission in the Green Paper, was comprehensive anti-discrimination legislation as part of an integrated and coherent approach to combating racism, discrimination and xenophobia, whether
founded on colour, race, ethnicity or national origin, religion, beliefs or
culture.272 Moreover, the Commission called for full integration of thirdcountry nationals including equal opportunities in employment, education,
training and housing.273 In the White Paper, the Commission recommended
further steps to integrate migrant workers,274 codes of practice on race discrimination,275 and improved systems for monitoring racial harassment276
but, instead of recommending anti-discrimination legislation, they merely
pressed for specific powers to be included in the Treaty,277 a wish later
fulfilled with the inclusion of Article 13 EC by the Treaty of Amsterdam.
In the meantime, the momentum for further action to combat racism in
the Member States was growing.278 The Council set up an expert Consul268
See T Hervey, Putting Europes House in Order: Racism, Race Discrimination and Xenophobia after the Treaty of Amsterdam in OKeeffe and Twomey (1999) n 1 above, 32949 at
330.
269
Ibid.
270
For example, under the Third Pillar on Justice and Home Affairs, Title VI TEU (now
mainly incorporated along with the Schengen acquis into Title IV EC). See however, Joint
Action 96/443/JHA adopted by the Council on the basis of Article K.3 [now 31] TEU concerning action to combat racism and xenophobia, OJ 1996, L185/5.
271
See Hervey in OKeeffe and Twomey (1999) n 268 above at 337; and E Szyszczak,
Racism: The Limits of Market Equality in B Hepple and E Szyszczak (eds) Discrimination:
The Limits of the Law (Mansell, London, 1992) 12547 at 127.
272
COM(93) 551, p 49. See also, the European Parliament Resolution on the White Paper,
OJ 1995, C43/63.
273
Ibid p 47.
274
COM(94) 333. Ch IV, paras 1821. Proposed measures included ratification by the
Member States of the International Convention on the protection of all migrant workers and
members of their families adopted by the UN on 18 Dec 1990.
275
Ibid para 24. See also, COM(95) 134, para 6.5.2.
276
Ibid. At the Cannes European Council, 26/27 June 1995, the Council agreed to consider
the feasibility of a European Monitoring Centre on Racism and Xenophobia.
277
Ibid para 25. The Commission strongly reinforced the case for a Treaty amendment in
its Communication on Racism, Xenophobia and Anti-Semitism, COM(95) 653, at para 2.3.7.
278
See M Bell, The New Article 13 EC Treaty: A Sound Basis for European Antidiscrimination Law? (1999) 6 Maastricht Journal 5 at 19.

Combating Social Exclusion 325

tative Commission on racism and xenophobia in June 1994,279 the Kahn
Commission, which called for the elimination of all forms of discrimination against persons, or groups of persons, whether citizens of the union or
not.280 In the view of the Kahn Commission:
The Union has an imperative obligation to combat racism and racial discrimination. Indeed, as long as immigrants from non-EU countries are denied Community
residential status, the process of their integration will be retarded and their
segregation prolonged.

The ensuing Council Resolution on the fight against racism and xenophobia in the fields of employment and social affairs281 called for account to
be taken of the Kahn Commissions recommendations and agreed to make
progress towards the following common objectives:282
(a) guaranteeing protection for persons against all forms of discrimination on
grounds of race, colour, religion or national or ethnic origin;
(b) promoting employment and vocational training as significant means of
integrating persons legally resident in the Member State concerned;
(c) fighting all forms of labour discrimination against workers legally resident in
each Member State;
(d) promoting equal opportunities for the groups most vulnerable to discrimination;
(e) promoting adherence to democratic principles and human rights, and the
principle of cultural and religious diversity;
(f) stimulating co-operation and the exchange of experience between Member
States on working methods and arrangements to promote social cohesion.

Significantly, the Member States were seeking to restrict their commitment

to those legally resident according to national lawseffectively excluding
those most vulnerable to exploitation and discrimination such as asylum
seekers and migrant workers performing undeclared work.283 Also absent
was any commitment to amending the Treaty to enable comprehensive
Community anti-discrimination legislation to be adopted. Nevertheless, the
Council Resolution provided a route map for these objectives to be pursued
through specific actions, such as the designation of 1997 as the European
Year against Racism,284 and within the IGC process, by individual Member
279
Bulletin of the European Union 694, point I.29. The Commission included representatives of the Member States and two MEPs. See further, Bell and Waddington, n 258 above
at 3212.
280
European Commission Consultative Commission on Racism and Xenophobia, Final
Report Ref 6906/1/95, p 59. See Bell, n 278 above for discussion.
281
OJ 1995, C296/5. A separate Council Resolution was issued on the response of the educational systems to the problems of racism and xenophobia, OJ 1995, C312/1.
282
Ibid point 7.
283
For a discussion of these issues, see S Peers, Towards Equality: Actual and Potential
Rights of Third Country Nationals in the EU (1996) 33 Common Market Law Review 7.
284
OJ 1996, C237/1. The Commission proposal, COM(95) 653, sought approval for a
Council Decision based on Art 235 [now 308] EC but the Council was only prepared to agree
to a soft law Resolution.

326 From Maastricht to Amsterdam

States, the Community institutions and citizens movements and organisations actively committed by democratic means to the fight against racism
and xenophobia.285

(7) The Participatory Approach to Combating Exclusion

The growth of these citizens movements and organisations was perhaps
the most important development of the early to mid-1990s in this area, not
just because they provided a means of lobbying for more effective action
against racial discrimination, but also because of the part they played in
establishing networks and linking together a range of organisations
concerned about social exclusion and discrimination.286 For example, the
Starting Line Group, formed in 1991, drew up a proposal for an
anti-discrimination directive in 1993287 and, when this was rejected by the
Commission on the grounds of lack of legal competence, they formed an
effective and influential lobbying coalition of over 250 European organisations by 1996, all seeking a Treaty amendment.288
Starting with the Green Paper on Social Policy, and taking its cue from
an obscure Declaration annexed to the TEU,289 the Commission now strove
to gradually institutionalise a process of civic dialogue whereby NGOs
would be consulted and have an input into EU policy making as part of a
movement towards democratising the process of social change at a time
when the move towards globalisation was being paralleled by a growth in
regionalism and localism.290 The Commission was firmly of the view that
in the next stage of European construction it would be necessary to involve
the grass roots more as part of a dynamic approach to citizenship, both
for reasons of democratic functioning and for effectiveness.291
Further inspiration was to follow in 1995 with the Declaration of the
Copenhagen World Summit on Social Development,292 which called for a
285

OJ 1995, C296/5, point 8(c).

See generally, Bell and Waddington, n 258 above.
287
See A Dummett, The Starting Line: A Proposal for a Draft Council Directive Concerning the Elimination of Racial Discrimination (1994) 20 New Community 530.
288
See Bell and Waddington, n 258 above at 323.
289
Declaration No 23 on Co-operation with Charitable Associations. The Declaration states
that: This Conference stresses the importance, in pursuing the objectives in [ex Article 117
EC] of co-operation between [the Community] and charitable associations and foundations
as institutions responsible for social welfare establishments and services.
290
COM(93) 551, p 71.
291
Ibid. See also, the Communication on Promoting the Role of Voluntary Organisations
and Foundations in Europe, COM(97) 241, s 9.7. For discussion, see R Atkinson and S
Davoudi, The Concept of Social Exclusion in the European Union: Context, Development
and Possibilities (2000) 38 Journal of Common Market Studies 427 at 4301.
292
Held on 6/12 March 1995. For EU input into the summit, see COM(94) 669; the
ECOSOC Opinion, OJ 1995, C110/12; and the European Parliament Resolution, B40367/95.
286

Combating Social Exclusion 327

participatory strategy to combat social exclusion and poverty and the creation of a participatory infrastructure.293 Hence, civil dialogue provides
a vehicle for addressing the heterogeneous nature of European society
whereby diverse peoples can challenge exclusionary policies on their own
terms using the language of citizenship to seek recognition of their identity
and an equal place in society.294 Moreover, through diversity and assertiveness it is possible for social exclusion to be challenged without simply
ghettoising categories of people under a new label.295
In the medium-term SAP the Commission set out a new pluralistic ethos
of opportunities for all in the following terms:296
Community action in the social field cannot be restricted to the world of work.
There is already a wide degree of public support for a strong European social policy
across the Union. Further support for the future construction of Europe will be
forthcoming only through action which is credible and visible, in which all of the
citizens of the Union feel involved. This means that, through mutually supporting
economic and social policies, Europe should aim to provide opportunities for all
to play an active part in society in the years ahead and to engage in building Europe
together. The role of civic and voluntary bodies has to be recognised, as well as the
wide range of organisations representing firms, and the different sectors both public
and private.

This vision of a transformed mode of governance for the Union, although

short on detail, was pursued, albeit tentatively, with the establishment of a
European Forum on Social Policy297 to debate fundamental and social rights
in the Union. The Forum comprised the platform of European social NGOs,
the established social partners and representatives of national, regional and
social partners. While not all such organisations can be described as grass
roots, the establishment of the Forum provided a totem for a more universalistic view of citizenship founded on the notion of inclusiveness as an
essential component of Europes identity. Further, universal inclusion brings
with it a sense of mutuality or shared ownership that engenders both
individual rights and responsibilities.
This inclusive conception of citizenship was carried forward through the
umbrella of the Forum by the March 1996 report of a Comit des Sages298
set up by the Commission. Outwardly the Comit des Sages was not
groundbreaking. After all, it was just another expert committee. However,
in its recommendations, the Comit embraced the need for a fully participatory process for negotiating a bill of rights encompassing indivisible
293
See R Lister, Citizenship, Exclusion and the Third Way in Social Security Reform:
Reflections on T.H. Marshall (2000) 7 Journal of Social Security Law 70 at 86.
294
Ibid at 73.
295
Atkinson and Davoudi, n 291 above at 437.
296
COM(95) 134, p 3. Italicised emphasis added.
297
Ibid para 6.0.4.
298
For a Europe of Civic and Social Rights (European Communities, Luxembourg, 1996).

328

From Maastricht to Amsterdam

civic and social rights. Institutions or experts could no longer have a

monopoly of discussion on subjects such as fundamental rights that affect
the day-to-day life of individuals.299 It was proposed that an initial set of
civic and social rights and duties should have immediate effect followed by
a second stage five years later.300 Although not immediately acted upon, the
report of the Comit was to provide the kernel of an idea that was be
developed and reformulated, albeit through another expert drafting
Convention, as the EU Charter of Fundamental Rights.301
V MAINSTREAMING GENDER EQUALITY

By 1995, when the Community was contemplating a Fourth Action Programme on Equal Opportunities for Men and Women,302 there was a widely
held view, at least among the Community institutions, that in the field of
gender equality in the labour market, the Community had provided a strong
legal framework from a narrow legal basis and limited financial
resources,303 arising from a combination of legislation, case law and soft
law programmes, that had delivered significant achievements for
women.304 The Communitys upbeat rhetoric,305 based in part on a surge
in the activity rate of women in the labour market,306 was tempered by
recognition that actual inequalities in employment persisted obdurately and
numerous barriers to womens participation on equal terms with men in
both employment and society remained.307 In particular, women continued
to hold the largest proportion of low-paid, low-qualified and insecure jobs,
often part-time, with a high degree of occupational segregation in services
and the public sector.308 Moreover, as the economic position deteriorated,
299

For a Europe of Civic and Social Rights (European Communities, Luxembourg, 1996)

p 53.
300

Ibid pp 1618.
OJ 2000, C364/1. See ch 12.
See COM(95) 381 and Decision 95/593/EC on a medium-term Community action programme on equal opportunities for men and women (1996 to 2000) OJ 1995, L335/37. For an
overview, see C Hoskyns, A Study of Four Action Programmes on Equal Opportunities in M
Rossilli (ed), Gender Policies in the European Union (Peter Lang, New York, 2000) 4359.
303
See COM(94) 333. Ch V, para 1.
304
See COM(95) 134, para 5.0.1.
305
See J Shaw, Law, Gender and the Internal Market in T Hervey and D OKeeffe (eds)
Sex Equality Law in the European Union (Wiley, Chichester, 1995) 28399 at 288.
306
Between 1983 and 1991 the activity rate of women aged 2549 increased in every
Member State. See COM(93) 551, p 24. Among women as a whole, the percentage in work
rose from under 30% in 1960 to over 40% in 1992. See Employment in Europe 1994
(European Commission, Brussels, 1994) p 45.
307
COM(93) 551, p 25.
308
Ibid. See also, J Rubery and C Fagan, Occupational Segregation of Women and Men
in the European Community, Social Europe, Supp 3/93; C Hakim, Segregated and Integrated
Occupations: A New Approach to Analysing Social Change (1993) 9 European Sociological
Review 289; and B Hepple, Equality and Discrimination in P Davies, A Lyon-Caen, S Sciarra
and S Simitis (eds) European Community Labour Law: Principles and Perspectives
(Clarendon Press, Oxford, 1996) 23759 at 2406.
301
302

Mainstreaming Gender Equality 329

there was evidence that women were disproportionately affected because
there was a higher level of unemployment among women than men.309 In
addition, apparently gender-neutral policies, such as the establishment of
the internal market, had adverse, or at least uncertain, consequences for
women because women were more vulnerable to restructuring, particularly
in the service sectors.310 The Communitys existing strategies had proved
inadequate to tackle the structural causes of inequality in the labour
market.311
Beveridge, Nott and Stephen have identified four interlinked Community
equalities strategies.312 First, there is a guarantee, developed through the
case law of the Court, of a fundamental right of equality within the limited
confines of Community employment law.313 Second, the Community has
adopted a broad range of anti-discrimination legislation concerning
employment and, to a lesser extent, social security. Third, from 1982, the
Community launched a series of action programmes to build on its achievements and adapt its policies in the light of economic and social development.314 The purpose of the first Action Programme was to set up schemes,
including discretionary programmes for positive action,315 which allowed
women access to employment and wider social opportunities where they
were not well represented.316 While each of these strategies has helped to
promote equality, at least on a case-by-case basis, none of them has
systematically addressed the structural causes of discrimination both in
employment and society in general.317 A fourth Community strategy, mainstreaming, was now presented as a means of tackling head-on deep-rooted
and pervasive gender inequality in an all-encompassing fashion.318
Article 2 of the Council Decision establishing the Fourth Equalities
Action Programme (19962000) defines mainstreaming as the principle of

309
EUROSTAT figures for 1995 show unemployment at 12.5% among women compared
with 9.5% among men and 10.7% overall. Unemployment No 2 (European Communities,
Luxembourg, 1996) pp 1011. For an overview, see J Neilson, Equal Opportunities for
Women in the European Union: Success or Failure? (1998) 8 Journal of European Social
Policy 64.
310
See The Impact of the Completion of the Internal Market on Women in the European
Community, DGV Working Document V/506/90 (1990). Discussed by Shaw in Hervey and
OKeeffe, n 305 above.
311
See F Beveridge, S Nott and K Stephen, Addressing Gender in National and Community Law and Policy-making in Shaw, n 8 above, 13554 at 13841.
312
Ibid.
313
See, in particular, Case 149/77, Defrenne v Sabena III [1978] ECR 1365, paras 267.
314
A New Community Action Programme on the Promotion of Equal Opportunities
for Women 19821985, COM(81) 758, para 1. For the Second Action Programme (1986
1990) see COM(85) 801; and the Third Action Programme (19911995) see COM(90)
449.
315
See Council Resolution of 12 July 1982 on the promotion of equal opportunities for
women, OJ 1982, C186/3.
316
See Beveridge, Nott and Stephen, in Shaw, n 311 above at 140.
317
Ibid.
318
Ibid.

330 From Maastricht to Amsterdam

integrating equal opportunities for women and men in the process of
preparing, implementing and monitoring all policies and activities of the
European Union and the Member States, having regards to their respective
powers.319 While the terminology was recent, derived from the Global
Platform for Action adopted at the Fourth UN Conference on Women held
in Beijing,320 the concept was not. Indeed, as early as 1982, a Council Resolution on the promotion of equal opportunities for women had indicated
that account should be taken of the equal opportunities dimension in
preparing and implementing Community policies likely to affect it.321 In
the Third Equalities Action Programme (19911995) the Commission had
called for the integration of equality into general mainstream policy in the
formulation and implementation of all relevant Community policies and
action programmes at Community and the Member State level.322 While
this commitment appeared far-reaching, it is important to note that the fundamental objective of the Third Action Programme was limited to participation by women in the labour market.323
Mainstreaming was taken forward and given substance in the White
Paper on Social Policy where a commitment was made to publish an annual
Equality Report to review developments at Member State and Union-level
and serve as a monitoring instrument for equality policies.324 The Commission also agreed to examine how to build monitoring by gender into all
relevant Union policies and make it a requirement of their evaluation.325
Significantly, the Commission was using similar, but not identical, language
to the Womens Rights Committee of the European Parliament and feminist authors who were calling for a system of gender auditing to assess the
potential gender impact of all Community action.326 The Council, in its
response to the White Paper, was more circumspect when, in its Resolution
on Union Social Policy, it called for the development of an ongoing process
of including specific matters relating to women and men and to equal
319

See COM(95) 381 and Decision 95/593/EC, OJ 1995, L335/37.

Issued on 15 Sept 1995. The Conference defined mainstreaming as the promotion by
Governments and other actors of an active and visible policy of mainstreaming a gender perspective into all policies and programmes so that, before decisions are taken, an analysis is
made of the effects on women and men respectively. The UN had previously used the term
in its international development programmes; see Beveridge, Nott and Stephen, in Shaw, n 311
above at 148. On Beijing, see further, the Commissions background document, COM(95)
221; and the European Parliaments response, B41194/95, OJ 1995, C269/146.
321
Council Resolution of 12 July 1982 on the promotion of equal opportunities for women,
OJ 1982, C186/3. See also the second Council Resolution of 24 July 1986 on the promotion
of equal opportunities for women, OJ 1986, C203/2.
322
COM(90) 449. Introduction, para 16.
323
Ibid. Introduction, para 12.
324
COM(94) 333. Ch V, para 15. The first annual report was published in 1996, COM(96)
650.
325
Ibid para 16.
326
See S Beveridge and F Nott, Gender AuditingMaking the Community Work for
Women in Hervey and OKeeffe, n 305 above, 38398.
320

Mainstreaming Gender Equality 331

opportunities for them, in the definition and implementation of all
Community policies.327
Several piecemeal examples of mainstreaming were to follow, mainly in
the form of soft laws and programmatic action.328 In the context of employment policy, the Council issued two resolutions in 1994. The first was
concerned with the promotion of equal opportunities for men and women
through the employment-related Objective 3 of the European Social
Fund.329 Building on a commitment in the Regulation implementing the
Structural Funds,330 the Resolution invited the Member States to, inter alia,
help to ensure that specifically funded measures targeted at women would
be laid down to promote equal opportunities in every sector of economic
activity and in all areas linked directly or indirectly to the labour market
by making use, in particular, of the flagship NOW vocational training initiative.331 The second Resolution sought to promote equal participation by
women in the employment-intensive economic growth strategy within the
Union.332 While this Resolution was presented in the form of a benign
attempt to promote equality, it was even more explicitly linked to the
employment agenda derived from the earlier Growth White Paper and the
contemporaneous Essen priorities. The Resolution identified the growing
number of highly educated women as a hitherto insufficiently exploited
source of skills and innovative capacity which will have to be developed
and used more intensively.333 Moreover, equal opportunities depend on
men and women being able to support themselves by taking up paid
employment.334 A variety of objectives were espoused including,335 inter
alia: facilitating access by women to the labour market and career progression through education and training opportunities; overcoming the sexbased segregation of the labour market; and promoting the employment of
women in decision-making posts. Therefore, the success of the European
Employment Strategy was contingent upon progress towards equal opportunities and vice versa.
Following the European Councils at Essen and Cannes,336 where the
Member States declared that promoting equal opportunities and the fight

327

OJ 1994, C368/6.
Examples in other policy areas include separate Commission Communications on integrating gender issues into development co-operation and the external dimension of human
rights policy, COM(95) 423 and COM(95) 567.
329
OJ 1994, C231/1.
330
Art 1(1)(d) of Reg 4255/88/EEC laying down provisions for implementing Reg
2052/88/EEC as regards the European Social Fund, OJ 1988, L374/21.
331
OJ 1994, C231/1, point 6(c). For the NOW initiative, see OJ 1990, C327/5.
332
OJ 1994, C368/3.
333
Ibid point 2(c).
334
Ibid point 2(a). Emphasis added.
335
Ibid point 4.
336
Dec 1994 and June 1995.
328

332

From Maastricht to Amsterdam

against unemployment were now the priority tasks of the Community

and the Member States, the Fourth Equalities Action Programme, and an
ensuing Commission Communication,337 were issued to drive forward and
bring coherence to the Communitys mainstreaming initiatives. A new
group of Commissioners, chaired by the President, was established to
oversee the horizontal approach to gender issues.338 The strategy was
intended to, on the one hand, provide the highest level political commitment to promoting equality in all areas and at all levels and, on the other,
to provide a set of tools for appraising and monitoring policies for their
positive and negative effects on equal opportunities.339 While equality was
to be integrated into all areas and all actors were to be mobilised, the programme was intended to support Member States efforts mainly in areas
linked to the labour market. For example, the aims included:340
promoting equal opportunities for men and women in a changing
economy, especially in the fields of education, vocational training and the
labour market;
reconciling working and family life for men and women;
promoting a gender balance in decision making and;
making conditions more conducive to exercising equality rights.
A variety of tools would be utilised to implement these objectives including:341 exchange of information and experience of good practice or benchmarking; observing and monitoring relevant policies and conducting
studies in the field; and rapid dissemination of the results of the initiatives
embarked upon. Under the medium-term SAP, Community legislation
would be considered in two areas: reconciling family and professional
life;342 and the burden of proof in sex discrimination cases where it was difficult or sometimes impossible for complainants to prove discrimination.343
The Commission also envisaged soft law guidance in the form of a Code
of Practice on Equal Pay,344 designed to eliminate direct and indirect sex
discrimination in grading, classification and job evaluation systems. An
337
Incorporating Equal Opportunities for Men and Women into All Community Policies
and Activities, COM(96) 67. See also, the European Parliament Resolution on Mainstreaming, OJ 1997, C307/50.
338
COM(95) 26, para 3.2. See Beveridge and Nott, n 326 above at 384.
339
C Booth, Gender Mainstreaming in the European Union. Toward a New Conception
and Practice of Equal Opportunities, ESCR Seminar Series: The Interface Between Public
Policy and Gender Equality (Centre for Regional Economic and Social Research, Sheffield
Hallam University, 1999). See Beveridge, Nott and Stephen, in Shaw, n 311 above at 148.
340
Art 2(c)2(f) of Decision 95/593/EC, OJ 1995, L335/37.
341
Ibid. Art 4 and the Annex.
342
COM(95) 134, para 5.1.2. Followed up by the Framework Agreement and Directive
96/34/EC on Parental Leave, OJ 1996, L145/4.
343
Ibid para 5.1.4. Followed up by Directive 97/80/EC on the Burden of Proof in Sex
Discrimination Cases, OJ 1997, L14/16.
344
Ibid para 5.1.5. See COM(96) 336 for the Code.

Mainstreaming Gender Equality 333

evaluation report was planned on the Recommendation on the protection
of the dignity of men and women at work.345 A separate Recommendation would be proposed concerning the greater participation of women in
decision-making processes in both public and private sectors.346
In order for mainstreaming to be effective, sufficient resources need to be
devoted to it along with trained personnel, transparency at all levels and a
separate agency to oversee the process.347 The Council Decision, however,
strictly limited the scope of the Commissions original proposal, by requiring that only existing structures should be used for monitoring and
appraisal348 and restricting the budget for the Action Programme to a paltry
ECU 30 million over five years.349 Moreover, the Commission had proposed
a revamped Advisory Committee on Equal Opportunities consisting of
representatives from Member States, national equalities bodies, the social
partners and the European Womens Lobby, with enhanced powers of
monitoring and scrutiny.350 The Council restricted the Committees representation to the Member States with the Commission in the Chair.351 The
Committees role was limited to issuing an opinion on the Communitys
general guidelines, annual work programme and evaluation procedures.352
The reaction from the Member States to mainstreaming was initially
mixed. For example, no specific mechanisms were established in Spain and
Portugal. By contrast, in Sweden and the Netherlands combating gender
discrimination was incorporated into all fields of activity through the use of
gender impact assessment tools and the development of expert resources.353
Mainstreaming represents an ambitious pluralistic approach to gender
equality that, despite the limitations inherent in the Council Decision, has,
firstly, provided a springboard for Union action directed from the highest
level in the specific area of the Communitys Structural Funds,354 and in a
variety of general areas including, inter alia: employment and the labour
345

Ibid para 5.1.7.

Ibid para 5.1.6. See Council Recommendation 96/694/EC, OJ 1996, L319/11.
347
See Beveridge, Nott and Stephen, in Shaw, n 311 above at 148.
348
Decision 95/593/EC, OJ 1995, L335/37, Art 4(1). In COM(95) 381, the Commission
had proposed, in its draft Art 3(b) the setting up of facilities for observing and monitoring
relevant policies with regard to equal opportunities and conducting of studies on all the economic, social and legal issues arising in connection with equal opportunities.
349
Ibid. Art 10(1). See the Commissions complaint in its Communication on mainstreaming, COM(96) 67, p 4.
350
Commission Decision 95/420/EC amending Decision 82/43/EEC relating to the setting
up of an Advisory Committee on Equal Opportunities for Women and Men, OJ 1995,
L249/43.
351
Decision 95/593/EC, OJ 1995, L335/37, Art 9(1).
352
Ibid Art 9(2).
353
See Beveridge, Nott and Stephen, in Shaw n 311 above at 15051; and Commission
Annual Report on Equal Opportunities for Men and Women in the European Union1998,
COM(1999) 106, Section 1.
354
See the Council Resolution of 2 Dec 1996 on mainstreaming equal opportunities for
men and women into the European Structural Funds, OJ 1996, C386/1.
346

334 From Maastricht to Amsterdam

market; the status of women entrepreneurs; education and training; fundamental rights of persons; external relations; and information awareness.355
Secondly, following the adoption of the Recommendation on balanced participation,356 the drive for mainstreaming has been directly linked with
wider issues of citizenship and democratic systems of governance because:357
. . . a balanced sharing of power and responsibilities between women and men will
improve the quality of life of the whole population; the representation of all parts
of society is indispensable if the problems of European society are to be addressed.

Thirdly, the momentum for mainstreaming created by Beijing and the

Fourth Equalities Action Programme was to spill-over directly into the IGC
process leading to agreement at Amsterdam for a general commitment to
equality between men and women among the Communitys tasks in Article
2 ECextending beyond the sphere of the labour marketand, in Article
3(2) EC, a specific horizontal clause formalising mainstreaming whereby,
in all the Communitys activities referred to in Article 3(1) [ex 3] EC, the
Community shall aim to eliminate inequalities, and to promote equality,
between men and women. Fourthly, and finally, reliance on soft law has
served to respect the diversity of Member States, while reflecting the fact
that there is no single meaning to sex equality,358 and has allowed for an
evolutionary approach to gender impact assessment at both Union and
national levels.

VI CONSOLIDATION, COMPLIANCE AND ENFORCEMENT OF

COMMUNITY SOCIAL LEGISLATION

(1) Introduction
One of the underlying themes of the social policy discourse of the mid1990s was the contrast between the Communitys self-acclaimed achievement of a solid base of social legislation359 and the practical reality that,
if such legislation was to have a meaningful impact on the lives of individuals in Europe, it was essential for it to be correctly transposed and
properly applied.360 Over the period of the 1989 Action Programme the
355

See COM(96) 67, p 5.

Council Recommendation 96/694/EC, OJ 1996, L319/11.
See the Charter of Rome signed on 17 May 1996 at the European Conference on
Women for the Renewal of Politics and Society. Reproduced in the Annual Report on Equal
Opportunities for Men and Women1996, COM(96) 650, s 4.4.
358
See I Ward, Beyond Sex Equality: The Limits of Sex Equality Law in the New Europe
in Hervey and OKeeffe, n 305 above 36982 at 372. For discussion, see Beveridge, Nott and
Stephen, in Shaw, n 311 above at 152.
359
See COM(94) 333. Introduction, para 22.
360
Ibid Ch X, para 1.
356
357

Consolidation, Compliance and Enforcement 335

Commission expended considerable energy on delivering its 47 flagship proposals, a task largely achieved through a variety of legislative and nonlegislative means,361 but afforded a relatively low priority to qualitative
reform of existing laws, more effective monitoring of the application of
directives by Member States, and exercising their powers of enforcement in
accordance with Article 155 [now 211] EC.362 In the meantime the Court
had the difficult task of interpreting social legislation designed in the
1970s and applying it in a rapidly changing labour market environment.
The White Paper on Social Policy and the ensuing medium-term SAP
foreshadowed a change in the relationship of reciprocity between the
Community and the Member States in the area of employment law and
social policy. While the Community would now accept a greater onus to be
accountable by reviewing and justifying its actions, present and past,
the Member States would be expected to give a higher priority to the full
implementation and enforcement of the Communitys rules.363 In this
section we will consider these twin challenges as follows: first, consolidation and legislative review; and second, compliance and enforcement.

(2) Consolidation and Legislative Review

The White Paper on Social Policy needs to be understood in the context of
the Unions broader response to applying the principle of subsidiarity and,
arising from the Growth White Paper, the growing demands of business
for a reduction in the quantity and complexity of Community regulation
deemed to be anti-competitive. What emerged from this process was not a
radical deregulation agenda, but rather a less threatening and more technocratic review exercise that did not directly tamper with the Communitys
system of governance.364 The Community would do less, but do it better.365
As a first step the Union embarked upon a drive to clarify and simplify legislation to make it more transparent and accessible to its citizens.366 These
361
At the time of the Green Paper 29 proposals identified by the Commission for legislative action had been referred to the Council and 16 of these had been adopted. COM(93) 551,
p 10.
362
Ibid para 2. Under Art 211 the Commission shall ensure that the provisions of this
Treaty and the measures taken by the institutions pursuant thereto are applied.
363
See COM(94) 333. Ch X.
364
See generally, I Maher, Legislative Review by the EC Commission: Revision without
Radicalism in Shaw and More, n 35 above, 23551; and K Armstrong, Governance and the
Single European Market in Craig and de Brca (1999) n 68 above, 74589 at 757.
365
See the Commissions Better Lawmaking reports: COM(95) 580; COM(96) 7; and
COM(97) 626. Discussed by Armstrong, ibid at 757.
366
Declarations were issued at the Edinburgh European Council of December 1992 on:
Making New Community Legislation Clearer and Simpler, and Transparency: Making Existing Community Legislation More Accessible, Bulletin of the European Communities 12/1992,
pp 1820.

336 From Maastricht to Amsterdam

moves coincided with the publication of the influential Sutherland Report367
which, while it was confined to examining the internal market, recommended a variety of measures to improve the quality of the law, including
consolidation of laws and post-legislative assessment to ensure that laws
were still compatible with their original objectives, an approach taken up
by the Commission in its follow-up Communication.368 In the wake of these
developments, guidance was issued on improving the drafting of legislation369 and the procedure for consolidating laws was simplified.370 Further,
the Commissions report on the adaptation of Community legislation to the
subsidiarity principle indicated a fresh desire to stabilise the volume of permanent legislation, as a form of quality control, by reducing both the quantity of laws to be enacted and the number of laws within the statute book,
the latter aim to be achieved by recasting the law through applying simplifying techniques involving consolidation, codification and updating.371
An additional factor for consideration was the effect of Community legislation and national regulation on competitiveness and employment. In
1994, the Commission, following a Council mandate, established a group
of independent experts chaired by Dr Bernhard Molitor to look into this
question.372 At the same time, the Commission funded a parallel study by
the employers group UNICE looking into the relationship between regulation and competitiveness.373 Therefore the concern of both studies was the
impact of Community legislation on the competitiveness of European businesses.374 Social values were outside the framework of reference although a
majority of the Molitor Group supported a call for fundamental social
rights to be enshrined in the TEU.375 In its report, UNICE recommended

367
The Internal Market after 1992: Meeting the Challenge, Report to the Commission by
the High Level Group on the Operation of the Internal Market, SEC(92) 2277. For discussion Maher, see Maher, in Shaw and More, n 364 above; Armstrong, in Craig and De Brca,
n 364 above; and T Burns, Better lawmaking? An evaluation of lawmaking in the European
Community in Craig & Harlow, n 103 above, 43553.
368
COM(93) 361.
369
Council Resolution on Drafting Quality, OJ 1993, C66/1. The Resolution called for the
wording of acts to be clear, simple, concise and unambiguous. Community jargon and
excessively long sentences should be avoided.
370
By virtue of an inter-institutional agreement on official codification of Community legislation, OJ 1995, C43/41 and OJ 1996, C102/2. See also, the earlier European Parliament
Resolution on simplification, clarification and codification of Community law, OJ 1989,
C158/386.
371
COM(93) 545, p 8. See generally, R Bieber and C Amarelle, Simplification of European
Law in Snyder, n 151 above, 21941; and C Timmermans, How can one improve the Quality
of Community Legislation? (1997) 34 Common Market Law Review 1229.
372
COM(95) 288. The group was made up of non-lawyers. Molitor was the former head
of policy at the German Economics Ministry.
373
Releasing Europes Potential through Targeted Regulatory Reform (UNICE, 1995).
374
See Armstrong, in Craig and De Brca, n 364 above at 759.
375
See the Commissions separate report, SEC(95) 2121, p 39. See Barnard and Deakin,
n 77 above at 192.

Consolidation, Compliance and Enforcement 337

alternatives to Community legislation including non-binding agreements
between business and governments. The Molitor Group were broadly in
tune with UNICE, concluding that the volume, complexity and rigidity of
Community law was an obstacle to growth, competitiveness and job creation, although, in the absence of consensus within the Group, they did not
explicitly recommend deregulation. Among Molitors recommendations
was a call for greater flexibility in the interpretation of the reference period
for the calculation of working hours in the Working Time Directive376 and,
more controversially, a suggestion that the standard of care for employers
with regard to health and safety at work might be lowered on the basis
of a strict cost/benefit analysis.377 These proposals reveal that the Molitor
Group had a preconceived view that equated simplification with deregulation when no empirical or scientific evidence had been presented to support
this concept.378 The Commission, in a withering response, criticised the
absence of criteria for evaluating such a cost/benefit analysis and noted that
the benefits of social policy are mostly qualitative and therefore impossible
to express in monetary terms.379 More generally, the Commission pointed
to an absence of analytical discussion by the Group of the relationship
between simplification and competitiveness.380 Nevertheless, the Molitor
Report was to spur the Commission to launch the Simpler Legislation for
the Internal Market (SLIM) initiative,381 as an attempt to develop a methodology through which to examine the operation of Single Market legislation,
and the Business Environment Simplification Taskforce (BEST) to identify
regulatory barriers to competitiveness and employment opportunities.382
Set against the background of this evolving process of consolidation, codification, simplification and deregulation in all policy areas, the Commission, in the Social Policy White Paper, recommended that in order to adapt
to a changing world all social legislation should be regularly reviewed and,
if necessary, amended or even repealed.383 For example, the proposed

376

COM(95) 288, proposal 9.

Ibid proposal 23. See further, Burns, in Craig and Harlow n 367 above at 451.
See Bieber and Amarelle, n 371 above at 239; and Armstrong, in Craig and De Brca,
n 364 above at 75961. See also, the European Parliaments Resolution on the report of the
group of independent experts on simplification of Community legislation and administrative
provisions (Deregulation) [A40201/96], OJ 1996, C211/23, which declared, at point 2.9,
that the provisions of labour law and those governing health and safety at work must not be
impaired, and need to be made more transparent for those concerned. The reports contention
(which reflects the opinion of the majority of the Group of Experts) that deregulation in this
area will improve competitiveness and employment, is totally unsubstantiated.
379
SEC(95) 2121, p 16.
380
Ibid p 2.
381
COM(96) 204.
382
See the Report issued at the Special Employment Summit held in Luxembourg in Nov
1997. For discussion of SLIM and BEST, see Armstrong, in Craig and De Brca, n 364 above
at 76167.
383
COM(94) 333. Ch X, para 13.
377
378

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From Maastricht to Amsterdam

chemical agents directive,384 now adopted as Directive 98/24,385 was intended

to replace three earlier directives on specific health and safety risks,386 a good
example of simplification. Revision clauses would be incorporated into
future directives, providing a basis for ascertaining when, and to what
extent, legislation should be revised.387 In particular, legislation needed to
be kept under review in the light of the Courts judgments, either to consolidate the legislation to take account of judgments, or to review legislation in cases where the Courts interpretations raise the issue of the real
intentions of the legislator,388 providing a basis for proposals to codify
judicial law-making. As in other policy areas, the Commission sought to
approach legislative review purely as a technocratic housekeeping exercise.
Apparently there was no need to audit all social legislation to take account
of the strengthened social policy objectives in the Agreement on Social
Policy and the as yet unfulfilled ambitions of the Social Charter. Rather, the
whole process was to be conducted in a manner that was devoid of social
values. Administrative convenience was to provide a convenient foil for the
Communitys decision not to pursue a wide-ranging legislative programme
even though legal powers were now available under the Agreement.389 The
schism over the Agreement had created a political and legislative vacuum
that could now be partially filled by a rolling programme of review pending
the completion of the IGC process and, if there were to be a change of
power in the UK, repatriation of the social policy provisions in the Treaty.
During the period of the medium-term SAP several proposals for simplification and codificationfollowed, where necessary, by consolidation
were put forward mainly in the areas of employment protection and sex
equality.

(3) Employment Protection

In the White Paper the Commission cited the revision of the Collective
Redundancies Directive in 1992390 as an example of a legislative amendment that would ultimately require consolidation.391 This truism masked
the fact that the motivation for reviewing the Directive was not simplifica384

COM(93) 155.
OJ 1998, L131/11.
386
Dir 80/1107/EEC, OJ 1980, L327/8; Dir 82/605/EEC, OJ 1982, L247/12; and Dir
88/364/EEC, OJ 1988, L179/44.
387
COM(94) 333. Ch X, para 15.
388
Ibid.
389
Ibid. Introduction, para 22.
390
Dir 92/56/EEC, OJ 1992, L245/3, amending Dir 75/129/EEC, OJ 1975, L48/29. Now
consolidated in Dir 98/59/EC, OJ 1998, L 225/16. For background discussion of the employment protection directives, see ch 2.
391
COM(94) 333. Ch X, para 13.
385

Consolidation, Compliance and Enforcement 339

tion or tidying up, but policy oriented, specifically to fulfil a commitment
in the Social Charter to provide improved information and consultation
rights to workers where the collective redundancy decision in question is
taken by an undertaking located in another Member State irrespective of
where, and at what level, that decision is taken.392
The amended Collective Redundancies Directive, 92/56,393 also sought to
mitigate the effects of the Nielsen decision where the Court had rejected the
Danish trade unions argument that the employer was liable for failure to
consult where he ought reasonably to have contemplated dismissals.394
Under Article 2(4) account would not be taken of any defence on the part
of the employer on the ground that the necessary information has not been
provided to the employer by the undertaking which took the decision
leading to collective redundancies. Moreover, in order to make the Directive more effective, consultation would now have to take place in good
time395 and include written notification of the criteria for selecting workers
for redundancy and the employers own method for calculating redundancy
payments.396 Also, voluntary redundancies in the form of early retirement
would, depending on the precise circumstances, now be capable of falling
within the scope of the Directive.397 Hence, the Communitys aim was to
respond to accelerating corporate restructuring398 by adding a transnational dimension designed to expand and strengthen the protective goals of
the original legislation.399 Further, by addressing the transnational element
in a proactive fashion the Community was helping to create conditions that
392
Social Europe 1/90, ch 2, points 17 and 18. The first paragraph of Art 2(4) of the
amended Dir, 92/56, OJ 1992, L245/3, provided that: The obligations laid down . . . shall
apply irrespective of whether the decision regarding collective redundancies is being taken by
the employer or by an undertaking controlling the employer.
393
Ibid.
394
Case 248/83, Dansk Metalarbejderforbund v Nielsen and Son Maskin-fabrik A/S [1985]
ECR 553, para 16. The Courts reasoning was that such an interpretation would cause employers to incur penalties for failing to have foreseen the collective redundancies when Art 1(2)(d)
of Dir 75/129 had excluded from the scope of the Directive collective redundancies caused by
the termination of an establishments activities where that is the result of a judicial decision.
Art 1 of Dir 92/56 deleted this exemptioneffectively undercutting any resurrection of this
defence in future cases. See further, Barnard, EC Employment Law, n 184 above, p 493.
395
Art 2(3).
396
Art 2(3)(v) and (vi).
397
The revised Art 1 states that terminations of an employment contract which occur on
the employers initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies.
398
See the Commissions Explanatory Memorandum, COM(91) 292, paras 810. For
example, the Commission referred to the increasing number of mergers in the Community.
Between 1983 and 1989 national mergers had risen from 101 to 233 (an increase of 233%)
while mergers between a Community-based undertaking and a third-country undertaking rose
from 25 to 62 (up 248%) and mergers between undertakings situated in different Community Member States rose from 29 to 187 (up 697%). For discussion, see C Bourn, Amending
the Collective Dismissals Directive: A Case of Rearranging the Deckchairs? (1993) 9 International Journal of Comparative Labour Law and Industrial Relations 227 at 230.
399
See B Bercusson, European Labour Law (Butterworths, London, 1996) p 230.

340

From Maastricht to Amsterdam

were conducive to the adoption within two years of a more general directive on transnational information and consultation, namely the European
Works Council Directive.400 Therefore the amendment to the Collective
Redundancies Directive, and its eventual consolidation in 1998,401 may have
been administratively convenient but such benefits were incidental to the
primary social policy objective.
Following on from the review of the Collective Redundancies Directive,
the White Paper also highlighted plans to modify or replace the related
directives concerning Insolvency and Acquired Rights.402 Turning first to the
Insolvency Directive, 80/987,403 several reports and studies were instituted
by the Commission404 and, in 1997, an ad hoc group of government experts
was set up to consider the main difficulties in enforcing the Directive. The
original Directive had been carefully drafted to avoid, or rather disengage
from, the conflict at national level between the rights of creditors and the
rights of employees in an insolvency scenario. The Communitys solution
was to place a social policy obligation on the Member States to establish
institutions guaranteeing employees whose employer had become insolvent
the payment of their outstanding claims for remuneration over a specific
period. Therefore, any further attempt to address gaps or shortcomings in
national insolvency laws by reinforcing employment rights was bound to
be controversial.405 The issue was not progressed during the period of the
next SAP, 19982000,406 and it was not until the advent of a new Social
Policy Agenda in 2000 that a decision was taken by the Commission to
revise the Directive in line with case law and the changing world of work.407
The Commissions proposal, published in May 2001,408 seeks to broaden
the concept of insolvency while ensuring greater consistency with other
Community directives. Under the present definition of a state of insolvency
the scope of the Directive is limited to cases where employers are subject
to proceedings involving liquidation of their assets to satisfy collectively the
claims of creditors.409 Thus, employees of insolvent employers not subject
to liquidation proceedings or their equivalent will not be protected under
Community law even though they may have outstanding pay claims against

400

Dir 94/45/EC, OJ 1994, L254/64.

Dir 98/59/EC, OJ 1998, L225/16.
402
COM(94) 333. Ch X, para 13. Respectively, Dir 80/987/EEC, OJ 1980, L283/23 and
Dir 77/187/EEC, OJ 1977, L61/26.
403
Ibid.
404
See COM(95) 164 and COM(96) 696.
405
For background to the revision process, see the Explanatory Memorandum, COM(2000)
832.
406
COM(98) 259.
407
COM(2000) 379.
408
OJ 2001, C154/109.
409
Art 2 of Dir 80/987 as interpreted by the Court in Case C479/93, Francovich II v Italy
[1995] ECR I3843.
401

Consolidation, Compliance and Enforcement 341

employers who have ceased to trade. The Commission note, however, that
many Member States use a wider definition of the concept of insolvency
which is now reflected in Article 1(1) of Regulation 1346/2000 on insolvency proceedings.410 The Commission therefore propose the following
definition in draft Article 2(1):
For the purposes of this Directive, an employer shall be deemed to be in a state of
insolvency where a request has been made for the opening of collective proceedings,
as provided for under the laws, regulations and administrative provisions of
a Member State, based on insolvency of the employer and involving the partial or
total divestment of the employers assets and the appointment of a liquidator and
the authority which is competent pursuant to the said provisions has:
(a) either decided to open the proceedings,
(b) or established that the employers undertaking or business has been definitively
closed down and that the available assets are insufficient to warrant the opening
of the proceedings.

Moreover, in line with other recent directives,411 while the definition of

employee remains a matter for national law,412 the proposal seeks to insert
a provision stating that Member States may not exclude part-time or fixedterm workers,413 or workers with a temporary employment relationship.414
Also, the Commission propose to dispense with the widely criticised Annex,
which allows Member States to exclude certain workers from its scope on
the grounds that these exemptions are incompatible with social policy.
Nevertheless, the draft of the revised Article 1 retains an exemption for
domestic servants employed by natural persons and share-fishermen.415
Furthermore, Member States may exclude claims by certain categories of
employee by virtue of the existence of other forms of guarantee if it is
established that these offer the persons concerned a degree of protection
equivalent to that resulting from this Directive.416
Under the present Directive there is a complex process whereby the
Member States may impose a time-limit on the guaranteed pay claim involving three alternative dates marking the beginning of the reference period
for claims.417 In the interests of simplification the Commission propose to
lay down a minimum period of three months pay under Community law
and leave it to Member States to fix a date and a reference period.418 Not
only would this be consistent with the principle of subsidiarity, but also it
410

Reg 1346/2000/EC, OJ 2000, L160/1. Effective from 30 June 2000.

See Dir 98/50/EC, OJ 1998, L201/88, discussed below.
Art 2(2).
413
Within the meaning of Dir 97/81/EC and 99/70/EC on part-time and fixed-term work,
respectively, OJ 1998, L14/9 and OJ 1999, L175/43.
414
Within the meaning of Dir 91/383/EEC on health and safety at work, OJ 1991, L206/19.
415
Draft Art 1(3).
416
Draft Art 1(2).
417
Art 4(2) of Dir 80/987.
418
Draft Art 4(2).
411
412

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From Maastricht to Amsterdam

would enable Member States to cover claims arising after the reference date
where the business operation of the firm continues and wages are still
payable.419 The revised provision would continue to allow Member States
to set a ceiling on payment made by the guarantee institution providing
they inform the Commission of the methods used to set the ceiling.420
The final issue addressed in the Commissions proposal concerns the
absence of any provision in the Directive regarding the issue of cross-border
insolvencies. Problematic scenarios have arisen where employees are
affected by insolvency proceedings instituted in another Member State, or
where an insolvent company has establishments in several Member States.
In either of these circumstances there has been uncertainty about which
States guarantee institution is responsible. In Mosbk421 a British company
with an employee in Denmark became insolvent. The company was neither
established nor registered in Denmark. The Court held that the guarantee
institution responsible must be the institution of the State where, either it
is decided to open the proceedings for the collective satisfaction of creditors claims, or it has been established that the employers undertaking or
business has been definitively closed down.422 Therefore, on the facts, the
UK guarantee institution had the responsibility to make the payment. By
contrast, in Everson423 the Court distinguished Mosbk. An Irish company
with establishments in several Member States had been established and registered in the UK where the employees who had brought the proceedings
were employed. In those circumstances the guarantee institution of the
Member State where the employee was employed was responsible.424
Following on from these cases, and the adoption of the Regulation on
insolvency proceedings,425 which provides for automatic recognition of
insolvency proceedings initiated in another Member State, the Commission
proposed to codify the law broadly in line with Mosbk and Everson. Providing an undertaking has establishments in the territories of at least two
Member States, draft Article 8a(1) would, if adopted, provide that the com419
See however, Case C125/97, Regeling v Bestuur van de Bedrijfsvereniging voor de
Metaalnijverheid [1998] ECR I4493, where, at para 23, the Court held that claims made
during the reference period took precedence over payment due before that period.
420
Draft Art 4(3). Note, however, that this provision does not imply that the duty to inform
the Commission gives rise to a Community procedure for monitoring the methods chosen by
the Member State, or that the Member States exercise of the option to set a ceiling is subject
to the express or implied agreement of the Commission. The obligation is simply to inform
the Commission whether or not the Member State has exercised the option. Failure to give
prior notice will not render the ceilings adopted unlawful: Case C235/95, AGS Assedic
Pas-de-Calais v Dumon and Froment [1998] ECR I4531, paras 2930.
421
Case C117/96, Mosbk v Lnmodtagernes Garantifond [1997] ECR I5017.
422
Ibid para 20.
423
Case C198/98, Everson and Barrass v Secretary of State for Trade and Industry and
Bell Lines Ltd [1999] ECR I8903.
424
Ibid paras 2324.
425
Reg 1346/2000/EC, OJ 2000, L160/1.

Consolidation, Compliance and Enforcement 343

petent guarantee institution will be that of the State where the employee
habitually works even where the opening of insolvency proceedings has
been requested in another Member State. In the Explanatory Memorandum
the Commission determined that in order to be established an employer
must have a sufficient business presence in the territory where the employees work, including remuneration of employees in that country, dealings
with the administrative authorities in that State and responsibility for social
security contributions.426
The Commissions proposal to amend the Insolvency Directive strikes a
careful balance between procedural simplification, including the removal of
several loopholes, and expansion of protection for the employees affected,
arising from a combination of codification of the case law concerning crossborder insolvencies and, most importantly, a broader interpretation of
the concept of insolvency, aided by parallel developments in company law
at national and Community level. The Commission have demonstrated a
reflective approach to reviewing the Directive, in contrast with its hasty
attempts to revise the Acquired Rights Directive, considered below, and the
result has been a well-rounded proposal that will, if adopted, further the
social policy aims of the original measure.
Now let us consider the Acquired Rights Directive, 77/187,427 originally
introduced in the 1970s as a partial harmonisation measure intended to
safeguard the rights of employees in the event of a change of their employer.
The Commission, in a report to the Council in 1992, had pointed to the
inflexibility of the Directive in the event of the transfer of insolvent businesses and in covering transnational transfers.428 As with the review of collective redundancies, the context for this report had been the completion
of the internal market and references in the Social Charter to improvements
in living and working conditions and enhanced worker involvement in
undertakings in connection with corporate restructuring.429 An added
dimension, however, was the quantity of what the Commission described
as emergency case law arising from references to the Court covering areas
of uncertainty in the Directive.430 As a consequence, the revision of the
Directive was to become an increasingly politicised battleground between
those who viewed the process of amendment as a straight-forward updating exercise, notably the trade unions and the European Parliament, and
others, including employers organisations and certain Member States,431
who were fighting a rearguard action to reverse the effects of what they
426

COM(2000) 832, para 4.3.

Dir 77/187/EEC, OJ 1977, L61/26.
428
SEC(92) 857.
429
See the Commissions draft text contained in COM(94) 300 and OJ 1994, C274/10.
Reference is made to points 7,17 and 18 of the Charter.
430
COM(94) 300.
431
In particular, Germany and the UK.
427

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From Maastricht to Amsterdam

regarded as the Courts increasingly protectionist interpretation of the

Directive, particularly its application to the contracting-out of services.432
The publication of the Commissions draft textpresented as a replacement
of the Directive rather than an amendmentthrew a spotlight on the apparent contradiction between the original employment protection aims pursued
by the Directive and the desire of both the Community and Member States
to promote business flexibility, including competitive restructuring, in
pursuit of the objectives set out in the Growth White Paper.433
After considering a series of national expert reports, the Commission
controversially proposed to end what they regarded as the main area of
uncertainty by excluding contracting-out from the scope of the Directive in
the second sentence of the draft Article 1(1), as follows:434
The transfer of only an activity of an undertaking . . . whether or not it was previously carried out directly, does not in itself constitute a transfer within the meaning
of the Directive.

From the Commissions perspective this new clause was a necessary clarification that merely served to codify case law as part of the post-Maastricht
legislative review process.435 The Commissions reference point was
Spijkers where the Court had identified a range of possible factors to determine the central question of whether a business, or part of a business, retains
its identity as a stable economic entity?436 In answering this question the
national court would take account of those factors that indicate whether
its operation is actually continued or resumed by the new employer with
the same or similar activities.437 From this standpoint it would be logical to
argue that the mere transfer of an activity would not in itself establish a
transfer, as it is only one element of the overall equation to be considered
by the national court. This was a narrow and somewhat disingenuous

432
See J Hunt, Success at last? The amendment of the Acquired Rights Directive (1999)
24 European Law Review 215 at 21617. See generally, S Hardy and R Painter, The New
Acquired Rights Directive and its Implications for European Employee Relations in the
Twenty-First Century (1999) 6 Maastricht Journal 366. For application of the Directive in
contracting out cases, see Case C209/91, Rask and Christensen v ISS Kantinservice [1993]
ECR I5755; and Case C392/92, Schmidt v Spar und Leikhasse [1994] ECR I1311.
433
See further, More, n 35 above, 12945.
434
OJ 1994, C274/10, Art 1(1). Emphasis added. The Commissions reasoning was set out
in the seventh recital of the proposal which asserted that: considerations of legal security and
transparency . . . demand, in the light of the case law of the Court . . . that a clear distinction
be made between transfers of undertakings, businesses or parts of businesses and the transfer
of only an activity of an undertaking.
435
See the Commissions background report, ISEC/B2/95, p 5.
436
Case 24/85, Spijkers v Gebroeders Benedik Abbatoir CV [1986] ECR 1119, para 12.
These factors include: the type of business concerned; whether its tangible assets have been
transferred; the value of those assets at the time of transfer; the retention of employees and
customers; and continuation of similar activities.
437
Ibid paras 1114.

Consolidation, Compliance and Enforcement 345

explanation as, in the more recent cases of Rask438 and Schmidt,439 the
Court had applied and, effectively, updated the Spijkers test to cover contracting-out cases where the activity transferred was only an ancillary activity of the transferor or part of a service performed by a single employee with
no transfer of assets.
The Commission premise was therefore incorrect because, as Bercusson
has explained,440 the Directive also covers the transfer of part of a business, a fact not diminished by the Courts gloss of an economic entity test,
which was not to be determined solely by reference to an activity but
rather should reflect the objective of the Directive, which is the protection
of employees rights, not the protection of employers who transfer activities. Therefore, through their selective interpretation of Spijkers, the
Commission were proposing an amendment that would, in practice, have
excluded many contracting-out transfers for commercial reasons, thereby
losing sight of the employment safeguarding aims of the Directive.
The Commissions 1994 proposal was heavily criticised by the European
Parliament, where all the political groups opposed the draft of Article 1(1)
on the grounds that it did not improve legal certainty and, on the contrary,
introduced new sources of uncertainty that might prove detrimental to the
rights of workers and the interests of firms.441 Chastened perhaps by
the strength of opposition, the Commission informed the Parliament in
February 1996 that it would be willing to accept amendments designed to
transform its proposal by deleting the offending clause.442 In the meantime,
however, the timing of the proposal, coinciding with growing opposition in
France and Germany to Schmidt,443 was to have a cautionary effect on the
Court in its ensuing judgments in Rygaard444 and Szen.445
Both cases concerned sub-contracting. In Rygaard a company (SP) that
was contracted to build a canteen sub-contracted the work to another building company (SMA) which, as part of the deal, agreed to buy building

438

Case C209/91 [1993] ECR I5755, para 17.

Case C392/92 [1994] ECR I1311, paras 1317.
440
Bercusson, European Labour Law, n 399 above, pp 24346.
441
Resolution B40033/96 of 18 Jan 1996. See the Explanatory Memorandum to the Commissions revised proposal, COM(97) 60. See also, the critical view taken by ECOSOC in its
Opinion of 9 Mar 1995, CES 317/95. ECOSOC complained that the draft undermines
employees rights in respect of the Directives declared aims. See further, Hunt, n 432 above
at 218.
442
PV (96) 1279. See the Explanatory Memorandum to the Commissions revised proposal,
COM(97) 60.
443
See P Davies, Taken to the Cleaners? Contracting Out of Services Yet Again (1997) 26
Industrial Law Journal 193 at 197.
444
Case C48/94, Rygaard v Str Mlle Akustik [1995] ECR I2745.
445
Case C13/95, Szen v Zehnacker Gebudereinigung GmbH Krankenhausservice [1997]
ECR I1259. On this point, see C de Groot, The Council Directive on the Safeguarding of
Employees Rights in the Event of Transfers of Undertakings: An Overview of Recent Case
Law (1998) 35 Common Market Law Review 707 at 715; Hunt, n 432 above at 219.
439

346 From Maastricht to Amsterdam

materials from SP. Rygaard was informed by SP that SMA would continue
to pay him until the end of his employment relationship. SMA subsequently
dismissed him. Significantly, the Court decided to use this case as an opportunity to extensively review its case law before deciding that its earlier judgments presupposed that the transfer relates to a stable economic entity
whose activity is not limited to performing one specific works contract.446
The transfer of one building works contract would only come within the
terms of the Directive if it included the transfer of a body of assets enabling
the activities in question to be carried out in a stable way. Where an undertaking merely makes available to the new contractor certain works material for carrying out the works there would be no transfer of assets.447
Therefore, the transfer of a body of assets, just one factor to be considered
according to Spijkers,448 and not regarded as essential in Schmidt,449 was
now regarded as a prerequisite in a case involving a transfer under a subcontract. The workers themselves were not deemed to be assets in this
context.
In Szen a company (Z) had contracted with a school (A) to clean the
school buildings. Szen (S) and other cleaners were transferred from the
employ of A to Z. Later, A terminated the contract with Z and negotiated
a new cleaning contract with another company (LG)a so-called second
generation contract. Z sacked S and her colleagues. The Full Court held
that, notwithstanding the reference to the same or similar activities in
Spijkers, the mere fact that the service provided by the old and new
awardees of the contract was similar did not support the conclusion that
an economic entity had been transferred.450 According to the Court, the
term entity refers to an organised grouping of persons and assets facilitating the exercise of an economic activity which pursues a specific objective.451 Using language strikingly similar to that contained in the
Commissions proposed clause, the Court went on to conclude that an entity
cannot be reduced to the activity entrusted to it.452 Its identity emerges
from other factors, such as its workforce, management staff, the way in
which work is organised, its operating methods or the operational resources
made available to it.453 Hence the mere loss of a service to a competitor
cannot . . . by itself indicate the existence of a transfer within the meaning
of the directive.454 In those circumstances, the service does not, on losing
a customer, cease to fully exist and cannot be considered to have transferred
446
447
448
449
450
451
452
453
454

Case C48/94 [1995] ECR I2745, para 20.

Ibid paras 212.
Case 24/85 [1986] ECR 1119, para 12.
Case C209/91 [1993] ECR I5755, para 17.
Case C13/95 [1997] ECR I1259, para 15.
Ibid para 13.
Ibid para 15.
Ibid.
Ibid para 16.

Consolidation, Compliance and Enforcement 347

to the new awardees of the contract.455 By contrast, in certain labourintensive sectors, such as services, a group of workers may themselves
constitute an economic entity because the new employer will have to take
on a major part of the workforce to perform whatever task is required.456
Although Schmidt was not directly overruled in Szen,457 the scope of the
Courts earlier ruling was effectively limited to first-generation contracts
except where a body of assets was transferred or the workers themselves
werecollectivelydeemed to be intrinsic to the economic entity. The
Courts reasoning provides no logical explanation for making a distinction
between first and second-generation contracts as the Court conceded that
the absence of a direct contractual relationship is not conclusive evidence
against a transfer.458 Moreover, business certainty, or indeed flexibility, was
not aided because, as Davies observes, the transferee of the original contract would have to take on the transferors workforce but might have to
retain them if they subsequently lost the contract.459
Paradoxically, the outcome was a form of reverse codification. The Court
was bringing its jurisprudence into line with the projected view of the
Member States, as presented by the Commission and, in the process, adapting the Directive in a manner that accorded with the broader labour market
flexibility agenda. In determining whether or not a transfer had taken place,
the Courts principal concern was the status of the business concerned as
an economic entitya commercial test of its own inventionrather than
the employment test they had applied a decade earlier in Ny Moelle Kro460
has there been a change in the natural or legal person who is responsible
for carrying on the business and who by virtue of that fact incurs the obligations of an employer? The effect of applying a commercial test was to
deem the employee expendable once the direct connection with the original employer had been severed even though the Directive had been designed
to protect them in the event of a change of their employer.
In order to end the uncertainty that it had inadvertently helped to create,
the Commission, having accepted the view of the European Parliament,461
published a revised proposal in February 1997462 followed by a separate
Memorandum based on its assessment of the Courts cumulative case
law on acquired rights.463 After a brief hiatus, to allow for a change of
455

Ibid.
Ibid paras 1821. Applied in Case C234/98, Allen and others v Amalgamated Construction Co Ltd [1999] ECR I8643.
457
For a critique, see Davies (1997, Industrial Law Journal) n 443 above.
458
Case C13/95 [1997] ECR I1259, paras 1112. See Davies, ibid at 195.
459
Ibid.
460
Case 287/76 [1987] ECR 5465, para 12.
461
OJ 1997, C33/81.
462
COM(97) 60. The proposal was to be followed by a consolidated text in accordance
with the inter-institutional agreement on codification, OJ 1995, C43/41 and OJ 1996, C102/2.
463
COM(97) 85.
456

348 From Maastricht to Amsterdam

Government in the UK in May 1997, Directive 77/187 was amended by
Directive 98/50,464 which was unanimously adopted at the culmination of
the British Presidency on 29 June 1998.465 Implementation was due by 17
July 2001 and, in the meantime, both directives have been consolidated in
Directive 2001/23.466
Directive 98/50, and now Directive 2001/23, retains the core definition
of a transfer in Article 1(1)(a)467 while adding two further clauses in paragraphs (b) and (c) although such clarification does not alter the scope of
Directive 77/187/EEC as interpreted by the Court of Justice.468 Article
1(1)(b) provides that, subject to the other provisions in Article 1:
. . . there is a transfer of an economic entity which retains its identity, meaning an
organised grouping of resources which has the objective of pursuing an economic
activity, whether or not that activity is central or ancillary.

Notwithstanding the rider regarding the Courts previous interpretation of

the Directive, by codifying the economic entity test in Szen,469 Article
1(1)(b) now superimposes additional commercial criteria absent from the
original text for the purpose of determining whether or not employees are
safeguarded when restructuring takes place. While the absence of the transfer of a body of assets will not necessarily preclude the existence of a transfer, as the Court acknowledged in Szen, the requirement that there should
be an organised grouping of resources with the objective of pursuing an
economic activity strictly restricts the Courts scope for a teleological interpretation of the safeguarding objective in future cases. In effect, notwithstanding the withdrawal of the contracting out clause, Szen has been
crystallised.
The Courts post-1998 case law takes Szen as a starting point but indicates greater flexibility of interpretation, fully respecting the Spijkers criteria, perhaps reflecting the absence of a specific contracting out exclusion in
the final text of the Directive. For example, in Vidal470 a company terminated a cleaning contract and decided to carry out the work in-house
instead. Having referred to the definition of economic entity in Szen and
464

OJ 1998, L201/88.
The legal base for the Directive was Art 100 [now 94] EC requiring unanimity. For an
account of the process leading up to the adoption of the amended Directive, see Hunt, n 432
above at 21925.
466
OJ 2001, L82/16.
467
Formerly Art 1(1) which states that: This Directive shall apply to any transfer of an
undertaking, business, or part of an undertaking or business to another employer as a result
of a legal transfer or merger.
468
Fourth recital of the preamble of Dir 98/50. See also, the eighth recital of the preamble
of Dir 2001/23.
469
Case C13/95 [1997] ECR I1259, para 13.
470
Cases C127/96, C229/96 & C74/97, Hernndez Vidal SA v Gmez Prez and others
[1998] ECR I8179.
465

Consolidation, Compliance and Enforcement 349

the limited interpretation of an activity in Rygaard,471 the Court distinguished those cases and added a further refinement concluding that:472
Whilst such an entity must be sufficiently structured and autonomous, it will not
necessarily have significant assets, tangible or intangible. Indeed, in certain sectors
such as cleaning, these assets are often reduced to their most basic and the activity
is essentially based on manpower. Thus an organised group of wage earners who
are specifically and permanently assigned to a common task may, in the absence of
other factors of production, amount to an economic activity.

In other words wage earners such as cleaners473 were capable of being

resourcesto use the language in the revised Article 1(b)in sectors
where a test based on manpower was appropriate. Furthermore, in a judgment issued on the same day the Court in the joined cases of Snchez
Hidalgo and Ziemann,474 held that the Directive is capable of applying to
second generation contracting out involving public bodies providing,
respectively, home-help and surveillance services, so long as the operation
is accompanied by the transfer of an economic entity between the two
undertakings.475 There is no need for a direct contractual relationship
between the transferor and the transferee.476 Likewise, in the private sector
context, the Court has held in Temco477 that, providing the economic entity
test is satisfied, it is immaterial whether the transferor is the original contractor or their subcontractor since it is sufficient for that transfer to be
part of the web of contractual relations even if they are indirect.478
In Allen479 the Court was asked to consider whether the Directive covered
a transfer of employees within the same group of mining companies. The
Court held that the Directive could apply to a transfer between two subsidiary companies in the same group where the companies are distinct legal
persons each with specific employment relationships with their employees.480 Although driving in underground tunnels, the main work carried out
by the employees in question, could not be considered an activity based
essentially on manpower, as in Vidal, since it required a significant amount
471

Ibid para 26. See Szen, para 13; and Rygaard, para 20.
Ibid para 27.
473
See also, Case C51/00, Temco Service Industries SA v Imzilyen and others [2002] ECR
I (nyr) judgment of 24 Jan 2002.
474
Cases C173/96, Sanchez Hidalgo ea v Asociacion de Servicios Aser and Sociedad Cooperativa Minerva, and C247/96, Horst Ziemann v Ziemann Sicherheit GmbH and Horst Bohn
Sicherheitsdienst [1998] ECR I8237.
475
Ibid para 34.
476
Ibid para 23. See also, Cases C171172/94, Merckx and Neuhuys [1996] ECR I1253,
paras 28 to 30.
477
Case C51/00, Temco Service Industries SA v Imzilyen and others [2002] ECR (nyr)
judgment of 24 Jan 2002.
478
Ibid para 32.
479
Case C234/98, Allen and others v Amalgamated Construction Co Ltd [1999] ECR
I8643.
480
Ibid para 17.
472

350 From Maastricht to Amsterdam

of plant and equipment, it was clear that, in the mining sector, it was
common for the essential assets required for driving work to be provided
by the mine owner itself. In the circumstances, the fact that there was no
transfer of assets was held not to be decisive.481
In a shift of emphasis, therefore, the Court, in Vidal, Hidalgo, Allen and
Temco, whilst endorsing Szen and Rygaard, was allowing itself, and most
importantly national courts, an opportunity to distinguish these cases on
the facts. There are, however, limits to the Courts post-Szen flexibility.
In Liikenne482 the Court distinguished Allen and applied Szen and Vidal
strictly. Liikenne concerned the re-engagement of bus drivers on less
favourable terms following the tendering out of bus routes in Helsinki. The
Court held that in a sector such as scheduled public transport by bus, where
the tangible assets contribute significantly to the performance of the activity,
the absence of a transfer to a significant extent from the old to the new contractor of such assets, which are necessary for the proper functioning of the
entity, led the Court to conclude that the entity did not retain its identity.483
In addition to the economic entity test in Article 1(1)(b), the application of the Directive to both the public and private sectors is confirmed in
Article 1(1)(c).484 However, the definition of employee in Article 2(1)(d)
remains a matter for Member States.485 In Collino486 the Court referred
directly to this provision, citing the revised Directive,487 and confirmed that,
where the workers in question are subject to public-law status and not
employment law, the Directive may not be applicable to them as this is a
matter for national law.488 Article 1(1)(c) also codifies the Courts ruling in
Henke,489 which excludes transfers where there is merely an administrative
reorganisation of public administration authorities, or a transfer of administrative functions between such authorities.490
481
Case C234/98, Allen and others v Amalgamated Construction Co Ltd [1999] ECR
I8643, para 30.
482
Case C172/99, Oy Liikenne Ab v Liskojrvi and Juntunen [2001] ECR I745. See
P Davies, TransfersThe UK Will Have to Make Up Its Own Mind (2001) 30 Industrial
Law Journal 231.
483
Ibid para 42.
484
The first sentence of Art 1(c) of Dir 2001/23 states that: This Directive shall apply to
public and private undertakings engaged in economic activities whether or not they are
operating for gain.
485
Art 2(1)(d).
486
Case C343/98, Collino and Chiappero v Telecom Italia SpA [2000] ECR I6659.
487
Ibid para 39.
488
Ibid paras 3641. See also, Case 105/84, Foreningen af Arbejdsledere i Danmark v
Danmols Inventar [1985] ECR 2639, para 27.
489
Case 298/94, Henke v Gemeinde Schierke and Verwaltungsgemeinschaft Brocken
[1996] ECR I4989.
490
Henke was distinguished in Case C343/98, Collino and Chiappero v Telecom Italia
SpA [2000] ECR I6659, paras 3235, where the Court held that the Directive applies to a
situation in which an entity operating telecommunications services for public use and managed
by a public body within the State administration is, following decisions of the public authorities, the subject of a transfer for value, in the form of an administrative concession, to a
private-law company established by another public body which holds its entire capital.

Consolidation, Compliance and Enforcement 351

Other changes provide for some enhancements of both the scope of the
Directive and the specific provisions concerning the information and consultation of employees. For example, Article 2(2) of Directive 2001/23 prohibits Member States from excluding employees solely because they are
part-time, fixed-term or temporary workers.491 Article 6 provides for information and consultation rights for employees in the event of bankruptcy or
insolvency proceedings. Under Article 7(4) the information and consultation provisions shall apply regardless of whether the decision resulting in
the transfer is taken by the immediate employer or by an undertaking controlling the employer. Employees also must also be informed, inter alia, of
the reasons for a transfer and its legal, social, and economic implications,
even where there is no employee representative.492
Undoubtedly the most novel feature of the Directive, as revised, is the
flexibility that has been introduced through the inclusion of optional provisions.493 Perhaps the most significant changes can now be found in Article
5 of the consolidated Directive. As a general rule the Directive codifies
the case law concerning transfers of insolvent undertakings. Although
the Directive is silent on the question, the Court in Abels494 held that the
Directive is inapplicable where the transferor is bankrupt or analogous
insolvency proceedings have been instituted. In effect Community law is
pre-empted, in those circumstances, by national insolvency laws that will
normally give priority to the property rights of creditors. Hence, the chances
of the business being saved and some jobs preserved have been deemed by
the Court to override the acquired rights provisions in the Directive.495 At
the pre-insolvency stage, however, even where proceedings have been
launched,496 or where a company has gone into voluntary liquidation,497 the
Directive may still apply.498 It is only at that stage that employees rights
trump creditors rights.
In order to offer some room for manoeuvre, however, Article 5(1) now
provides that, where the core acquired rights provisions in Articles 3 and

491
Within the meaning of, respectively, Dirs 97/81/EC, OJ 1998, L14/9; 99/70/EC, OJ 1999,
L175/43; and 91/383/EEC, OJ 1991, L206/19.
492
Art 7(6).
493
See Hunt, n 432 above at 22829.
494
See Case 135/83, Abels v Bedrijfsvereniging voor de Metaalindustrie en de Electrotechnische Industrie [1985] ECR 469. See also, Case C362/89, dUrso v Ercole Marelli Elettromeccanica Generale [1991] ECR I4105.
495
See P Davies, Acquired Rights, Creditors Rights, Freedom of Contract and Industrial
Democracy (1989) 9 Yearbook of European Law 21 at 45.
496
See Case C472/93, Spano and others v Fiat Geotech and Fiat Hitachi [1995] ECR
I4321.
497
See Case C399/96, Europices v Sanders and Automotive Industries Holding Company
SA [1998] ECR I6965.
498
The test is based on the purpose of the procedure in question in so far as it means that
the undertaking continues or ceases trading. See Case C319/94, Dthier Equipment v Dassy
[1998] ECR I1061. For further discussion, see Barnard, EC Employment Law, n 184 above,
pp 46975.

352 From Maastricht to Amsterdam

4 apply to a transfer during insolvency proceedings, Member States may
promulgate laws permitting the transferee to be indemnified against the
transferors debts as long as the employees concerned receive compensation
consistent with the Insolvency Directive rather than acquired rights under
Article 3(1).499 This would separate the issue from the complexities of
employment law and allow the State in question to socialise the costs of
the employees claims.500 An alternative option is available in such circumstances, and also where the transferor is in a situation of serious economic
crisis short of liquidation proceedings or bankruptcy. This would allow for
negotiation between the transferor, transferee, and the employees representatives, with a view to agreeing to changes in the employees terms and
conditions of employment designed to safeguard employment opportunities
by ensuring the survival of the undertaking or part thereof.501 As an additional safeguard for employees, Member States will be under an obligation
to take measures to prevent the misuse of insolvency proceedings in such a
way as to deprive employees of their rights under the Directive.502
When the Community first decided to review the Acquired Rights Directive the context was the Social Dimension of the internal market and
fulfilling the ambitions of the Social Charter. In this context there was a
powerful case, notwithstanding the UKs opposition, for considerably
strengthening the Directive by limiting the scope for dismissals to be made
on economic grounds and protecting the rights of employees after the transfer rather than merely upon transfer.503 In the eight years from conception
to birth, however, the orientation of the review shifted to codification,
reflectingnot entirely successfullythe commercial emphasis of recent
case law, and adaptability, a central priority of the employment and competitiveness agenda of the second half of the 1990s.504 In the process,
notwithstanding the enhancements to the information and consultation provisions, the substantive safeguarding goals of the original Directive have
been balanced, or even overtaken, by the perceived need for both the public
and private sectors to have more flexibility to restructure in order to be
globally competitive.

(4) Sex Equality

Over the period of the medium-term SAP the Commission introduced
several relatively uncontroversial proposals to legislate in the area of sex
499
500
501
502
503
504

Art 5(2)(a).
See Davies (1989, Yearbook of European Law) n 495 above at 53.
Art 5(2)(b).
Art 5(4).
See More, n 35 above at 145.
See Hunt, n 432 above at 22930.

Consolidation, Compliance and Enforcement 353

equality as a direct response to the case law of the Court. In the area
of equal treatment for men and women in occupational social security
schemes, an unsatisfactory example of politically contrived codification had
already been enacted in the form of the Barber Protocol annexed to the
revised EC Treaty. The Protocol declares that benefits under occupational
pensions schemes shall not be considered as remuneration if and in so far
as they are attributable to periods of employment prior to 17 May 1990.505
The purpose of this financially driven Protocol was to apply the narrowest
possible interpretation to the Courts pronouncement that, while periodic
payments under occupational pension schemes were pay for the purpose of Article 119 [now 141] EC,506 for overriding considerations of legal
certainty507 individuals cannot rely on the direct effect of the equal pay
provisions to claim entitlement to benefits prior to that date unless legal
proceedings had already been initiated or an equivalent claim had been
raised under the applicable national law.508 In effect the extension of the
principle of equal pay, covering the full period of the occupational pension
(or any benefit relating to service before 17 May 1990)509 was deferred for
40 years,510 an interpretation of Barber that the Court, showing awareness
of the political sensibilities, was prepared to endorse in Ten Oever.511 Moreover, the Court has taken an extremely broad view of the range of benefits caught by the Protocol, which applies even when the benefits in
question are deemed to be pay under Article 119 [now 141] EC.512 The
505

Protocol 2. 17 May 1990 being the date of the judgment in Barber. For analysis of the
Protocol, see T Hervey, Legal Issues concerning the Barber Protocol in D OKeeffe and
P Twomey (eds) Legal Issues of the Maastricht Treaty (Wiley, London, 1994) 32937.
506
Case C262/88, Barber v Guardian Royal Exchange [1990] ECR 1889, para 34. For
full discussion of Barber and the surrounding case law, see E Whiteford, Occupational Pensions and European Law: Clarity at Last? in Hervey and OKeeffe, n 305 above, 2134;
B Fitzpatrick, Equality in Occupational Pensionsthe New Frontiers after Barber (1991) 54
Modern Law Review 271; and S Fredman, The Poverty of Equality: Pensions and the ECJ
(1996) 25 Industrial Law Journal 91.
507
Barber, ibid para 44.
508
Ibid para 45.
509
See Case C110/91, Moroni v Collo GmbH [1993] ECR I6591, para 33; Case
C200/91, Coloroll Pension Trustees Ltd v Russell [1994] ECR I4389, para 71. For discussion, see Barnard, EC Employment Law, n 184 above, pp 35963.
510
Hervey in OKeeffe and Twomey (1994) n 505 above at 330.
511
Case C109/91, Ten Oever v Stichting Bedrijfspensioenfonds voor het
Glazenwassers- en Schoonmaakbedrijf [1993] ECR I4879.
512
Case C166/99, Defreyn v Sabena SA [2000] ECR I6155. In Defreyn the Court was
asked to determine the status of an additional pre-retirement payment provided by a collective agreement, rendered compulsory under national law. Ms Defreyn and the Commission
had argued that that this was pay under Art 119 [now 141] EC and therefore that provision
took precedence over the Protocol, allowing backdating to 8 April 1976, the date of the Courts
earlier time-limited judgment on Art 119 EEC in Case 43/75, Defrenne v Sabena II [1976]
ECR 455. The Court, which in an earlier case had found that the payments in question were
not a social security benefit (Case C173/91, Commission v Belgium [1993] ECR I673) held
that, although the payments were caught directly by the Treaty principle, that finding did not
foreclose the application of the Protocol if the payments were deemed to constitute a benefit

354 From Maastricht to Amsterdam

only exception to the Protocol arises from the right to join an occupational
pension scheme which had been established in the earlier case of Bilka,513
and therefore, the Court has subsequently found that the issue of legal certainty arising from Barber does not apply.514 The Member States, driven primarily by financial considerations, favoured a static view of equality that
ignored the continuing effects of past discrimination515 and, in the process,
effectively placed a straightjacket on the Court, setting an unfortunate
precedent for codification of Community social laws.
Barber was also to have direct legislative repercussions.516 Directive
86/378 on equal treatment in occupational social security schemes517 contained two sweeping derogations in Article 9(a) and (b) allowing Member
States to defer the principle of equal treatment concerning the determination of pensionable ages and survivors pensions until equality is achieved
in statutory schemes or a further Directive is adopted requiring equality.
The Commission had challenged these derogations at the time, on the
grounds that they were incompatible with Article 119 [now 141] EC518 and,
following the judgments of the Court in Barber and Ten Oever, it was now
established that, notwithstanding the Directive, the principle of equal pay
applied to occupational pensions and survivors benefits519 under occupational schemes, rendering the specific derogations in Article 9(a) and (b)
otiose, a point specifically confirmed by the Court in Moroni.520 Moreover,
under an occupational social security scheme for the purposes of the Protocol (para 27). The
Court then proceeded to find, at para 28, that the Protocol applied because the payments provided protection against the risk of unemployment by guaranteeing benefits intended to
supplement benefits paid under the state social security scheme, thereby falling within the
definition of occupational security schemes in Dir 86/378 as amended by Dir 96/97 (see below).
513
Case 170/84, Bilka Kaufhaus v Weber von Hartz [1986] ECR 1607.
514
See Case C246/96, Magorrian and Cunningham v EHSSB and DHSS [1997] ECR
I7153, para 28. Further, the Court has held in Case C50/96, Deutsche Telekom AG v
Schrder [2000] ECR I743, at paras 4750, that the limit on retroactivity under Defrenne
II does not preclude national provisions which lay down a principle of equal treatment by
which part-time workers are entitled to retroactive membership of an occupational pension
scheme and to receive a pension under that scheme as the obligation on Member States to
apply Art 119 EEC dated back to 1 Jan 1962.
515
See Fredman (1996, Industrial Law Journal) n 506 above at 105.
516
See D Curtin, Scalping the Community Legislator: Occupational Pensions after Barber
(1990) 27 Common Market Law Review 475.
517
OJ 1986, L225/40.
518
Dir 86/378 was adopted just two months after the Court had held in Case 170/84, Bilka
Kaufhaus v Weber von Hartz [1986] ECR 1607, that access to an occupational pension scheme
was an element of pay within the scope of Art 119 [now 141] EC. See E Cassell, The Revised
Directive on Equal Treatment for Men and Women in Occupational Social Security Schemes
The Dog that Didnt Bark (1997) 26 Industrial Law Journal 269 at 269.
519
In Case C109/91, Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassersen Schoonmaakbedrijf [1993] ECR I4879, the Court held, at paras 1314, that the survivor
was the person asserting the employees right. See also Case C147/95, DEI v Evrenopoulos
[1997] ECR I2057, para 22; and Case C50/99, Podesta v CRICA [2000] ECR I4039,
para 27.
520
Case C110/91, Moroni v Collo GmbH [1993] ECR I6591, para 24.

Consolidation, Compliance and Enforcement 355

exemptions in Article 2(2) of the Directive, relating to individual contracts,
single member schemes and individual insurance schemes were also
invalidated.
Self-evidently, Directive 86/378 had to be amended because the Treaty
takes precedence. The Commissions response was to issue a proposal that
was purely declaratory of the case law.521 Although the Commissions
proposal was heavily criticised by the Womens Rights Committee of
the European Parliament,522 which called for the express application of
the Directive to atypical workers523 and removal of the remaining
derogations,524 the amending Directive, 96/97,525 was adopted with only
minor amendments taking effect from 1 July 1997.
Article 1 of the revised Directive removes the exemptions in Articles 2(2)
and the derogations in Article 9(a) and (b) of Directive 86/378, in respect
of occupational social security schemes for employees,526 but retains them
for the self-employed.527 In strict accordance with the case law, however,
specific derogations have been now been included exempting Additional
Voluntary Contributions (AVCs) deemed not to be pay in Coloroll,528 and,
following Birds Eye Walls,529 supplementary bridging pensions payable to
employees who have retired early on the grounds of ill-health but who are
not yet entitled to a state pension.530 While the removal of these derogations appears, superficially at least to be a victory for equality, there is no
accompanying commitment to levelling-up entitlements notwithstanding
the fact that statistical evidence demonstrates that women are at a distinct
521

OJ 1995, C218/5.
C40422/95. Discussed by Cassell, n 518 above at 2715.
In the view of two AGs the Directive and Art 119 [141] EC provide adequate protection for part-time workers. See the Opinions of AG Van Gerven in Case C57/93, Vroege v
NCIV Instituut voor Volkhuisvesting BV and Stichting Pensionfonds VCIV [1994] ECR
I4541, para 17; and AG Cosmas in Case C435/93, Dietz v Stichting Thuiszorg Rotterdam
[1996] ECR I5223, para 25. Discussed by Cassell, ibid at 2723.
524
For example, the derogation in Art 9(c) permitting the use of different actuarial factors in
calculating entitlements, and Art 9(a) concerning the equalisation of the State retirement age.
525
OJ 1996, L46/20.
526
Art 2(1) as amended by Art 1(1) of Dir 96/97, defines occupational social security
schemes as schemes not governed by Dir 79/7/EEC [concerning statutory social security
schemes] whose purpose is to provide workers, whether employed or self-employed, in an
undertaking or group of undertakings, area of activity, occupational sector or group of sectors
with benefits intended to supplement the benefits provided by statutory social security schemes
or to replace them, whether membership of such schemes is compulsory or optional.
527
Arts 2(a) and 9 as amended.
528
Case C200/91, Coloroll Pension Trustees Ltd v Russell [1994] ECR I4389, para 92.
On the grounds that AVCs are paid into a separate fund administered by occupational pension
schemes, but operating as secure benefits separate from the employment relationship.
529
Case C132/92, Birds Eye Walls Ltd v Roberts [1993] ECR I5579. See Whiteford in
Hervey and OKeeffe, n 506 above at 2933.
530
Art 2(3) as amended. In Case C132/92, Birds Eye Walls Ltd v Roberts [1993] ECR
I5579, the Court, at paras 1720, adopted a narrow formalistic view of equality, determining that there was no discrimination under such schemes because men and women were not
starting from identical positions.
522
523

356

From Maastricht to Amsterdam

disadvantage compared with men in their ability to secure an adequate independent pension in their old age.531 Indeed, in Smith532 the Court endorsed
an employers post-Barber scheme to adjust the pensionable age of women
from 60 to 65 to achieve notional equality with men on the grounds of
consistency, without directly addressing the argument that equality was not
to be achieved by withdrawing rights from women.
Under the amended Article 3, the Directive applies to survivors in accordance with Ten Oever.533 The Barber Protocol is incorporated into Article
2 of the new Directive. In the case of workers who have initiated a claim
prior to 17 May 1990, the retroactive effect is limited to 8 April 1976, the
date of the Courts earlier judgment in Defrenne II.534
In a minor concession to the European Parliament, the amended Article
6(1)(i) allows employers to make higher contributions for women either in
the case of defined-contributions schemes,535 if the aim is to equalise the
amount of the final benefits or to make them more nearly equal for both
sexes, or defined-benefit schemes,536 to ensure the adequacy of the funds
necessary to cover the cost of the benefit. Moreover, while differential sexbased actuarial factors will, in general, continue to be tolerated under the
revised Directive, in accordance with the case law of the Court,537 the Annex
contains examples of inequalities, deemed contrary to the principle of equal
treatment.538 These inequalities relate to certain elements in defined-benefit
schemes arising from the use of actuarial factors differing according to sex
at the time when the schemes funding is implemented.539 Finally, after consultation with the European Parliament, a small gesture towards greater
flexibility can be found in a new Article 9a, inserted by Article 1(6) of Directive 96/97, which allows men and women to claim a flexible pensionable

531

See Fredman (1996, Industrial Law Journal) n 506 above at 91.

Case C408/92, Smith v Advel Systems [1994] ECR I4435. See also, Case C28/93,
Van den Akker v Stichting Shell Pensionenfonds [1994] ECR I4527. Discussed by Fredman,
ibid at 978.
533
Case C109/91, Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassersen Schoonmaakbedrijf [1993] ECR I4879, paras 1314.
534
Case 43/75, Defrenne v Sabena II [1976] ECR 455. Subject to the exceptions in Magorrian and Schrder, n 514 above.
535
Schemes where a fixed percentage of the salary is paid. The lump sum is used to purchase a pension when the employee retires.
536
Schemes where the employee pays a fixed contribution and the employer agrees to pay
benefits set in accordance with a formula.
537
See Case C200/91, Coloroll Pension Trustees Ltd v Russell [1994] ECR I4389; and
Case C152/91, Neath v Hugh Steeper Ltd. [1993] ECR I6935. See the contrary opinion of
AG Van Gerven in Coloroll. See further, B Jones, Sex Equality in Pension Schemes in J Kenner
(ed) Trends in European Social Policy (Dartmouth, Aldershot, 1995) 85144.
538
Art 6(1)(h).
539
The Annex gives the following examples of possible inequalities arising from: conversion into a capital sum of a periodic pension; transfer of pension rights; a reversionary pension
payable to a dependant in return for the surrender of part of a pension; and a reduced pension
where the worker opts to take early retirement.
532

Consolidation, Compliance and Enforcement 357

age under the same conditions. This approach was strongly supported by
the European Parliament, which was concerned about the discriminatory
effects for women of upward equalisation of the retirement age.540
Directive 96/97 is an extremely limited consolidation measure. Its
purpose is reactive and minimalist. The Commission, wary of the political
sensitivity of the Member States in this area, and conscious of the need for
unanimity, opted to dispense with its obligation to make policy and chose
instead to react cautiously to the development of the law by the Court. The
Community has settled for running repairs on Directive 86/378 instead of
starting afresh by addressing the underlying issues of equal treatment in
occupational pensions.541
While Directive 96/97 is an example of a piece of reactive, essentially
defensive legislation, the Burden of Proof Directive, 97/80,542 stemmed from
a longstanding concern, first articulated in the Equal Opportunities Action
Programme of 1981,543 that there was a disparity in the evidential rules concerning the burden of proof in sex discrimination cases across the Member
States and, following the recommendations of an expert report in 1984,544
it was proposed in the Second Action Programme to put forward a legal
instrument to reverse the burden of proof applying to all equal opportunities measures in order to ensure improved application of existing sex equality laws.545
First proposed in 1988, the draft directive was regarded by the Court as
a consolidation of its existing case law.546 In successive cases, the Court has
established the principle that the burden of proving sex discrimination
under Article 119 [now 141] EC and the sex equality directives rests with
the complainant.547 Where, however, the employers system is completely
lacking in transparency, the Court has held, in Danfoss,548 that complainants would be deprived of any effective means of enforcing the principle of equal pay before the national courts if the effect of adducing such

540

See Cassell, n 518 above at 273.

Ibid at 275.
542
OJ 1998, L14/16, amended by Dir 98/52/EC, OJ 1998, L205/66.
543
COM(81) 758.
544
A comparative analysis of the provisions for legal redress in Member States of the European Economic Community in respect of Art 119 of the Treaty of Rome and the Equal Pay,
Equal Treatment and Social Security Directives, V/564/84EN.
545
Second Action Programme on Equal Opportunities for Women (19861990) COM(85)
801, para 19(c).
546
Case 109/88, Handels- og Kontorfunktionaerernes Forbund i Danmark v Danfoss
[1989] ECR 3199, para 14. See R Nielsen and E Szyszczak, The Social Dimension of the
European Community, 2nd edn (Handelshjskolens Forlag, Copenhagen, 1993) p 162.
547
Case 170/84, Bilka Kaufhaus v Weber von Hartz [1986] ECR 1607; Danfoss, ibid; Case
C127/92, Enderby v Frenchay Health Authority [1993] ECR I5355; and Case C400/93,
Dansk Industri (Royal Copenhagen) v Specialarbejderforbundet i Danmark [1995] ECR
I1275.
548
Ibid para 13. See also, Case 318/86, Commission v France [1988] ECR 3559, para 27.
541

358 From Maastricht to Amsterdam

evidence was not to impose on the employer the burden of proving that his
practice in the matter of wages was not in fact discriminatory.
This reasoning was applied in Enderby,549 a case in which public hospital speech therapists in the UKpredominantly femalesought equal pay
with pharmacistspredominantly male. The Court held that:550
The onus may shift when that is necessary to avoid depriving workers who appear
to be the victims of discrimination of any effective means of enforcing the principle of equal pay. Accordingly, when a measure distinguishing between employees
on the basis of their hours of work has in practice an adverse impact on substantially more members of one or other sex, that measure must be regarded as contrary to the objective pursued by [Article 119 [now 141] EC] . . . unless the employer
shows that it is based upon objectively justified factors unrelated to any discrimination on grounds of sex.

Directive 97/80, which largely resurrects the blocked 1988 proposal,

codifies and extends the evidential rule in the areas of equal pay, equal
treatment in employment (but not social security) and, in so far as sex
discrimination is concerned, maternity rights, and parental leave.551 The aim
of the Directive, set out in Article 1, is to ensure that the measures taken
by the Member States to implement the principle of equal treatment are
made more effective. This is to be achieved by enabling all persons who
consider themselves wronged because the principle of equal treatment has
not been applied to them to have their rights asserted by judicial process
after possible recourse to other competent bodies. From the standpoint of
the Community this is a highly ambitious objective as matters of judicial
procedure, including evidential rules, are delegated to the national courts
under the principal of procedural autonomy, to be considered in the next
section. The primary tool in the Directive is Article 4(1) which reformulates the obligation on national courts as follows:
Member States shall take such measures as are necessary, in accordance with their
national judicial systems, to ensure that, when persons who consider themselves
wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed
that there has been direct or indirect discrimination, it shall be for the respondent to
prove that there has been no breach of the principle of equal treatment.

In practice the effect of Article 4(1) is to establish an obligation on Member

States to provide for rules of evidence for courts and other legal bodies that
ensure that the burden of proof switches from the claimant to the respondent once a prima facie case of sex discrimination has been established.552
549

Case C127/92, Enderby v Frenchay Health Authority [1993] ECR I5355, para 19.
Ibid para 14 (emphasis added).
Art 3(1)(a).
552
Art 4(3) provides that the reversal of the burden of proof need not be applied to proceedings in which it is for the court or the competent body to investigate only the facts of the case.
550
551

Consolidation, Compliance and Enforcement 359

Furthermore, Article 4(2) provides that the Directive shall not prevent
Member States from introducing rules of evidence that are more favourable
to plaintiffs.553 Whereas the case law of the Court has been effective in
ensuring, through judicial dialogue, the reversal of the burden of proof in
individual cases, and more generally in systems where active litigation
strategies and a willingness on the part of the national courts to refer have
coincided, the application of the Courts evidential rule has been far from
uniform in the less active Member States.554 Therefore the Commissions
role in monitoring the implementation of the Directive will be critical.
Member States were due to implement the Directive by 1 January 2001,555
or, in the case of the UK, 22 July 2001.556
Article 4(1) is to be read together with the definitions of equal treatment
and discrimination in Article 2. First, Article 2(1) defines equal treatment
as meaning that there shall be no discrimination whatsoever based on sex,
either directly or indirectly. While Article 4(1) refers to the reversal of the
burden of proof in cases of both direct and indirect sex discrimination,
Article 2(2) refers to objective justification only in the context of indirect
discrimination as follows:
For the purposes of the principle of equal treatment . . . indirect discrimination shall
exist where an apparently neutral provision, criterion or practice disadvantages a
substantially higher proportion of the members of one sex unless that provision,
criterion or practice is appropriate and necessary and can be justified by objective
factors unrelated to sex.

Hence, while the burden of proof shifts in all cases where a prima facie case
is established on the facts, the separate question of justification only applies
in those cases where discrimination is indirect. Article 2(2) tends to reinforce the conventional position of the Court that direct sex discrimination
cannot be justified because the detrimental treatment is based on sex leaving
no scope for justification. By contrast, as Ellis has explained,557 in cases of
indirect discrimination the cause of the detrimental treatment is unclear and
the defendant is entitled to show that there is an objective reason for different treatment unrelated to sex. For example, in Dekker558 discrimination

553

Further reinforcement is provided by a non-regression clause in Art 6.

For an excellent overview, see C Kilpatrick, Gender Equality: A Fundamental Dialogue
in S Sciarra (ed) Labour Law in the Courts: National Judges and the European Court of Justice
(Hart, Oxford, 2001) 31130. Kilpatrick identifies Germany and the UK as the most active
for litigation and referral in the area of Community equality law, whereas Spain and Italy are
the least active.
555
Art 7.
556
Art 7, as amended by Art 2 of Dir 98/52/EC, OJ 1998, L205/66.
557
E Ellis, The Definition of Discrimination in European Community Sex Equality Law
(1994) 19 European Law Review 563.
558
Case 177/88, Dekker v Stichting Vormingscentrum voor Jong Volwassenen [1990] ECR
I3941.
554

360 From Maastricht to Amsterdam

on the grounds of pregnancy was found to be directly discriminatory and
therefore incapable of objective justification. In subsequent cases, the Court
has found that dismissals for reasons of pregnancy or as a consequence of
pregnancy amount to automatic direct sex discrimination.559 Nevertheless,
submissions of the Commission,560 pronouncements of AGs561 and ambiguous paragraphs in judgments of the Court562 have raised the possibility that
there may be circumstances where direct discrimination can be justified.
While the Directive is silent on this pointindicating that only indirect
discrimination can be justifiedthe absence of a specific exclusion has kept
the door open for a resurrection of this debate in the future.
Additional problems arise from the definition of indirect discrimination
in the Directive. Article 2(2) emphasises narrow proportional factors based
on statistical evidence within the context of the workplace rather than a
broader disadvantage test, that takes account of wider social factors, such
as the higher proportion of women who are lone parents and responsible
for a child, or the fact that more women than men are employed on shortterm contracts.563 As we shall see in chapter 9, a disadvantage test has been
applied in the more recent anti-discrimination directives.564 The Court,
however, has generally favoured the proportional approach. For example,
in Seymour-Smith and Perez565 the Court defined indirect discrimination as
follows:566
559
See Case C32/93, Webb v EMO Air Cargo [1994] ECR I3567; Case C179/88, Hertz
[1990] ECR I3979. For a contrary view, see R Wintemute, When is Pregnancy Discrimination Indirect Sex Discrimination (1998) 27 Industrial Law Journal 23.
560
See Case C132/92, Birds Eye Walls Ltd v Roberts [1993] ECR I5579; and Webb,
ibid. See further, E Szyszczak, Community Law on Pregnancy and Maternity in Hervey and
OKeeffe, n 305 above, 5162 at 57.
561
For example, AG Van Gerven in Birds Eye Walls, ibid who was concerned that it may
be difficult in certain cases to distinguish between direct and indirect discrimination on the
facts. He concluded that the possibility must not be ruled out that direct discrimination might
nevertheless be justified having regard to the specific circumstances of the case.
562
For example, the Court in Case C32/93, Webb v EMO Air Cargo [1994] ECR I3567,
at para 27, rejected the arguments put forward by the employer for justifying a pregnancy dismissal without directly excluding the possibility of justification. See Szyszczak in Hervey and
OKeeffe, n 560 above at 58.
563
See C Barnard & B Hepple, Indirect Discrimination: Interpreting Seymour-Smith (1999)
58 Cambridge Law Journal 399 at 4057.
564
Dir 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ 2000, L180/22; and Dir 2000/78/EC establishing a
general framework for equal treatment in employment and occupation, OJ 2000, L303/16.
565
Case C167/97, R v Secretary of State for Employment ex parte Seymour-Smith and
Perez [1999] ECR I623.
566
Ibid para 65 (emphasis added). In Jrgensen, a complex Danish case involving the calculation of medical fees based on the turnover of medical practices, the Court held that a separate assessment must be made of each key element of the conditions governing the exercise
of professional activity in so far as those key elements constitute in themselves specific measures based on their own criteria of application and affecting a significant number of persons
belonging to a determined category (Case C226/98, Jrgensen v Foreningen af Speciallger
[2000] ECR I2447).

Consolidation, Compliance and Enforcement 361

. . . in order to establish whether a measure adopted by a Member State has disparate effect as between men and women to such a degree as to amount to indirect
discrimination for the purposes of [Article 119 [now 141] EC], the national court
must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement imposed by that
measure. If that is the case, there is indirect sex discrimination, unless that measure
is justified by objective factors unrelated to any discrimination based on sex.

The Court determined that the question of whether a two-year qualifying

rule for unfair dismissal claims, then operative in the UK, produced a disparate impact on women could be determined by an examination of statistical evidence77.4 per cent of men and 68.9 per cent of women could
comply with the rule at the time when it was introducedwhich suggested
on the face of it that the number of women affected was not considerably
smaller than the number of men during the relevant period of time.567 The
Court rejected the submission of the Commission, which favoured a
broader interpretation of the concept of disparate impact that took
account of social factors.568 The effect of the Directive, therefore, if it is
applied literally by the national courts, is to reinforce the proportional
approach and, potentially, to restrict the scope of the Court to develop the
law on indirect discrimination to tackle the hidden obstacles that stand in
the way of women at work and in society.569
Article 2(2) codifies the concept of justification based on objective
factors unrelated to any discrimination based on sex. Justification limits
the application of the concept of equal treatment because it places those
differently situated beyond the reach of Community law and yet, as Hervey
observes,570 the range of justifications accepted by the Court unduly emphasises market factors which fail to take sufficient account of the fact that
womens domestic and parental roles differ from those of men leading, for
example, to a greater proportion of women part-time workers. For
example, in Bilka571 the Court held that a justification based on a real need
on the part of the undertaking to pay full-time workers more than parttimers in order to encourage full time-work572 related to the objective
pursued and was proportionate.
567
Ibid para 64. The Court had been more sympathetic to claimants in earlier cases where
working hours were linked to promotionCase C1/95, Gerster v Freiestaat Bremen [1997]
ECR I5253; and Case C100/95, Kording v Senator fr Finanzen [1997] ECR I5289but
not paysee Cases C399, 409 and 425/92 and C34, 50 and 78/93, Stadt Lengerich v Helmig
[1994] ECR I5727. See further, E Ellis, Recent Developments in European Community Sex
Equality Law (1998) 35 Common Market Law Review 379 at 3826.
568
Ibid para 57. For a critique see Barnard and Hepple, n 563 above.
569
See Ellis (1998, Common Market Law Review) n 567 above at 383.
570
T Hervey, The Future of Sex Equality Law in the European Union in Hervey and
OKeeffe, n 305 above, 399413 at 4056. See further, T Hervey, Justifications for Sex
Discrimination in Employment (Butterworths, London, 1993).
571
Case 170/84 [1986] ECR 1607.
572
In order to ensure that retail premises were staffed throughout opening times.

362 From Maastricht to Amsterdam

In Enderby573 the Court accepted the state of the employment market
as a justification by the State for pay differentials where there are staff shortages. From this standpoint it is possible to argue, in the broader context of
the European Employment Strategy, that the encouragement of recruitment
and other legitimate social policy aims are capable of objectively justifying
indirect sex discrimination, an approach that has increasingly found favour
with the Court.574 Moreover, in Jrgensen,575 although the Court held that
budgetary considerations cannot, in themselves, justify discrimination by
the State on the grounds of sex, measures intended to ensure sound management of public expenditure on specialised medical care and to guarantee peoples access to such care may be justified if they meet a legitimate
objective of social policy, are appropriate to attain that objective and are
necessary to that end.576
Having opened the floodgates so wide, the Court has limited the scope
for Member States to justify sex discrimination to a certain extent by insisting that mere generalisations and assertions about part-time workers will
be insufficient in the absence of strong evidence.577 Moreover, in SeymourSmith the Court emphasised that, while a broad margin of discretion is left
to the Member States, such justifications cannot have the effect of frustrating the implementation of a fundamental principle of Community law
such as that of equal pay for men and women.578 An example of this
approach can be found in Krger,579 a case where a part-time employee on
child-care leave was denied a Christmas bonus. The Court rejected the
employers justification based on a collective agreement and national law
on part-time work,580 on the grounds that women who work while on childcare leave and who are raising children are put in a worse position than
women who have given up work to care for their children.581
On one level, the Burden of Proof Directive provides a welcome contrast
with the revised Occupational Social Security Directive. Unlike the latter, it

573

Case C127/92 [1993] ECR I5355.

See for example, Case C317/93, Nolte v Landesversicherungsantsalt Hannover [1995]
ECR I4625; Case C444/93, Megner and Scheffel v Innungskrankenkasse Rheinhessen-Pfalz
[1995] ECR I4741; Case C457/93, Kuratorium fr Dialyse und Nierentransplantation eV
v Lewark [1996] ECR I243; Case C278/93, Freers and Speckmann v Deutsche Bundespost
[1996] ECR I1165.
575
Case C226/98, Jrgensen v Foreningen af Speciallger [2000] ECR I2447. Applied in
Case C322/98, Kachelmann v Bankhaus Hermann Lampe KG [2000] ECR I7505.
576
Jrgensen, ibid para 42.
577
See Case C243/95, Hill and Stapleton v Revenue Commissioners [1998] ECR I3739.
578
Case C167/97, Seymour-Smith and Perez [1999] ECR I623, para 75.
579
Case C281/97, Krger v Kreiskrankenhaus Ebersberg [1999] ECR I5127.
580
The same rule had been upheld as a State aim in Case C317/93, Nolte v Landesversicherungsantsalt Hannover [1995] ECR I4625; and Case C444/93, Megner and Scheffel v
Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I4741. These cases were distinguished
because the right to the allowance in this case was determined by a separate collective agreement.
581
Case C281/97, Krger v Kreiskrankenhaus Ebersberg [1999] ECR I5127, para 9.
574

Consolidation, Compliance and Enforcement 363

was introduced as a positive measure designed to address the difficulties
that women face when seeking to rely on Community equality law before
national courts that operate according to a wide array of procedural rules.
Codification of the Courts case law on the reversal of the burden of proof
is designed to achieve a systematic change in national rules of evidence that
the Courts jurisprudenceapplied on a case-by-case basiscannot secure
alone. Codification brings about legal certainty and transparency providing
the law is sufficiently clear.582 At another level, however, as an example of
the wider updating process arising from the White Paper, the Directive
exhibits a tendency towards an over fussy approach to codification that
imperils equality by leading to an ossification of the law, contradicting the
evolutionary character of Community law583 by impeding further refinement
by the Court of its tests on indirect discrimination and justification to take
fuller account of substantive equality goals.

(5) Enforcement of Community Social Legislation

On 27 February 1997 the French car manufacturer, Renault, announced
the closure of its Belgian plant at Vilvoorde with the loss of 3,000 jobs.584
Vilvoorde was highly productive and regarded as an exemplar of flexible
work organisation. Industrial relations appeared to be excellent both locally
and across the company, with a fully functioning European Works Council
(EWC) for transnational information and consultation in place. Renaults
final decision, however, had been taken without prior consultation with
the local works council at Vilvoorde or the EWC. An unprecedented wave
of co-ordinated protest was to follow in both France and Belgium and, in
the meantime, Renaults decision was challenged separately in the Belgian
and French courts on the grounds that it had violated the information and
consultation procedures set out in the directives concerning Collective
Redundancies and EWCs.585 Neither directive creates the capacity to challenge the managerial prerogativeindeed Renault was able to close the
plant in July 1997but the ensuing legal actions raised fundamental questions about the enforcement of Community law rights by national courts
and, in particular, the effectiveness of national systems of sanctions against
blatant violations of the Communitys social legislation.
582
See J Schwarze, The Convergence of the Administrative Laws of the EU Member States
in Snyder, n 151 above, 16382 at 178.
583
Ibid at 177.
584
For full accounts of the events at Vilvoorde, see European Industrial Relations Review
289, February 1998, pp 225; and European Works Councils Bulletin, Issue 9, May/June
1997.
585
Dir 92/56/EEC, OJ 1992, L245/3 amending Dir 75/129/EEC, OJ 1975, L48/29, now
consolidated in Dir 98/59/EC, OJ 1998, L 225/16; and Dir 94/45/EC, OJ 1994, L254/64, now
amended by Dir 97/74/EC, OJ 1998, L10/20.

364

From Maastricht to Amsterdam

In Belgium the Collective Redundancies Directive had been implemented

by a collective agreement that was binding in national law. Under the collective agreement consultation with the local works council was required
before any announcement was made and before any decisions were taken.
Potential sanctions for breaching these procedures amounted to a maximum
of 30 days imprisonment and a fine of BFr4 million (65,953).586 The
Brussels Labour Tribunal found that Renault had breached three separate
collective agreements and two royal decrees but no sanctions were imposed.
Instead the Tribunals solution was to demand that Renault should restart
the consultation procedure with a view to reducing the number of
redundancies and mitigating their effects. In the event a Social Plan was
hastily cobbled together allowing for limited redeployment and early retirement, but 2,900 jobs were lost when the plant was eventually closed. At
the political level new legislation was introduced in Belgium in January
1998 to strengthen the procedural obligations on employers and, where litigation takes place, to switch the burden of proof and guarantee payment
of wages and related benefits during the information and consultation
period.
France was the headquarters of Renault under the EWC agreement.
Members of the EWC therefore brought separate proceedings under French
law before the Nanterre District Court. The Court found that Renault had
violated the transnational information and consultation arrangements in the
EWC agreement and ordered them to pay the EWC a total of Fr15,000
(1,525) plus expenses.587 The Courts decision was later upheld in a condemnatory appeal judgment. However, from the perspective of the workers
involved and the trade unions in Belgium and France this was a pyrrhic
victory.
The Vilvoorde saga illustrated the limitations of Community social law
in the field of information and consultation, spurring strong demands for
further legislation in this area, including the previously stalled proposal for
a national-level worker information and consultation directive.588 Most
significantly, while the Commission applauded the legal actions pursued at
national level, they expressed caution about proposals to strengthen existing legislation and to impose heavier fines on those breaching Community
law. The Commissions caution was a reflection of the delicate balance that
has to be struck between Community rights and national remedies. The
effectiveness of the Community system is ultimately dependent on the
dynamic interrelationship between Community law and national law and,
586

European Industrial Relations Review 289, February 1998, p 22.

Ibid p 24.
588
Now adopted as Dir 2002/14/EC, OJ 2002, L80/29. For the Commissions original proposal, see COM(98) 612, OJ 1999, C2/3. Revised by COM(2001) 296, OJ 2001, C240/133.
587

Consolidation, Compliance and Enforcement 365

in the field of legal remedies, a lack of homogeneity threatens to undermine
the Communitys social policy ambitions.589
The events at Vilvoorde brought a fresh focus to the debate about the
effective application of Community social law. In its White Paper on Social
Policy590 the Commission recognised that, while the psychological impact
on a Member State of an infringement ruling under Article 169 [now 226]
EC,591 or even a fine or penalty payment under the new procedure added
by Article 171(2) [now 228(2)] EC,592 should not be underestimated,593
several Member States were apparently willing to sign up for legislative initiatives so long as enforcement remained lax or protracted.594 Indeed, by the
end of 1993, only Portugal and, somewhat ironically, the UK had transposed over 90 per cent of the 37 applicable employment and social policy
directives.595 Italy and Luxembourg had transposition rates of less than 60
per cent and several other Member States were faring little better.596 In the
589
For discussion see W Van Gerven, Bridging the gap between Community and national
laws: towards a principle of homogeneity in the field of legal remedies (1995) 32 Common
Market Law Review 679; C Harlow, A Common European Law of Remedies in C Kilpatrick,
T Novitz and P Skidmore (eds) The Future of Remedies in Europe (Hart, Oxford, 2000) 6983;
A Tash, Remedies for European Community Law Claims in Member State Courts: Towards
a European Standard (1993) 31 Columbia Journal of Transnational Law 377; B Fitzpatrick,
The Effectiveness of Equality Law Remedies: A European Community Law Perspective
in Hepple and Szyszczak, n 271 above, 6785; and G Tesauro, The Effectiveness of Judicial
Protection and Co-operation between the Court of Justice and National Courts (1993) 13
Yearbook of European Law 1.
590
COM(94) 333.
591
Art 155 [now 211] EC places an obligation on the Commission to ensure that Treaty
provisions and legislative measures are applied and, under Art 169 [now 226] EC, if the Commission considers that a Member State has failed to fulfil a Treaty obligation it shall first pursue
a process of administrative enforcement by delivering a reasoned opinion on the matter after
giving the State concerned the opportunity to submits its observations. The Commissions
discretionary power to seek judicial enforcement only arises if the State concerned does not
comply with the opinion within the period designated by the Commission. At this stage the
Commission may bring the matter before the Court of Justice.
592
Under Art 171(1) [now 228(1)] EC the Court is empowered to issue a ruling that the
State concerned must take the necessary measures to comply with the judgment. Under the
pre-TEU procedure, if the State concerned failed to take these measures, the Commission
would have to restart the whole procedure even though no direct sanction was available. The
TEU, in an important move towards improving the effectiveness of Community law, added
Art 171(2) [now 228(2)] EC permitting the Commission, when bringing a repeat case of noncompliance before the Court, to specify a lump sum or penalty payment to be paid by the
Member State concerned, and placing with the Court the power to impose the lump sum or
penalty payment it considers to be appropriate.
593
See A Arnull, The European Union and its Court of Justice (OUP, Oxford, 1999) p 29.
In the first case brought under Art 171(2) [now 228(2)] EC, Greece has been fined for failing
to comply with directives on toxic waste over a period of 20 years: Case C387/97, Commission v Greece [2000] ECR I5047.
594
See F Snyder, The Effectiveness of European Community Law: Institutions, Processes,
Tools and Techniques (1993) 56 Modern Law Review 19 at 53.
595
COM(94) 333. Ch X, Table 1.
596
Ibid. Respectively, 21 and 22 out of 37. Other notable defaulters were: Greece, 24; Spain,
25; the Netherlands, 26; and Germany, 27.

366

From Maastricht to Amsterdam

high profile area of health and safety at work, where the framework Directive597 was designed to provide a basis for systematic implementation of
detailed directives, the Commission noted that by mid-1994 only one
Member State, France, had transposed all of the Directives in force, while
five had not yet notified measures to transpose the framework Directive
itself.598
The Commissions efforts to throw a spotlight on non-compliance were
only partly motivated by the potential award of a fine or penalty payment
against Member States which, although representing an important addition
to the Courts armoury, is relatively limitedessentially a power of last
resortwhen compared with the much broader principle of state liability
that had recently been established in Francovich599 as an alternative route
for individuals to bring proceedings against a defaulting state before their
national courts.600
Francovich represents a copybook case of non-compliance. By 1988 Italy
had failed to implement 278 out of 622 Community directives. 196 had
passed their implementation date and, in the case of 48, that date had
expired more than five years previously.601 The Insolvency Directive,602
adopted unanimously on 20 October 1980, required implementation by 23
October 1983. Although the Commission contacted Italy one month after
the expiry of the implementation period, a reasoned opinion was not issued
until 19 March 1986. Having rejected an Italian request for more time,
the Commission moved from the administrative to the judicial phase on
29 January 1987. The Court eventually ruled against Italy on 2 February
1989.603 Two months later, 35 employees brought proceedings against Italy
claiming compensation for arrears of salary arising from the insolvency of
their former employer in 1985. The Italian Preture asked two questions.
First, can a directive be enforced against the State in the absence of implementing measures? Second, is a private individual who has been adversely

597

89/391/EEC, OJ 1989, L183/1.

COM(94) 333. Ch X, Table 2. The five Member States were Germany, Greece, Spain,
Ireland and Luxembourg.
599
Cases C6/90 and C9/90, Francovich and Bonifaci v Italian Republic [1991] ECR
I5357.
600
The academic literature on Francovich is extensive and includes the following: C Harlow,
Francovich and the Problem of the Disobedient State (1996) 2 European Law Journal 199;
D Curtin, State Liability under Community Law: a New Remedy for Private Parties (1992)
21 Industrial Law Journal 74; C Lewis and S Moore, Duties, Directives and Damages in European Community Law [1993] Public Law 151; R Caranta, Government Liability after Francovich (1992) 52 Cambridge Law Journal 272; J Steiner, From direct effects to Francovich:
Shifting Means of Enforcement of Community Law (1993) 18 European Law Review 3;
P Craig, Francovich, Remedies and the Scope of Damages Liability (1993) 109 Law
Quarterly Review 595; and M Ross, Beyond Francovich (1993) 56 Modern Law Review 55.
601
See Bercusson, European Labour Law, n 399 above, p 101.
602
Dir 80/987/EEC, OJ 1980, L283/23.
603
Case 22/87, Commission v Italian Republic [1989] ECR 143.
598

Consolidation, Compliance and Enforcement 367

affected by the failure of the State to implement the directive entitled to
claim reparation for the loss and damage sustained as a result?
On 19 November 1991more than 11 years after the adoption of the
Directivethe Court answered no to the first question, on the basis that
the compensation provisions were insufficiently precise to be directly effective, but gave a qualified yes to the second question, finding that irrespective of the absence of direct effect, the full effectiveness of Community rules
would be impaired and the protection of the rights they grant weakened if
individuals were unable to obtain redress when their rights have been
infringed by a breach of Community law for which a Member State could
be held responsible.604 It follows that there is a general right to reparation,
a right that is inherent in the system of the Treaty605 and is also derived
from the obligations of Member States under Article 5 [now 10] EC.606 The
right to reparation for failure to implement a directive in breach of Community law operates on the basis of national rules of liability607 and is
subject to three conditions. First, the result prescribed by the directive
should entail the grant of rights to individuals. Second, it should be possible to identify the content of those rights on the basis of the provisions of
the directive. Third, there must be a causal link between the breach of the
States obligation and the loss and damage suffered by the injured parties.608
In Francovich the breach arising from non-implementation was selfevident and the case for reparation was unambiguous. Would a less culpable Member State be equally liable? This question was particularly resonant
in the light of the Courts case law concerning non-contractual liability
of the institutions under Article 215 [now 288] EC.609 In the joined cases
of Brasserie and Factortame,610 the Court, at the behest of the submissions

604

Para 33.
Para 35. Derived from the principle of effective protection of rights conferred on individualssee Case 106/77, Amministrazione dello Finanze dello Stato v Simmenthal [1978]
ECR 629, para 16; Case C213/89, R v Secretary of State for Transport, ex parte Factortame
[1990] ECR I2433, para 19. See A Arnull, Does the Court of Justice have inherent jurisdiction? (1990) 27 Common Market Law Review 683.
606
Para 36. See Case 6/60, Humblet v Belgium [1960] ECR 559.
607
Paras 423.
608
Para 40.
609
The second paragraph of Art 288 [ex 215] EC provides that: In the case of noncontractual liability, the Community shall, in accordance with the general principles common
to the laws of the Member States, make good any damage caused by its institutions or by its
servants in the performance of their duties.
610
Case C46/93, Brasserie du Pcheur SA v Federal Republic of Germany and Case
C48/93, R v Secretary of State of Transport, ex parte Factortame Ltd [1996] ECR I1029.
For discussion see: E Deards, Curioser and Curioser? The Development of Member State
Liability in the Court of Justice (1997) 3 European Public Law 117; N Emiliou, State Liability under Community Law: Shedding More Light on the Francovich Principle? (1996) 21
European Law Review 399; N Gravells, State Liability in Damages for Breach of European
Community Law [1996] Public Law 567; and P Craig, Once more unto the breach: The
Community, the State and Damages Liability (1997) 113 Law Quarterly Review 67.
605

368 From Maastricht to Amsterdam

of the Commission and several governments,611 took the opportunity to
reconcile the Francovich principle with its own jurisprudence on noncontractual liability of the institutions612 and the general principles of tort
liability in the Member States. In particular, the Court ruled that account
has to be taken of the complexity of situations to be regulated, difficulties
in the application or interpretation of the texts and, more particularly, the
margin of discretion left to the author of the act in question.613 The Court
concluded that where the Member State has a wide margin of discretion
the breach must be sufficiently serious to give rise to liability.614 A breach
would be sufficiently serious where the Member State concerned manifestly and gravely disregarded the limits of its discretion.615 In applying this
test a competent court would take a range of factors into consideration
including: the clarity and precision of the rule breached; the measure of discretion left by that rule to the national or Community authorities; whether
the infringement and the damage caused was intentional or involuntary;
whether any error of law was excusable or inexcusable; the fact that the
position taken by a Community institution may have contributed towards
the omission; and the adoption or retention of national measures or practices contrary to Community law.616 Where the Court had already found an
infringement, the breach would be per se sufficiently serious617 and, as the
Court subsequently found in Dillenkofer,618 the same applied in a case of
non-implementation of a directive, although it must be emphasised that
causation must still be established.619 However, where there is misimplementation rather than non-implementation of a directive, as in British
Telecom,620 a Member State may be able to raise the defence that it acted
in good faith on the basis of arguments that the wording of the directive
in question was ambiguous and there was no clear guidance from the
Community institutions.
611

Para 40.
Para 41.
613
Para 43.
614
Para 51.
615
Para 55. This was in line with the Courts case law on Art 215 [288] ECCases 83 and
94/76 and 4, 15 and 40/77, HNL v Council and Commission [1978] ECR 1209, paras 56.
616
Para 56.
617
Para 57.
618
Cases C178179 and 188190/94, Dillenkofer and others v Federal Republic of
Germany [1996] ECR I4845.
619
On the problem of causation, see Case C319/96, Brinkmann Tabakfabriken GmbH v
Skatteministeriet [1998] ECR I5255; and Case C140/97, Rechberger and Greindl v Austria
[1999] ECR I3499. Discussed by M Dougan, The Francovich right to reparation: The
contours of Community remedial competence (2000) 6 European Public Law 103; and T
Tridimas, Liability for Breach of Community Law: Growing Up and Mellowing Down?
(2001) 38 Common Market Law Review 301.
620
Case C392/93, R v HM Treasury, ex parte British Telecommunications plc [1996] ECR
I1631. See also, Cases C283, 291 and 292/94, Denkavit International BV and others v Bundesamt fr Finanzen [1996] ECR I5063.
612

Consolidation, Compliance and Enforcement 369

In the context of Community directives in the area of employment and
social law, it is important to distinguish between examples of blatant
non-compliance and cases involving other forms of behaviour where, as the
case law on Article 215 [now 288] EC has shown,621 it can be extremely
difficult to establish liability.622 What if the Courts interpretation of a
directive, although not entirely conclusive, throws into doubt the veracity
of a Member States implementing legislation? How clear does a provision
have to be before it generates liability?623 Even if these hurdles can be
overcome in a given case, the fact remains that state liability remains a poor
substitute for the absence of horizontal direct effect of directives for employees who have to bring an action against the Member State in default rather
than the private employer who cannot be held responsible for the States
default,624 notwithstanding the fact that individuals in other Member States
are able to rely on the directive in question. As AG Van Gerven observed
in his Opinion in Marshall II,625 the development of state liability although,
in principle, favourable, does not create equality before the law because
it:626
. . . does not remedy the fact that individuals who are operating in a Member State
which implemented the directive correctly and are therefore bound by the obligations . . . are disadvantaged in comparison with individuals (perhaps their competitors) who are operating in a Member State which has not yet correctly implemented
the directive.

As Ryan627 observes, an employee may strongly prefer their employer to

respect the substance of a given Community law rightcapable of enforcement through a direct contractual claimrather than receive monetary
compensation, at a much later date, from the State. Moreover, the
employees non-contractual claim against the State may be hindered on procedural grounds for, as the Court acknowledged in both Francovich and

621
See Case 5/71, Aktien-Zuckerfabrik Schppenstedt v Council [1971] ECR 975; Cases
83 and 94/76 and 4, 15 and 40/77, HNL v Council and Commission [1978] ECR 1209; Cases
103 and 145/77, Royal Scholten Honig [1978] ECR 2037; Cases 116 and 124/77, Amylum
v Council and Commission [1979] ECR 3497; Case C152/88, Sofrimport v Commission
[1990] ECR I2477; and Cases C104/89 and 37/90, Mulder v Council and Commission
[1992] ECR I3061.
622
See T Hervey and P Rostant, After Francovich: State Liability and British Employment
Law (1999) 25 Industrial Law Journal 259 at 261.
623
See Chalmers, n 3 above, p 418.
624
See Case 152/84, Marshall v Southampton and South-West Hampshire AHA I [1986]
ECR 723; Case C91/92, Dori v Recreb [1994] ECR I3325.
625
Case C271/91, Marshall v Southampton and South-West Hampshire AHA II [1993]
ECR I4367.
626
Ibid. Opinion, para 12.
627
B Ryan, The Private Enforcement of European Union Labour Laws in Kilpatrick et al,
n 589 above, 14163 at 155.

370 From Maastricht to Amsterdam

Brasserie/Factortame, applying earlier case law,628 while there is a Community right to reparation, under the principle of national procedural autonomy, it is for the domestic legal system of each Member State to set the
criteria for determining the procedure to be followed629 and the extent of
the reparation, subject to two overriding principles. Firstly, procedural conditions, such as time limits for bringing proceedings or launching appeals,
must not be less favourable than those relating to similar actions of a
domestic naturethe principle of equivalenceand, secondly, they must
not be framed so as to render virtually impossible or excessively difficult
the exercise of rights conferred by Community lawthe principle of effectiveness. It follows, therefore, that national courts, acting as Community
courts,630 have responsibility for providing an effective remedy for individuals deprived of their Community law rights within the framework of their
national procedures. Hence, so long as it is possible to bring a claim in
accordance with national procedural rules, such as time limits, and the rule
in question is equivalent as between Community law and national law,631
Community law does not preclude reliance on such limits even where the
628
See Case 33/76, Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, para 5;
Case 45/76, Comet v Produktschap voor Siergewassen [1976] ECR 2043, para 13; Case
199/82, Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, para 12;
Case C208/90, Emmott v Minister for Social Welfare [1991] ECR I4269, para 16; Cases
C6/90 and C9/90, Francovich and Bonifaci v Italian Republic [1991] ECR I5357, para 43;
Case C338/91, Steenhorst Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel,
Ambachten en Huisvrouwen [1993] ECR I5475, para 15; Case C410/92, Johnson v Chief
Adjudication Officer II [1994] ECR I5483, para 21; Case 312/93, Peterbroeck v Belgian
State [1995] ECR I4599, para 12; Cases C430431/93, Van Schijndel [1995] ECR I4705,
para 17; and Cases C46/93, Brasserie du Pcheur SA v Federal Republic of Germany and
C48/93, R v Secretary of State for Transport, ex parte Factortame Ltd [1996] ECR I1029,
para 83. For discussion, see FG Jacobs, Enforcing Community Rights and Obligations in
National Courts: Striking the Right Balance in J Lonbay and A Biondi (eds) Remedies for
Breach of EC Law (Wiley, Chichester, 1997) 2536; W Van Gerven, Of rights, remedies and
procedures (2000) 37 Common Market Law Review 501; and A Biondi, The Court of Justice
and certain national procedural limitations: not such a tough relationship (1999) 36 Common
Market Law Review 1271.
629
See Case C54/96, Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft
Berlin mbH [1997] ECR I4961, para 40. For example, in the UK the employee would have
to pursue a claim through the ordinary courts rather than the more accessible employment
tribunals. See Ryan, n 627 above at 157. See further, Hervey and Rostant, n 622 above;
J Convery, State Liability in the United Kingdom after Brasserie du Pcheur (1997) 34
Common Market Law Review 603; and R Craufurd Smith, Remedies for Breaches of EC Law
in National Courts: Legal Variation and Selection in Craig and de Brca, n 68 above,
287320.
630
See I Maher, National Courts as European Community Courts (1994) 14 Legal Studies
226.
631
In Case C326/96, Levez v Jennings (Harlow Pools) Ltd [1998] ECR I7835, the Court
was asked to consider the meaning of the phrase similar domestic actions. The Court ruled,
at paras 427, that the principle of equivalence is not to be interpreted as requiring Member
States to extend their most favourable rules to all actions brought in the field of employment
law. In order to determine whether the principle of equivalence has been complied with the
national court must consider both the purpose and the essential characteristics of allegedly
similar domestic actions. Furthermore, whenever it falls to be determined whether a proce-

Consolidation, Compliance and Enforcement 371

relevant directive has not been implemented in national law.632 Reasonable
time limits can be reconciled with effectiveness on the basis that they constitute an application of the fundamental principle of legal certainty.633 In
return for this latitude, national courts are under a positive obligation to
guarantee judicial protection and the full force and effect of Community
law.634 In particular, Member States must ensure that national courts apply
a system of sanctions that is effective, dissuasive and proportionate.635
The Court is extremely sensitive when adjudging the scope of national
procedural rules, tempering their natural inclination for active judicial
protection of Community law rights with restraint. Article 6 of the Equal
Treatment Directive provides that:636
Member States shall introduce into their national legal systems such measures as
are necessary to enable all persons who consider themselves wronged by failure to
apply to them the principle of equal treatment . . . to pursue their claims by judicial
process after possible recourse to other competent authorities.

Manifestly this clause grants individuals no more than a basic right of access
to bring their case before a court or other competent body capable of
dural rule of national law is less favourable than those governing similar domestic actions, the
national court must take into account the role played by that provision in the procedure as a
whole, as well as the operation and any special features of that procedure before the different national courts. Accordingly, the fact that the same procedural rules applied to two
comparable claims, one relying on a right conferred by Community law, the other on a right
acquired under domestic law, was not enough to ensure compliance with the principle of equivalence, since one and the same form of action is involved. Applied in Case C78/98, Preston
v Wolverhampton Healthcare NHS Trust and others and Fletcher and others v Midland Bank
plc [2000] ECR I3201.
632
See Case C338/91, Steenhorst Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I5475; and Case C410/92, Johnson v
Chief Adjudication Officer II [1994] ECR I5483; cf Case C208/90, Emmott v Minister for
Social Welfare [1991] ECR I4269. Discussed by Jacobs, n 628 above at 29. For examples of
more recent cases where a time limit has been overturned on application of these criteria, see
Case C246/96, Magorrian and Cunningham v EHSSB and DHSS [1997] ECR I7153; and
Preston, ibid. See L Flynn, Whatever Happened to Emmott? The Perfecting of Community
Rules on Time Limits in Kilpatrick et al, n 589 above, 5167.
633
See Case C261/95, Palmisani v Istituto Nazionale della Previdenza Sociale [1997] ECR
I4025, para 28. Applied in Preston, ibid paras 335.
634
Case 106/77, Amministrazione dello Finanze dello Stato v Simmenthal [1978] ECR 629.
See for example, Case C185/97, Coote v Granada [1998] ECR I5199, which involved
alleged victimisation of an ex-employee. The Court ruled that, having regard to the fundamental nature of the right to effective judicial protection, employees enjoy such protection
even after the employment relationship has ended. See M Dougan, The Equal Treatment
Directive: Retaliation, Remedies and Direct Effect (1999) 24 European Law Review 664.
635
See for example, Cases C382 and C383/92, Commission v United Kingdom [1994]
ECR I2435 and [1994] ECR I2479.
636
Dir 76/207/EEC, OJ 1976, L39/40. Emphasis added. By comparison note that, while
Art 2 of the Equal Pay Dir (75/117/EEC, OJ 1975, L45/19) contains an identical clause,
Art 6 of that Directive creates a more precise obligation on the Member States to: take the
measures necessary to ensure that the principle of equal pay is applied. They shall see that
effective means are available to take care that this principle is observed (emphasis added).

372 From Maastricht to Amsterdam

granting an effective judicial remedy.637 In Von Colson,638 however, the
Court furnished Article 6 with a more explicit meaning by ruling that,
although Member States are free to choose between different suitable solutions, and, therefore, while there is no directly effective right to a remedy
arising from Article 6,639 necessary measures must guarantee real and effective judicial protection and must also have a real deterrent effect on the
employer.640 As the Court explained in Marshall II,641 Article 6 places an
implied obligation on Member States to provide a minimum guarantee that
the measures in question should be sufficiently effective to achieve the equality objective and should be capable of being effectively relied upon by the
persons concerned before national courts.642 It followed that, where financial compensation is the measure adopted, it must be adequate, in that it
must enable the loss and damage actually sustained as a result of discrimination to be made good in full in accordance with national applicable
rules.643 Consequently, an arbitrary financial ceiling on compensation levels
and the absence of any power to award interest, as an essential component
of compensation, was deemed inadequate.644
Marshall II represents a high point of the Courts interventionism.645
In subsequent cases the Court has sought to strike a balance by exercising
judicial restraint.646 For example, in the context of Article 6 of Directive
79/7 on equal treatment in social security,647 a near identical aggrieved

637

See Case 222/84, Johnston v Chief Constable of the RUC [1986] ECR 1651, para 58.
Case 14/83, Von Colson and Kamann v Land Nordrhein Westfalen [1984] ECR 1891.
For discussion, see D Curtin, Effective Sanctions and the Equal Treatment Directive: The Von
Colson and Harz Cases (1985) 22 Common Market Law Review 505; Fitzpatrick in Hepple
and Szyszczak, n 589 above; J Shaw, European Community judicial method: its application
to sex discrimination law (1990) 19 Industrial Law Journal 228; and, generally, Craufurd
Smith, n 629 above.
639
Von Colson, ibid para 35. There is, however, a directly effective right of access to
a remedy. See Case 222/84, Johnston v Chief Constable of the RUC [1986] ECR 1651,
para 58. Discussed by Fitzpatrick, ibid at 746.
640
Von Colson, ibid para 23.
641
Case C271/91 [1993] ECR I4367.
642
Ibid para 22.
643
Ibid para 26.
644
Ibid paras 335. As anticipated by Fitzpatrick in Hepple and Szyszczak, n 589 above at
7980.
645
See P Craig and G de Brca, EU Law: Text, Cases and Materials, 2nd edn (OUP, Oxford,
1998) p 229.
646
See M Hoskins, Tilting the Balance: Supremacy and National Procedural Rules (1996)
21 European Law Review 365; A Ward, Effective Sanctions in EC Law: a Moving Boundary
in the Division of Competence (1995) 1 European Law Journal 205; G de Brca, National
Procedural Rules and Remedies: The Changing Approach of the Court of Justice in Lonbay
and Biondi, n 628 above, 3746; C Himsworth, Things Fall Apart: The Harmonisation of
Community Judicial Protection Revisited (1997) 22 European Law Review 291; and E
Szyszczak, Making Europe More Relevant to its Citizens: Effective Judicial Process (1996)
21 European Law Review 351.
647
OJ 1979, L6/24.
638

Consolidation, Compliance and Enforcement 373

claimant648 clause to Article 6 of Directive 76/207, the Court, wary perhaps
of interfering with the structure and organisation of national social systems
and conscious also of the associated cost implications, has exercised caution
by permitting rules that restrict retroactive claims.649 Moreover, in Sutton,650
the Court distinguished Marshall II when asked to determine whether a
backdated award of a social security benefit in the UK should include interest.651 The Court held that, although the Member State was under a duty
to compensate for the loss caused by the breach, they enjoyed discretion as
to the calculation of damages subject to the principles of effectiveness and
equivalence. As the payment in question was a benefit and not compensation under national law the payment of interest on that benefit was not part
of the right of reparation.652
In a similar vein, extending the logic of Sutton to the application of Directive 76/207, the Court in Draehmpaehl653 ruled that a national rule setting
a maximum of three months salary might be adequate where the candidate
who had been discriminated against would not have been appointed to the
job in question because the other candidate was better qualified. Therefore,
notwithstanding the emergence of state liability, considerable legal uncertainty arises from the unpredictable nature of national legal rules and the
Courts increasing tendency towards non-interventionism has left a chasm
between Community rights and national remedies.
One method of bridging the gap, suggested by the Commission in the
medium-term SAP, was to replace general judicial process clauses in social
legislation with a more specific obligation on Member States to impose
sanctions that are effective, proportionate and dissuasive.654 The Commissions attempts to codify the principle in Von Colson and Marshall II were
not initially successful. For example, the Commissions proposal on fixedterm work, arising from the framework agreement signed by the social
partners, included the following draft clause:655
Member States shall determine the range of penalties applicable for infringements
of national provisions made in implementation of this Directive and shall take all
necessary steps to ensure that they are enforced. The penalties must be effective,
commensurate with the infringement, and must constitute a sufficient deterrent.
648

See Fitzpatrick in Hepple and Szyszczak, n 589 above at 71.

See Case C338/91, Steenhorst Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR I5475; and Case C410/92, Johnson v
Chief Adjudication Officer II [1994] ECR I5483; cf Case C208/90, Emmott v Minister for
Social Welfare [1991] ECR I4269.
650
Case C66/95, R v Secretary of State for Social Security, ex parte Sutton [1997] ECR
I2163.
651
Ibid para 23.
652
Ibid paras 24 and 27.
653
Case C180/95, Draehmpaehl v Urania Immobilienservice [1997] ECR I2195.
654
COM(95) 134, para 11.1.8.
655
COM(1999) 203. Draft Art 3.
649

374 From Maastricht to Amsterdam

In the final text of the Directive this clause had been deleted and replaced
with a rather insipid general obligation on Member States to take any necessary measures to enable them at any time to guarantee the results imposed
by this Directive.656 The Member States, anxious to preserve the autonomy
of their national procedures and social systems, appeared to have slammed
the door on the Commissions attempts to codify the Courts more interventionist rulings on remedies. Another explanation, however, for the reticence of the Member States lay with their reluctance to interfere with
framework agreements between the social partners, as discussed in Chapter
6. There was still a chink of light and, when the Commission later proposed a similar but stronger clause in the draft Race Equality Directive657
it was adopted in the final text as follows:658
Member States shall lay down the rules on sanctions applicable to infringements of
the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise
the payment of compensation to the victim, must be effective, proportionate and
dissuasive.

The adoption of this clause,659 with its direct reference to compensation, can
be interpreted as a more extensive form of codification of the Courts existing approach but, as an expression of legislative will, it emphasises, for the
first time, the paramountcy of the effectiveness principle. The ultimate test,
however, will rest with the Member States and their national courts, which
will have, in the context of the Article 13 EC anti-discrimination directives,660 a clear and unambiguous responsibility to introduce and apply
effective sanctions.
Unless and until the Member States and, just as importantly, the national
courts, as part of their inherent jurisdiction, accept their part in ensuring
the full effectiveness of Community law rights on the ground, the jigsaw
of judicial protection of individuals will remain incomplete.661 While the
creation of Community social law, piece by piece, helps to build a body of
social standards, rendered increasingly certain and transparent through
codification, this new legal order can only prove successful if it is enforced
by the Member States as uniformly as possible, pursuant to common
standards.662
656

Art 2 of Dir 99/70/EC, OJ 1999, L175/43.

COM(1999) 564.
658
Art 15 of Dir 2000/43/EC, OJ 2000, L180/22.
659
See also, Art 16 of Framework Dir on Equal Treatment, 2000/78/EC, OJ 2000, L303/16.
660
See ch 9 for further discussion.
661
See D Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces
(1993) 30 Common Market Law Review 17 at 55.
662
See Schwarze, in Snyder n 582 above at 181; cf C Harlow, European Administrative
Law and the Global Challenge in Craig and de Brca (1999) n 68 above, 26185.
657

8
The Treaty of Amsterdam
An Overview
I A MODEST ACHIEVEMENT?

HEN THE INTERGOVERNMENTAL Conference (IGC) was

formally convened in March 19961 the Union was still suffering
from its post-Maastricht melancholia. Less than three years on
from ratification of the TEU, the popular backlash against what was widely
seen as an lite-driven integration process was in full swing.2 According to
a EUROBAROMETER survey of public opinion, just 48 per cent considered the European Union to be a good thing compared with 72 per cent
six years earlier.3 Reviewing the Treaties seemed far less important than the
far more challenging task of renewing the Unions legitimacy. In such inauspicious circumstances it was hardly surprising that the Unions leaders
swiftly dispensed with any grandiose constitutional dreams, real or imaginary, and concentrated instead on the need to respond both symbolically
and practically to the legitimacy crisis. In particular, the Maastricht referenda and popular concerns over the Single Currency had highlighted the
fact that, as Arendt had observed 40 years earlier, people only feel part of
a polity if they feel that they have played a role in its construction.4 Against
this backdrop the immediate challenges for the Union were twofold: firstly,
to become demonstrably more democratic, transparent and accountable in
both its formal and informal methods of consultation, decision-making and
governance and; secondly, to address what Poiares Maduro has described

At the Turin European Council on 29 Mar 1996.

See P Lynch, N Neuwahl and W Rees, Conclusions: Maastricht, Amsterdam and beyond
in P Lynch, N Neuwahl and W Rees (eds) Reforming the European Union: From Maastricht
to Amsterdam (Longman, Harlow, 2000) 23550 at 239.
3
Public Opinion in the EU, Report No 46, Autumn 1996 (European Communities,
Luxembourg, 1997). See further, D Chalmers, European Union Law Volume One: Law and
EU Government (Dartmouth, Aldershot, 1998) p 70.
4
See H Arendt, The Human Condition (University of Chicago Press, Chicago, 1958).
Discussed by I Ward, Amsterdam and the Continuing Search for Community in D OKeeffe
and P Twomey (eds) Legal Issues of the Amsterdam Treaty (Hart, Oxford, 1999) 4155
at 49.
2

376 The Treaty of AmsterdamAn Overview

as Europes social deficit,5 by developing a more inclusive notion of citizenship that elevates shared European social values within an evolving
European constitutional framework.
Set against these expectations, the Treaty of Amsterdam,6 when it eventually emerged 15 months later, appeared, at first sight, to have neither bark
nor bite.7 This was, perhaps, inevitable because, as Shaw notes, the Reflection Group8 and the IGC process offered only a top-down, managerial
vision of legitimacy that was incapable of delivering more than a rather
passive form of citizen consent.9 The leaders of the European Union,
increasingly aware of their own fallibility, rejected a sign now, pay later
approach to Treaty building on this occasion. Pressed with the immediate
need to prepare for eastwards enlargement by revamping the Unions institutional architecture,10 Europes leaders postponed their decision and, by
means of a Protocol, paved the way for yet another IGC in 2000.11 Presented with the opportunity to fundamentally redefine the tri-pillared structure of the European Union, they chose instead to reinforce the historic
compromise reached at Maastricht between the supranational and intergovernmental methods of European integration. While there was much
fanfare for the establishment of an area of freedom, security and justice12
and the Communitarisation of the so-called Schengen acquis,13 a series
of Protocols concerning Denmark, the UK and Ireland allowed for strategic opt-outs.14 Variable geometry, road-tested by the Social Protocol at
5
M Poiares Maduro, Europes Social Self: The Sickness Unto Death in J Shaw (ed)
Social Law and Policy in an Evolving European Union (Hart, Oxford, 2000) 32549 at 341.
6
OJ 1997, C340/1.
7
Ward, n 4 above at 41.
8
See The Reflection Group Report, 5 Dec 1995, SN 520/95 (REFLEX 21).
9
See J Shaw, The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy (1998)
4 European Law Journal 63 at 83.
10
Applications had been received from the Czech Republic, Hungary, Poland, Estonia,
Latvia, Lithuania, Slovenia, Rumania, Bulgaria, Slovakia, Cyprus and Malta.
11
Protocol No 7, annexed to the TEU, EC, ECSC and Euratom Treaties, on the Institutions
with the Prospect of Enlargement of the European Union. For discussion, see R Dehousse,
European Institutional Architecture After Amsterdam: Parliamentary System or Regulatory
Structure? (1998) 35 Common Market Law Review 595; B de Witte, The Pillar Structure and
the Nature of the European Union: Greek Temple or French Gothic Cathedral? in T Heukels,
N Blokker and M Brus (eds) The European Union After Amsterdam: A Legal Analysis (Kluwer,
The Hague, 1998) 5168; and L Gormley, Reflections on the Architecture of the European
Union after the Treaty of Amsterdam in OKeeffe and Twomey (1999) n 4 above, 5770.
12
Title IV EC, Arts 6169, concerning a common visa, immigration and asylum policy (formerly part of the Third Pillar). Measures to establish the area of freedom, security and justice
would be introduced over a five-year period.
13
Protocol No 2 annexed to the TEU and EC Treaty. The Schengen acquis is based on the
Schengen Agreement on external border controls of 1985, the implementing convention of
1990 and decisions taken thereunder.
14
Protocols Nos 35, annexed to the TEU and EC Treaty, concerning, respectively: the UK
and Ireland: Border Controls; UK and Ireland: Visas, Asylum etc; Denmark: Border Controls
and Defence. For comment, see A Toth, The Legal Effects of the Protocols Relating to the
United Kingdom, Ireland and Denmark in Heukels et al, n 11 above, 22752.

A Modest Achievement? 377

Maastricht, was now formalised as a wide-ranging general technique of
flexibility, or closer cooperation, perpetuating the trend towards differentiated integration or a multi-speed Europe.15 Just as Maastricht emphasised subsidiarity rather than centralisation, so Amsterdam placed flexibility
ahead of uniformity.16 Indubitably, for those seeking to unpick the compromises of Maastricht and intensify the integration process ahead of
enlargement without fracturing the Community acquis,17 the long night of
Amsterdam ended on a note of disquiet, even bitter disappointment.18 Even
worse, at least for academic lawyers, the Treaties were to be renumbered
as a means of simplification once the Amsterdam Treaty entered into force
on 1 May 1999, shortly after the Danish electorate had signified their
approval at the first time of asking.19
When examined more circumspectly, however, these failures were modest,
and perhaps inevitable, taking account of the restrictive effect of national
vetoes and the absence of a radical reforming agenda but, as Weiler has
observed,20 there were modest achievements too. Several small steps were
taken towards greater democracy and openness. Among the institutions the
European Parliament was the big winner,21 securing a dramatic extension
of the legislative co-decision procedure,22 thereby reducing but not eliminating the democratic deficit within the Community pillar. The horizontal
principle of open decision-making in Article 1[ex A] TEU was given some
substance by a transparency clause inserted as Article 255 EC, providing a
15

For discussion see, generally, Shaw (1998, European Law Journal) n 9 above; G de Brca
and J Scott (eds) Constitutional Change in the EU: From Uniformity to Flexibility (Hart,
Oxford, 2000); F Tuytschaever, Differentiation in European Union Law (Hart, Oxford, 1999);
and M den Boer, A Guggenbhl and S Vanhoonacker (eds) Coping with Flexibility and
Legitimacy after Amsterdam (EIPA, Maastricht, 1998).
16
See P Craig and G de Brca, EU Law: Text, Cases and Materials, 2nd edn (OUP, Oxford,
1998) pp 478.
17
On the status and scope of the Community acquis post-Amsterdam, see S Weatherill,
Safeguarding the Acquis Communautaire in Heukels et al, n 11 above, 15378. See also, D
Curtin and I Dekker, The EU as a Layered International Organization: Institutional Unity
in Disguise in P Craig and G de Brca (eds) The Evolution of EU Law (OUP, Oxford, 1999)
83136. Curtin and Dekker argue that flexibility arises within the context of a layered international organisation with an overall unitary legal and institutional system.
18
See for example, the foreword by the then serving Italian Prime Minister, Lamberto Dini,
in A Duff (ed) The Treaty of Amsterdam: Text and Commentary (Federal Trust, London, 1997)
pp xxviixxix.
19
55% were in favour, a higher ratio than in either of the Maastricht referendums.
20
See J Weiler, Prologue: Amsterdam and the Quest for Constitutional Democracy in
OKeeffe and Twomey (1999) n 4 above, 120 at 1; and the editorial comments in the
Common Market Law Review, Neither a bang nor a whimper (1997) 34 Common Market
Law Review 767.
21
See K St C Bradley, The European Parliament and Treaty Reform: Building Blocks and
Stumbling Blocks in OKeeffe and Twomey, ibid 12339; and P Dankert, What Parliament
for Europe? in Heukels et al, n 11 above, 1318.
22
Co-decision under Art 251 [ex 189b] EC replaced the co-operation procedure in all areas
except Economic and Monetary Union. In many key areas, however, including the new antidiscrimination clause in Art 13 EC, only the weaker consultation procedure was provided.

378 The Treaty of AmsterdamAn Overview

limited right of access to European Parliament, Council and Commission
documents.23 Further, a Protocol on Subsidiarity and Proportionality, which
codifies post-Maastricht soft law on subsidiarity, obliges the Commission
to consult widely before proposing legislation and, where appropriate, publishing consultation documents.24 Most significantly, while the proposal of
the Comit des Sages for a European bill of rights25 was not taken up at
this stage, the revised Article 6(1) [ex F] TEU now proclaims that:
The Union is founded on the principles of liberty, democracy, respect for human
rights and fundamental freedoms, and the rule of law, principles which are common
to the Member States.

In part this clause serves to act as an insurance policy, providing a condition for accession of new Member States26 and, as a post-accession fallback,
a basis for a new mechanism to suspend Treaty rights in cases of a serious
and persistent breach by a Member State of the principles in Article 6(1).27
Nevertheless, when taken together with the accompanying horizontal obligation on the Union in Article 6(2) [ex F.2] TEU to respect fundamental
rights including the ECHR28now subject to strictly limited judicial supervision29and the evolving conception of Union citizenship,30 Amsterdam
represented an incremental advance, if not a huge leap, towards a fullyfledged human rights policy for the Union.31
Amsterdam marked the first Treaty revision where economic integration
was not a central part of the process.32 Social values, distinct from economic
23
See further, Reg 1049/2001/EC regarding public access to European Parliament, Council
and Commission documents, OJ 2001, L145/43. The Reg is designed, according to the fourth
recital of the preamble, to give the fullest possible effect to the right of public access to
documents in Art 255(2) EC. See also, Protocol No 9, annexed to the TEU, EC, ECSC and
Euratom Treaties, on the Role of National Parliaments in the European Union. This Protocol
requires all Commission proposals and consultation documents to be forwarded for consideration by national parliaments. For a critique of developments in this area, see D Curtin, The
Fundamental Principle of Open Decision-making and EU (Political) Citizenship in OKeeffe
and Twomey (1999) n 4 above, 7191.
24
Protocol No 30 annexed to the EC Treaty. The Commissions obligation to consult applies
in all cases except where there is particular urgency or confidentiality.
25
For a Europe of Civic and Social Rights (European Communities, Luxembourg, 1996).
26
Art 49 [ex O] TEU.
27
Art 7 [ex F.1] TEU.
28
The European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950.
29
Art 46(d) [ex L] TEU extends jurisdiction to the Court over Art 6(2) with regard to the
action of the institutions, insofar as the Court has jurisdiction under the Treaties establishing
the European Communities and this Treaty. See further, B de Witte, The Past and Future
Role of the European Court of Justice in the Protection of Human Rights in P Alston (ed)
The EU and Human Rights (OUP, Oxford, 1999) 85997 at 8845.
30
Arts 1722 [ex 88e] EC. The citizenship provisions were not amended but the concept
remains inherently dynamic.
31
See further, J Weiler and S Fries, A Human Rights Policy for the European Community
and Union: The Question of Competences in Alston, n 29 above, 14765.
32
See Chalmers, n 3 above, p 69.

A Modest Achievement? 379

objectives, helped to fill the Treaty void. Following the timely election of a
Labour administration in the UK, some six weeks before the Amsterdam
meeting, agreement was reached to abolish the Social Protocol and incorporate an updated version of the Agreement on Social Policy into the first
Chapter of Title XI, Articles 136145 EC, replacing in toto Articles 117122.
Hence, in the area of social policy, repatriation of the provisions in the Agreement bucked the general trend towards greater differentiation.33 Further, a
new Title VIII on Employment, Articles 125130 EC, has brought the nascent
European Employment Strategy within the formal scope of the EC Treaty
and, moreover, within the overarching Union framework by virtue of Article
2 [ex B] TEU, which now includes both the promotion of economic and social
progress and a high level of employment among the Unions objectives.34
Perhaps the most important and surprising feature of Amsterdam,
however, was the inclusion of new horizontal clauses in the Principles
section of the revised EC Treaty. Article 2 EC adds equality between men
and women to the Communitys tasks, while Article 3(2) EC mainstreams
the aim of eliminating inequalities and promoting equality between men
and women in each area of the Communitys activities.35 These mainstreaming provisions dynamically interact both with extended provisions in
Article 141 [ex 119] EC, concerning equality between men and women in
working life, and the broader anti-discrimination clause in Article 13 EC
which states that:36
Without prejudice to the other provisions of this Treaty and within the limits of the
powers conferred upon it by the Community, the Council, acting unanimously on
a proposal from the Commission and after consulting the European Parliament, may
take appropriate action to combat discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation.

The simultaneous emergence of mainstreamed provisions intended to

promote equality and combat discrimination within a pluralistic and diverse
33
Although other forms of softer flexibility, such as optional clauses in directives, would
continue to be promoted within the revised Social Chapter. For discussion, see C Barnard,
Flexibility and Social Policy in de Brca and Scott, n 15 above, 197217.
34
See also Art 3 EC which includes the co-ordination of employment policies among the
Communitys activities.
35
See generally, F Beveridge, S Nott and K Stephen, Addressing Gender in National and
Community Law and Policy-making in Shaw, n 5 above, 13554.
36
Emphasis added. There is a wealth of academic literature on Art 13 EC and the surrounding issues. For excellent sources, see: M Bell, The New Article 13 EC Treaty: A Sound
Basis for European Anti-Discrimination Law? (1999) 6 Maastricht Journal 5; L Waddington,
Testing the Limits of the EC Treaty on Non-discrimination (1999) 28 Industrial Law Journal
133; C Barnard, Article 13: Through the Looking Glass of Union Citizenship in OKeeffe
and Twomey (1999) n 4 above, 37594; L Flynn, The Implications of Article 13 ECAfter
Amsterdam Will Some Forms of Discrimination be More Equal Than Others? (1999) 36
Common Market Law Review 1127; and T Hervey, Putting Europes House in Order: Racism,
Race Discrimination and Xenophobia after the Treaty of Amsterdam in OKeeffe and Twomey
(1999) n 4 above, 32949.

380

The Treaty of AmsterdamAn Overview

society sprung from a combination of soft laws, programmatic action and,

as explained in chapter 7, multi-faceted civil dialogue.
Hence, Article 13 EC provides the capacity for an autonomous instrumental response to the totality of discrimination, in the areas within its
scope, with the potential to reverse the trend towards a segmented, hierarchical and market-driven approach to inequality.37 However, it places no
imperative obligation38 on the institutions of the Union to take appropriate action39 and, even where a proposal is put forward, permits national
vetoes and marginalises the prime instigator of the provision, the European
Parliament. In the absence of such an obligation, Article 13 EC is not
directly effective and therefore, by contrast with the nationality discrimination clause in Article 12 [ex 6] EC40 and provisions in other constitutions,41 does not automatically give rise to an exercisable right to
non-discrimination, contrary to the recommendations of the Councils
expert commission on racism.42 Inclusion of the phrase Without prejudice
to the other provisions of this Treaty allows for a clear delineation between
measures under Article 13 EC and more specific sex equality initiatives in
the employment field under Article 141 [ex 119] EC, where QMV and codecision are required, thus avoiding any overlap but raising the spectre of
a hierarchy of equalities laws. Equally, while Article 13 EC is without prejudice to internal market measures under Article 95 EC, its place in the
general provisions of the Treaty allows for its application as a horizontal
instrument to combat discrimination rather than a mechanism for purely
economic integration.
Furthermore, reference to the limits of powers, which equates with competences, is narrower than the term Within the scope of application of this
Treaty in the general non-discrimination clause, Article 12 [ex 6] EC,
reflecting the fact that the latter was initially concerned with maximising the effects of market integration.43 Hence, once a social right is regarded as being instrumental to the guarantee of free movement it must be
37
See U OHare, Enhancing European Equality Rights: A New Regional Framework
(2001) 8 Maastricht Journal 133 at 142.
38
See the European Council Consultative Commission on Racism and Xenophobia, the
Kahn Commission, Final Report Ref 6906/1/95, p 59.
39
In the absence of a specific reference to any legal instrument the presumption must be
that all such instruments are available, by contrast with Art 137(2) EC which refers only to
directives. See Waddington, n 36 above at 137.
40
For a broad interpretation of Art 12 EC, see Case C85/96, Martinez Sala v Freistaat
Bayern [1998] ECR I2691. Discussed by J Shaw, Citizenship of the Union: First Steps in the
European Court of Justice (1998) 4 European Public Law 533.
41
See for example, s 15 of the Canadian Charter of Rights and s 9 of the South African
Constitution. Discussed by Barnard in OKeeffe and Twomey (1999) n 36 above.
42
Ibid. See Bell, n 36 above at 8.
43
See further, G de Brca, The Role of Equality in European Community Law in A
Dashwood and S OLeary (eds) The Principle of Equal Treatment in E.C. Law (Sweet &
Maxwell, London, 1997) 1334.

A Modest Achievement? 381

applied in a non-discriminatory fashion.44 This would suggest that Article
13 EC should not be regarded as a basis for a general Community antidiscrimination law extending beyond the areas of Community competence.45 It should also be noted that while Article 13 EC creates the
potential for the development of a more inclusive non-statist model of
European citizenship46 founded on notions of solidarity, it contains no express reference to third-country nationals, unlike Article 137(3) EC, leaving
open the possibility of measures concerning racism and xenophobia which,
paradoxically, extend only to Union citizens and thereby exclude others
who are deemed non-European.47
Notwithstanding these constraints and uncertainties, the significance of
Article 13 EC as a mechanism for tackling discrimination should not be
understated. Indeed, in many respects, the extended reach of Article 13 EC
surpassed expectations during the negotiations48 and, as we shall see in the
next chapter, has provided a catalyst for wide-ranging, if not comprehensive, programmatic and legislative action flowing from earlier soft law
initiatives. Moreover, these provisions form the basis for a more secure
foundation for human rights in the Treaties49 which, in the context of
employment and social law, must be construed together with the principle
of equality in Article 141 EC and the revised Article 136 [ex 117] EC, which
identifies fundamental social rights, derived from both the European Social
Charter (ESC) and the Community Social Charter,50 as the inspiration for
social policy.
While the rhetoric of fundamental social rights at Amsterdam can be seen
as a counterweight to the economic imperative of the TEU, we need to
44
See Poiares Maduro, n 5 above at 335. For example, see Case C85/96, Martnez Sala v
Freistaat Berlin [1998] ECR I2691 where, at para 63, the Court held that unequal treatment
within the scope of Art 12 [ex 6] EC would include a situation where a decision was made
by a Member State to delay or refuse to grant a child allowance on the grounds that the
claimant was not in possession of a document which nationals of the same State were not
required to have.
45
For example, see Case C152/82, Forcheri v Belgian State [1983] ECR 2323, a case concerning access to education and vocational training courses, where the Court distinguished
between the scope of the Treaty and the competences of the Community by holding, at para
17, that although educational and vocational training is not as such part of the areas which
the Treaty has allotted to the competence of the Community institutions, the opportunity
for such kinds of instruction falls within the scope of the Treaty. Discussed by Bell, n 36
above, at 1214. See generally, S OLeary, The Principle of Equal Treatment on Grounds of
Nationality in Article 6 EC: A Lucrative Source of Rights for Member State Nationals? in
Dashwood and OLeary, n 43 above, 10536.
46
See further, Barnard in OKeeffe and Twomey (1999) n 36 above.
47
By contrast the Kahn Commission, n 38 above at 59, called explicitly for the elimination
of discrimination irrespective of Union citizenship. See Bell, n 36 above, p 19. See further,
Hervey in OKeeffe and Twomey (1999) n 36 above.
48
See Flynn, n 36 above at 112932.
49
Ibid at 1127.
50
In this context the eighth recital of the Social Charter calls for the combating of every
form of discrimination (Social Europe 1/90, ch 2).

382 The Treaty of AmsterdamAn Overview

determine whether there is substance behind these emerging social values
and a realignment of economic freedom and social rights in the EU.51 In
the next two sections of this chapter there will be a brief outline of the main
provisions in the Social Chapter and Employment Title to provide a framework within which to undertake, over the next three chapters, a fuller
analysis of three main strands of employment law and social policy postAmsterdam:
(i)

Combating discriminationnew concepts, new laws and new

hierarchies?
(ii) Reconceptualising sex equality and market integration in the Court of
Justice.
(iii) Employment and labour market policyreinventing social policy
governance?
Finally, in chapter 12, we conclude with an assessment of the potential of
the EU Charter of Fundamental Rights52 to act as a catalyst for the emergence of a European social citizenship based on common values.
II ARTICLES 136145 ECRE-UNIFYING SOCIAL POLICY?

The termination of the Social Protocol was much more straightforward than
its conception.53 At a stroke, the Agreement on Social Policy, now redefined
in Articles 136145 EC, was to revert to its intended place in the scheme
of the Treaties and the Protocol would be no more. Several steps were necessary, however, to deal with the consequences of having separate streams
for social law in the interregnum between Maastricht and Amsterdam.
No immediate solution to the gap in the social acquis was offered at
Amsterdam, but it was agreed in the Presidency Conclusions that a means
would have to be found to give legal effect to the wish of the Member
States to re-unify social policy before the new Treaty entered into force.
Article 100 [now 94] EC, for so long a vital conduit for Community
employment laws in a much earlier age of social policy consensus, was to
prove, once again, to be a convenient means for very short-term ends.
Over the next 18 months brief extension directives were adopted covering the entire legislative output of the Agreement, specifically, European
Works Councils, Parental Leave, Part-time Work and the Burden of Proof
in Sex Discrimination Cases.54 With striking uniformity, the preamble of
51
See M Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and
Social Rights in the EU in Alston, n 29 above, 44972.
52
Adopted as an inter-institutional solemn proclamation in advance of the Nice IGC on
7 Dec 2000: OJ 2000, C364/1.
53
For discussion, see C McGlynn, An Exercise in Futility: The Practical Effects of the Social
Policy Opt-out (1998) 49 Northern Ireland Legal Quarterly 60.
54
Respectively, Dir 97/74/EC, OJ 1998, L10/20; Dir 97/75/EC, OJ 1998, L10/24; Dir
98/23/EC, OJ 1998, L131/10; and Dir 98/52/EC, OJ 1998, L205/66.

Articles 136145 EC 383

each Directive justifies the use of Article 100 [now 94] EC on the basis that
extending the social acquis arising from the Agreement would improve the
functioning of the Common Market by removing a source of distortion of
competition linked to the application of different standards, or, in other
words, social dumping. The fact that the source of this distortion was the
Agreement itself was conveniently overlooked.
For the sake of convenience, the Member States might have opted to
insert the Agreement into the revised Treaty unamended. In practice,
however, several alterations were deemed necessary, subtly reflecting policy
shifts and the evolving case law of the Court in the intervening period.
Article 136 EC differs from the preamble and Article 1 of the Agreement,
which it replaces, in two important respects. First, whereas the express function of the Agreement was to implement the 1989 Social Charter, the first
paragraph of Article 136 EC draws on the Charter as a source of social
rights rather than a foundation for their implementation by declaring that:55
The Community and the Member States, having in mind fundamental social rights
such as those set out in the European Social Charter [and in the] Community
Charter of the Fundamental Social Rights of Workers. . . shall have as their objectives the promotion of employment, improved living and working conditions, so as
to make possible their harmonisation while the improvement is being maintained,
proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.

While retaining the latent Community preference for a general harmonisation of social systems,56 Article 136 EC, like its precursor, Article 117
EEC, serves as a reference point for interpreting other Treaty provisions
without presupposing a rolling programme of social legislation. Moreover,
as with Article 1 of the Agreement, the implementation of measures by the
Community and the Member States shall take account of national diversity, in particular in contractual relations, and the competitiveness of the
European economy.57 Siren calls for either the formal incorporation of
the two Charters,58 or the negotiation of a hybrid social constitution of
Europe,59 were firmly resisted by the Member States who were quite prepared to espouse social rights so long as there was no specific mechanism
55
Emphasis added. Art 136 EC represents a more specific affirmation of a general statement of principle set out in the fourth paragraph of the preamble of the TEU inserted by the
Amsterdam Treaty, whereby the Member States have confirmed their attachment to fundamental social rights as defined in the European Social Charter [and in the] Community Charter
of the Fundamental Social Rights of Workers.
56
Art 136 EC, third paragraph.
57
Art 136 EC, second paragraph.
58
See B Bercusson, S Deakin et al, A Manifesto for Social Europe (1997) 3 European Law
Journal 189. See also, the report of the ad hoc Comit des Sages which called for the incorporation of a negotiated bill of rights encompassing indivisible civic and social rights. For a
Europe of Civic and Social Rights (European Communities, Luxembourg, 1996).
59
See B Hepple, Social Values and European Law (1995) Current Legal Problems 39.

384

The Treaty of AmsterdamAn Overview

for their exercise within the Community legal order. Nevertheless, the inclusion of direct references to the European Social Charter, noticeably absent
from the Maastricht Treaty,60 and the more nebulous concept of fundamental social rights, constitutes a basis for teleological interpretation by
the Court. While Article 136 EC does not allow an individual to rely on
any list of fundamental social rights in a directly effective sense, even after
the subsequent adoption of a non-binding EU Charter of Fundamental
Rights,61 it offers scope for the Court, when interpreting Community law,
to strike down or prohibit any measure or activity which amounts to an
arbitrary violation of clearly understood and accepted social rights.62
Hence, there is the potential, as in the case of attempts to disregard the
general principle of equality,63 to challenge and seek to delimit or prohibit
any future attempts to deregulate Community social laws.
There is a second important change from the Agreement within the first
paragraph of Article 136 EC, which reinstates the direct link between the
objective of improving living and working conditions and the possibility
of harmonisation while the improvement is being maintained. The nonretrogression principle, strangely absent from Article 1 of the Agreement,64
is retained in the form originally derived from Article 117 EEC and continues to act as a bulwark against deregulatory measures in the social policy
field.
Democratisation, the big idea behind the generally cautious Amsterdam
amendments, is a feature of Article 137 EC which, in the main, replicates
the legal bases and related provisions in Article 2 of the Agreement by dividing the scope of supplementary and complementary directives into two
spheres subject to either qualified majority voting (QMV) or unanimity in
the Council.65 However, while the legal bases subject to the unanimity rule
in Article 137(3) EC continue to require only consultation with Parliament,
proposals in those areas listed in Article 137(1) EC are now subject to codecision under Article 251 [ex 189b] EC,66 where Council and Parliament
act jointly as co-legislators, rather than mere co-operation under Article 252
[ex 189c] EC.

60

See the earlier reference in the preamble of the Single European Act, discussed in ch 4.
OJ 2000, C364/1.
62
On the basis that measures incompatible with the protection of fundamental rights thus
recognised and safeguarded [by the Court] cannot be accepted in the CommunityCase
C260/89, ERT [1991] ECR I2925, paras 412.
63
See Case C13/94, P v S and Cornwall CC [1996] ECR I2143, para 20. For further discussion, see ch 10.
64
On this point, see B Bercusson, Trade Union Rights in EU Law in F Snyder (ed) The
Europeanisation of Law: The Legal Effects of European Integration (Hart, Oxford, 2000)
195209 at 204.
65
See the listing in Arts 2(1) and 2(3) of the Agreement, now 137(1) and 137(3) EC, on
p 239.
66
By virtue of Art 137(2) EC.
61

Articles 136145 EC 385

While this modest amendment has been generally welcomed, the exclusion of Parliament from the unaltered provisions concerning the involvement of the social partners in the legislative process is now even more
glaring. The Member States, paying no heed to widely expressed criticisms
concerning the deficiencies in the democracy and representativeness of
management and labour,67 directly transposed Articles 34 of the Agreement in Articles 138139 EC, perpetuating the previously experimental legislative regime introduced at Maastricht.
Article 137 EC also retains provisions allowing for implementation of
directives by national social partners68 and maintaining and introducing
more stringent protective measures compatible with the Treaty.69 Article
137(6) EC replaces Article 2(6) of the Agreement, excluding pay and collective rights from legislation introduced under this Article. Now that the
Community seeks to affirm fundamental social rights under Article 136 EC,
the exclusion of areas such as fair remuneration, the right of association
and the right to strike from Article 137 EC directives, is even more incongruous. Nevertheless, Article 137(6) EC is capable of a narrow interpretation. While the exemption ring-fences legislation proposed under Article
137 EC it does not amount to a blanket exclusion of matters concerning
pay or collective rights from the reach of Community law. For example,
legislation may be permitted if its principal aim is the establishment and
functioning of the common market under Article 94 [ex 100] EC.70 Hence,
in the context of Economic and Monetary Union, a powerful case can be
presented for harmonising national laws on minimum wages in order to
combat market distortions arising from variations between the Member
States. However, in the absence of formal Treaty recognition of collective
labour rights, the limitations of Community law have been made apparent
by AG Jacobs in his opinion in Albany International,71 a case concerning
67

See ch 6.
Art 137(4) EC. Subject to the proviso that the Member State in question will, at any time,
be in a position to guarantee the results imposed by the directive.
69
Art 137(5) EC.
70
See paras 713 of AG Lgers opinion in Case C84/94, United Kingdom v Council
(Working Time Directive) [1996] ECR I5755. This interpretation remains valid even after
the Courts ruling in Case C376/98, Germany v European Parliament and Council (Tobacco
Advertising) [2000] ECR I8419. In that case the Court narrowly defined the scope of Art 95
[ex 100a] EC concerning specific internal market approximation measures but did not address
the broader issue of the scope of more general common market approximation under Art 94
[ex 100] EC. For comment, see ch 3.
71
Case C67/96, Albany International v Stichting Bedrijfspensioenfonds Textielindustrie
[1999] ECR I5751; Cases C115117/97, Brentjens Handelsonderneming BV v Stichting
Bedrijfspensioenfonds voor de Handel in Brouwmaterialen [1999] ECR I6025; and
Case C219/97, Maastschappij Drijvende Bokken BV v Stichting Pensioenfonds voor de
Vervoer-en Havenbedrijven [1999] ECR I6121. For comment, see R Van den Bergh and
P Camesasca, Irreconcilable Principles? The Court of Justice Exempts Collective Labour
Agreements from the Wrath of Antitrust (2000) 25 European Law Review 492; and S
Vousden, Albany, Market Law and Social Exclusion (2000) 29 Industrial Law Journal 181.
68

386 The Treaty of AmsterdamAn Overview

the compatibility of collective labour rights with Community competition
law, discussed earlier both in that context and as part of the interpretation
of the Community Social Charter.72 Drawing on a wide range of international sources of social rights,73 the AG concluded that the Community legal
order protects the right to form and join trade unions and employers associations at the heart of freedom of association.74 It follows that the right to
take collective action in order to protect occupational interests in so far as
it is indispensable for the enjoyment of freedom of association is also protected by Community law.75 However, there is insufficient convergence of
national legal orders and international legal instruments to allow for the
recognition of a specific fundamental right to bargain collectively.76 Therefore, while Article 137(6) EC does not inhibit recognition of collective rights
in the context of competition law, the scope for protection of such rights
by the Community is circumscribed in the absence of specifically recognised
collective rights within the social provisions of the Treaty.77
Article 141 EC radically reformulates both Article 119 EEC and the
poorly drafted Article 6 of the Agreement. What emerges is a wide-ranging
panoply of provisions which, when interpreted together with the gender
mainstreaming objectives78 and the anti-discrimination clause,79 considerably strengthen the Communitys powers to promote sex equality at work
and in society. An immediate symbolic change can be found in Article
141(1) EC which makes explicit the concept of equal value, hitherto implied
by the Court into Article 119 EEC by reference to ILO Convention No
100.80 Drawing directly from Article 1(1) of the Equal Pay Directive81 the
principle has now been reformulated within the Treaty as equal pay for
equal work or work of equal value.82 Rather more importantly, Article
141(3) EC furnishes the sex equality provisions with an autonomous legal
base for the first time in order to facilitate the adoption of:
. . . measures to ensure the application of the principle of equal opportunities and
equal treatment of men and women in matters of employment and occupation,
including the principle of equal pay for equal work or work of equal value.
72

In chs 1 and 4.
Including Art 11 ECHR; Art 6 ESC; Art 22 of the International Covenant on Civil and
Political Rights; Art 8 of the International Covenant on Economic, Social and Cultural Rights;
and Convention Nos 87 and 98 of the ILO.
74
Opinion, para 158.
75
Para 159.
76
Para 160. The AG concluded, at para 161, that the right to collective bargaining is sufficiently protected by the general principle of freedom of contract. The Court did not address
the international instruments in its judgment although it too ultimately concluded that collective agreements per se fell outside the competition rules in Art 81 EC.
77
See E Szyszczak, EC Labour Law (Longman, Harlow, 2000), p 48.
78
Arts 2 and 3(2) EC.
79
Art 13 EC.
80
Art 2 of the Convention as applied in Case 43/75, Defrenne v Sabena II [1976] ECR
455, para 20.
81
Dir 75/117/EEC, OJ 1975, L 45/19.
82
Emphasis added.
73

Articles 136145 EC 387

As with Article 137(1) EC, the new legal base in Article 141(3) EC provides for QMV and co-decision. Somewhat confusingly, Article 141(3) EC
partly duplicates the pre-existing legal base in Article 137(1) EC allowing
for measures concerning equality between men and women with regard
to labour market opportunities and treatment at work.83 Article 141(3)
EC however, is more comprehensive, addressing three elements of the principle of equalityequal opportunities, equal treatment, equal valueand,
perhaps most significantly, is beyond the legislative remit of the social partners, a tacit acknowledgment perhaps of the need to separate sex equality
at work from the corporatist mode of social policy governance.
Most intriguingly, Article 141(4) EC replaces Article 6(3) of the
Agreement with the following:84
With a view to ensuring full equality in practice between men and women in
working life, the principle of equal treatment shall not prevent any Member State
from maintaining or adopting measures providing for specific advantages in order
to make it easier for the under-represented sex to pursue a vocational activity or to
prevent or compensate for disadvantages in professional careers.

This amendment is notable for two reasons. First, by referring to the goal
of full equality in practice it extends the Communitys area of concern
beyond the notion of formal equality, comprising equal opportunity and
equal access, and embraces the philosophy of substantive equality whereby
a remedy is sought to redress the structural advantages perpetuating from
inequality of outcome.85 Secondly, by explicitly endorsing positive action,
it is intended to mitigate the effects of the Courts judgment in Kalanke,86
which appeared to outlaw quota systems favouring women in the German
public service on the grounds that they violated the overriding principle of
equal treatment in Directive 76/207.87 In the longer term this provision may
have a wider impact upon the approach of the Community to the concept
of equality, a prospect that will be explored in Chapter 10. The first signs
were detected with the clarification of Kalanke in the Marschall88 case where
the Court took account of substantive equality considerations, relying on
a 1984 Council Recommendation on positive action for women,89 and

83

Previously contained in Art 2(1) of the Agreement.

Emphasis added. See also, Declaration No 28 annexed to the Treaty which states that:
When adopting measures referred to in Article 141(4) . . . Member States should, in the first
instance, aim at improving the situation of women in working life.
85
For a detailed explanation of these terms, see S Fredman, European Community
Discrimination Law: A Critique (1992) 21 Industrial Law Journal 119; and H Fenwick and
T Hervey, Sex Equality in the Single Market: New Directions for the European Court of
Justice (1995) 32 Common Market Law Review 443.
86
Case C450/93, Kalanke v Freie Hansestadt Bremen [1995] ECR I3051.
87
OJ 1976, L39/40.
88
Case C409/95, Marschall v Land Nordrhein-Westfalen [1997] ECR I6363. Noted by
G More (1999) 36 Common Market Law Review 443.
89
Council Recommendation 84/635/EEC, OJ 1984, L331/34.
84

388 The Treaty of AmsterdamAn Overview

approved positive measures providing they contained a saving clause allowing individual circumstances to be considered.90 While Article 141(4) EC
was not applicable in Marschall it may well have had a subliminal influence on the Courts decision not to follow the AGs advice in his preAmsterdam opinion.91

III ARTICLES 125130EMPLOYMENT AS A MATTER OF

COMMON CONCERN

Title VIII on Employment, Articles 125130 EC, formalises the Essen

process and the emergent European Employment Strategy (EES). Strategically inserted immediately after the closely related provisions on Economic
and Monetary Policy,92 the Employment Title places the objective of
employment promotion at the heart of the Unions endeavours. Moreover,
building on the blueprint provided by the 1994 Council Resolution on
Union Social Policy,93 its working methods are based on gradual convergence not harmonisation, promoting interdependence between all actors,
Community surveillance and benchmarking of best practice. We will evaluate these methods later in chapter 11, but let us first sketch out the main
provisions.
The Employment Title is founded on a decentralising conception of subsidiarity in which the Community enables and the Member States deliver.
Indeed, while placed within the Community pillar, the modus operandi of
the Employment Title is essentially intergovernmental with the European
Parliament marginalised and the Commission a supporting player. For
example, Article 126(2) places responsibility on the Member States whom
shall regard promoting employment as a matter of common concern and
shall co-ordinate their action in this respect within the Council.94 This
terminology is appropriated directly from Article 99(1) [ex 103(1)] EC
whereby Member States shall regard their economic policies as a matter of
common concern also under the co-ordination of the Council. Congruence
between economic and employment objectives is underlined by Article
90
Hence Marschall was distinguished on these grounds in Case C407/98, Abrahamsson
and Anderson v Fogelqvist [2000] ECR I5539.
91
For post-Amsterdam application of Marschall see Case C158/97, Badeck and others v
Hessischer Ministerprsident [2000] ECR I1875. See ch 10 for full discussion of this case
law.
92
Title VII, Arts 98124 [ex 102a109m] EC. Under Art 98 [ex 102a] EC the Member
States must conduct their economic policies with a view to contributing to the objectives
defined in Art 2 EC which include the promotion of a high level of employment. See further,
J Kenner, Employment and Macroeconomics in the EC Treaty: A Legal and Political
Symbiosis (2000) 7 Maastricht Journal 375.
93
OJ 1994, C368/3.
94
Emphasis added.

Articles 125130 EC 389

126(1) EC which requires that employment and labour market policies shall
be consistent with the broad economic guidelines issued annually.95
While the activity of the Member States is placed at the apex of the
Employment Title, the Communitys function is one of facilitation. Under
Article 127(1) EC the Communitys task is to encourage co-operation
between Member States and to support and, if necessary, complement their
action. It follows that, at a strategic level, the EES depends on shared ownership as made explicit in Article 125 EC which states:
Member States and the Community shall . . . work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and
adaptable workforce and labour markets responsive to economic change . . .

Shared commitment, or common concern, creates an onus on the Member

States not only to co-ordinate their macroeconomic and employment policies but, ultimately, to make them fully compatible. Further, just as the
notion of common concern is designed to ensure that no single Member
State can regard employment as a low priority,96 a mainstreaming provision in Article 127(2) EC provides that the objective of a high level of
employment shall be taken into consideration in the formulation and
implementation of all Community policies and activities.
Article 129 EC is the only provision in the Employment Title containing
a specific legal base for the adoption of binding measures. Such measures
are aimed at facilitating convergence by developing exchanges of information and best practice including pilot projects.97 In particular, they shall
not include harmonisation of the laws and regulations of the Member
States. Indeed, it is only in this severely circumscribed area that the
European Parliament can exercise co-decision with the Council.
Article 130 EC provides for the establishment of an advisory Employment Committee with responsibility for co-ordinating and formulating
opinions. The social partners, who have no power to adopt framework
agreements under this Title, are merely bit part players who must be consulted by the Committee, which is made up of experts from the Member
States and the Commission. The Employment Committee, formally established in 2000,98 is quite separate from the reconstituted Standing Committee on Employment where the social partners are formally represented.99

95

Under Art 99(2) [ex 103(2)] EC.

See A Larsson, Employment is a Matter of Common Concern, Employment and
Industrial Relations International, Aug 1997, p 18.
97
In June 2001 the Council reached a common position on a Commission proposal to introduce a package of Community incentive measures, OJ 2001, C301/14.
98
Decision 2000/98/EC, OJ 2000, L29/21. The Employment Committee replaces the
Employment and Labour Market Committee previously established by Decision 97/16/EC, OJ
1997, L6/32.
99
Decision 99/207/EC, OJ 1999, L72/33.
96

390 The Treaty of AmsterdamAn Overview

Article 128 EC incorporates the cyclical Essen process, mirroring the
multilateral surveillance of economic policies in Article 99 [ex 103] EC. The
cycle commences with the production of a joint report from the Commission
and Council on the employment conditions in the Member States.100
Next, based on the conclusions of the European Council, the Commission
issues draft guidelines that Member States shall take into account in their
employment policies.101 The Council adopts the guidelines after consulting the European Parliament, the Economic and Social Committee, the
Committee of the Regions and the Employment Committee. As a prerequisite the employment guidelines must be synchronised with the economic
guidelines.102
Once the employment guidelines have been issued, each Member State
must produce an annual report, or National Action Plan, setting out the
principal measures taken to implement its employment policies in order to
comply with them.103 Examination of these plans and any other evidence is
a matter for the Council and not the Commission. There is an interface
with the Employment Committee, whose views must be received, but there
is no input at this stage from the European Parliament. While the Council
may move to a qualified majority vote on a proposal from the Commission
they are only empowered to adopt non-binding recommendations.104 By
contrast with macroeconomic policy, there is no scope for issuing sanctions
against Member States whose policies are in conflict with the guidelines.105
Finally, the cycle is completed by the next joint report to the European
Council on the implementation of the employment guidelines and the
employment situation in the Community.106
In addition to formalising the EES, the Amsterdam European Council
issued resolutions on a Stability and Growth Pact and Growth and
Employment.107 A further statement, in the Presidency Conclusions, concerned Employment, Competitiveness and Growth.108 These declarations
sought to reconcile employment policy with other strands of Community
activity, notably EMU, and place them on the same footing. Most significantly, the Resolution on Growth and Employment contained a commitment to give immediate effect to the Employment Title, notwithstanding
the Treaty ratification process. An emergency Jobs Summit was swiftly
convened in Luxembourg in November 1997 to kick-start the process.
100

Art 128(1) EC.

Art 128(2) EC.
Art 128(2) EC.
103
Art 128(3) EC.
104
Art 128(4) EC.
105
See in particular the sanctions available against Member States who persistently maintain an excessive budgetary deficit under Art 104 [ex 104c] EC.
106
Art 128(5) EC.
107
OJ 1997, C236/1 and C236/3, respectively.
108
Available at: <http://www.europa.eu.int/council/off/conclu/index.htm>.
101
102

Articles 125130 EC 391

In chapter 11 two elements of the EES will be explored in more depth.
First, the substantive content of the employment guidelines will be considered in the context of the pillars of adaptability, employability, entrepreneurship and equal opportunities, which can be seen as part of a
wider agenda derived most immediately from the Green Paper on the
Organisation of Work.109 Secondly, in the absence of harmonisation and
formal sanctions, the effectiveness of provisions that rely heavily on
cyclical target-setting, surveillance and benchmarking, a form of soft law
that has become known as the open method of co-ordination, will be
evaluated in the context of the Unions Social Policy Agenda adopted at the
Nice IGC in December 2000.110 The new Agenda seeks to apply the open
method horizontally across social, employment and macroeconomic
policies, marking a new phase in the social policy governance of the Union
based on a combination of co-ordination, convergence and harmonisation.
109
110

COM(97) 128.
Presidency Conclusions, Annex I, p 3.

9
Combating DiscriminationNew
Concepts, New Laws, New
Hierarchies?
I ARTICLE 13 ECAN EMPTY VESSEL?

N THE WEEKS and months after the summiteers had departed from
Amsterdam there was much prognostication about the destiny of Article
13 EC. In the absence of any compulsion on the Council to act or take
any prescribed form of action, those advocating legislation and programmes
to combat discrimination had good reason to fear that the new provision
would be an empty vessel, serving as a latent reminder of the capriciousness of Treaty negotiations. For the Commission, charged with the task of
persuading the Council to take appropriate action, the immediate challenges presented by this enigmatic new provision were both practical and
political.
On a practical level a strategic decision had to be made on the form,
timing and material scope of any proposals for action. In the absence of
any Treaty reference to a specific legal instrument should binding or nonbinding measures be proposed? Was it appropriate to blend harmonisation with programmatic action? What forms of discrimination should be
combated? Above all, should action be verticalspecific to individual heads
of discriminationor horizontal? Acting horizontally would help to achieve
a balance between equality and effectiveness.1
In relation to material scope, Article 13 EC is capable of a horizontal
application in at least four respects. Firstly, it allows specific measures to
combat discrimination indivisibly across policy areas within the limits of
powers conferred by the Treaty. The European Parliament suggested that a
directive might cover the fields of employment, education, health care,
social security, housing and public and private services.2 By acting
1
See M Bell, Anti-discrimination Law after Amsterdam in J Shaw (ed.) Social Law and
Policy in an Evolving European Union (Hart, Oxford, 2000) 15770 at 169.
2
Resolution on racism, xenophobia and anti-Semitism and the results of the European Year
Against Racism, OJ 1998, C56/35, point 8.

394 Combating Discrimination

horizontally the Community would be able to transcend traditional
legislative boundaries and remove artificial distinctions between discrimination in employment and wider society. Secondly, common antidiscrimination provisions can be introduced across the different listed
grounds, an approach that is responsive to the fragmentary and complex
nature of discrimination as actually experienced by individuals who do not
easily fit into all too often stereotyped categories because, for example, they
face prejudice because of their race, gender and social background3 or their
religious or other beliefs and sexual orientation. Unless multiple or intersectional4 discrimination is tackled, the result will be an inconsistent, fragmented and hierarchical corpus of legal protection. Indeed, as Bell5 notes,
measures which extend protection against certain grounds of discrimination, but not others, may be regarded as creating discrimination in law.
Thirdly, Article 13 EC has created firm grounds for indirect measures, such
as equal opportunities clauses in community legislation.6 Fourthly, the term
combat discrimination indicates a need for the Community to take active,
even pre-emptive, mainstreaming measures in all policy areas,7 such as the
internal market, where disability needs should be taken into account,8 or
police and judicial co-operation in criminal matters under the Third Pillar,
where there is now an additional obligation to pursue actions aimed at
preventing and combating racism and xenophobia.9
3
See further, S Fredman and E Szyszczak, The Interaction of Race and Gender in B Hepple
and E Szyszczak (eds) Discrimination: The Limits of Law (Mansell, London, 1992) 21426.
4
This term is used by North American writers who advocate a multidimensional approach
to discrimination that transcends traditional stereotypical categorisations of disadvantaged
groups within a rigid and unresponsive legal framework. See K Abrams, Complex Claimants
and Reductive Moral Judgments: New Patterns in the Search for Equality (1996) University
of Pittsburg Law Review 337; and K Crenshaw, Demarginalizing the Intersection of Race and
Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist
Politics (1989) University of Chicago Legal Forum 139.
5
Bell in Shaw, n 1 above at 158.
6
As proposed in the 1995 Commission Communication on Racism, Xenophobia and AntiSemitism, COM(95) 693. See L Waddington, Testing the Limits of the EC Treaty Article on
Non-discrimination (1999) 28 Industrial Law Journal 133 at 143. An early example of this
approach can be found in the Broadcasting Dir 89/552/EEC, OJ 1989, L298/23, which provides, inter alia, at Art 12 that television advertising must not include any discrimination on
grounds of race, sex or nationality, nor offend any religious or political beliefs. See G de Brca,
The Role of Equality in European Community Law in A Dashwood and S OLeary (eds) The
Principle of Equal Treatment in E.C. Law (Sweet & Maxwell, London, 1997) 1334 at 2930.
See also, the Commissions proposal to amend Reg 1612/68 on free movement of workers,
COM(98) 394, OJ 1998, C344/9, where it is noted, in draft Art 1a, that: Within the scope
of this Regulation, all discrimination on grounds of sex, racial or ethnic origin, religion, belief,
disability, age or sexual orientation shall be prohibited.
7
See Waddington, ibid at 138.
8
See the Disability Declaration attached to the Amsterdam Treaty. See further,
Waddington, ibid at 144.
9
Art 29 [ex K.1] TEU. On 15 July 1996 the Council adopted a Joint Action (96/443/JHA)
under which Member States have undertaken to ensure effective judicial protection in respect
of offences based on racist and xenophobic behaviour, OJ 1996, L185/5.

Article 13 ECAn Empty Vessel? 395

Setting political considerations to one side, the extent to which a horizontal approach is desirable may be determined by the level of detail in any
proposed measure. Each ground for discrimination has specific characteristics which are not necessarily shared with all other grounds.10 Bell has suggested horizontal framework directives setting out the basic rules forbidding
discrimination to be followed up by vertical measures tailored to combat
discrimination in specific areas.11 Such an approach would be consistent
with the principle of subsidiarity, allowing the Member States to exercise
some discretion and flexibility on implementation.12
Ultimately, however, the question of what is appropriate action must be
politically determined by the Council and is unlikely to be amenable to judicial review.13 For the Commission, the immediate political challenge was to
produce a coherent package of legislative and programmatic measures
both horizontal and verticalaround which a consensus in the Council
could be formed. Initially the prospects were uncertain. During the negotiations at Amsterdam there was general support for action to combat racism
and xenophobia, as recommended by the Councils Kahn Commission,14
but reservations were expressed about some of the other areas proposed in
the draft clause, including disability and sexual orientation.15 Indeed a reference to social origin had been dropped.16 By adopting Article 13 EC, the
Member States were able to respond to a highly effective lobbying exercise
without accepting any obligation to implement non-discrimination outside
the area of sex equality.17
Set against this backdrop, the Commissions initial moves were tempered
by caution. In the Social Action Programme 19982000,18 action under
the Employment Title was placed at the top of the agenda and, within this
framework, initial steps under Article 13 EC were posited as a contribution to promoting an inclusive society to underpin the Unions labour
market strategy.19 Action to combat discrimination and promote equality
was required not simply to achieve social justice, but to enable all to
10

Bell in Shaw, n 1 above at 158.

Ibid.
12
Ibid at 167.
13
See L Flynn, The Implications of Article 13 ECAfter Amsterdam Will Some Forms of
Discrimination be More Equal Than Others? (1999) 36 Common Market Law Review 1127
at 1136.
14
European Council Consultative Commission on Racism and Xenophobia, the Kahn
Commission, Final Report Ref 6906/1/95
15
Flynn, n 13 above at 1132.
16
Ibid. Flynn suggests that this ground was intended to protect the travelling or gypsy community.
17
See G More, The Principle of Equal Treatment: From Market Unifier to Fundamental
Right? in P Craig and G de Brca (eds) The Evolution of EU Law (OUP, Oxford, 1999)
51753 at 547.
18
COM(98) 259.
19
Part III.3.
11

396 Combating Discrimination

participate in the economic well being of societies. In this context, the
Commission sought to maximise the possibilities for success by proposing
a vertical legislative measure to combat racial discrimination,20 building on
the momentum of the 1997 European Year against Racism and the establishment of the European Monitoring Centre on Racism and Xenophobia.21
In the meantime, while awaiting ratification of the new Treaty, the
Commission proposed to launch a broad debate on the use of Article 13
EC including the possibility of a framework programme to combat all
forms of discrimination.22
In July 1999, shortly after ratification of the Treaty, the Commission published a call for proposals to help prepare for possible action under a future
Community programme to combat discrimination.23 Through a process of
attrition the Commission hoped to pave the way for a multidimensional
approach to tackling discrimination as opposed to the target-group specific
policy of the past.24 There was no immediate prospect of a horizontal
proposal and yet, within a matter of weeks, the political landscape was
transformed.
On 3 October 1999, the far-Right, anti-immigration, Freedom Party
(FPO) won a share of power in Austria. Paradoxically, this dissonant event
was to render progress under Article 13 EC more, not less, likely. The FPOs
victory presented the EU with an immediate challenge to show that it meant
business when asserting its commitment to respect for human rights and
fundamental freedoms in Article 6 [ex F] TEU. On the one hand, Member
States who wished to be seen to act to isolate Austria diplomatically could
hardly resist proposals designed to combat the kind of discrimination
that the FPO was espousing. On the other hand, Austrias mainstream
Christian-Democrat leadership, seeking to combat their isolation, had an
opportunity to demonstrate their human rights credentials by supporting
such proposals. Parallel developments added to the momentum.25 In the
Council of Europe agreement was reached to insert a general right to
non-discrimination into the European Convention on Human Rights.26
20
See also the Commissions earlier Action Plan Against Racism where this strategy was
outlined in more detailCOM(98) 183.
21
Reg 1035/97/EC establishing a European Monitoring Centre on Racism and
Xenophobia, OJ 1997, L151/1.
22
COM(98) 259, Part III. 3.
23
OJ 1999, C191/21, para II.
24
Ibid.
25
Developments at national level were also a factor. For example, in the UK, the Government agreed to implement a wide-ranging report into systemic failures arising from an investigation into a racist murder: Stephen Lawrence Inquiry (1999) Report of an Inquiry by Sir
William MacPherson of Cluny, London, HMSO, Cm 3684.
26
Protocol No 12 supplementing the non-discrimination clause in Art 14 ECHR. The Protocol, which was formally adopted by the Council of Ministers in June 2000, provides in Art
1 that: The enjoyment of any right set forth by law shall be secured without discrimination
on any ground such as sex, race, colour, language, religion, political or other opinion, national

Article 13 ECAn Empty Vessel? 397

Meanwhile the Union wished to be portrayed positively at a forthcoming
UN World Conference against Racism, Racial Discrimination, Xenophobia
and Related Intolerance.27
The Commission was now under pressure from the Council to rapidly
firm up its tentative proposals, redesigned as part of the Unions human
rights strategy. An extraordinary European Council at Tampere, on 15/16
October 1999, invited the Commission to come forward as soon as possible with proposals to implement Article 13 EC as part of the fight against
racism and xenophobia. Moreover, the timely publication of the Councils
first Annual Report on Human Rights (199899)28 placed action under
Article 13 EC centre-stage, amounting to a huge opportunity to promote
fundamental rights and fight discrimination.29 Having latched onto Article
13 EC as a vehicle for furthering a wider human rights agenda, the report
concluded that progress in this area was essential as a means of championing diversity on the basis that racism, xenophobia and intolerance are
the antithesis of what the EU stands for and, moreover, the principle of nondiscrimination, as a general principle of Community law, is at the centre of
the EUs understanding of human rights.30
Within a matter of weeks, on 25 November 1999, the legislative package
was formally launched.31 The Commission were acutely aware of the
opening of a window of opportunity arising from the publication of the
Annual Report and the launch of negotiations on a draft EU Charter of
Fundamental Rights.32 Echoing the language of the Court in P v S and Cornwall CC,33 the primary justification for the package was to formally recognise that the right to equality before the law and the protection of
all persons against discrimination constitutes a fundamental right and is
or social origin, association with a national minority, property, birth or other status. The
Parliamentary Assembly, in a debate on 27 January 2000, expressed reservations about the
Protocol because of the absence of any reference to sexual orientation in the grounds listed.
See the Council or Europe Press Release available at: <http:press.coe.int/>. For discussion, see
U OHare, Enhancing European Equality Rights: A New Regional Framework (2001) 8
Maastricht Journal 133 at 13442.
27
See UN General Assembly Resolution 52/111 of 12 Dec 1997. The Conference
was held in Durban on 31 Aug8 Sept 2001. Documentation is available at:
<http://www.unhchr.ch/pdf/Durban.pdf>.
28
The full report, covering the period from June 1998 to 30 June 1999, is available on the
Councils website at: <http://ue.eu.int/pesc/human_rights/en/99main1.htm>.
29
Point 3.5.
30
Ibid.
31
COM(99) 564.
32
Presidency Conclusions, Tampere European Council, 1516 Oct 1999, Annex.
33
Case C13/94 [1996] ECR I2143. In a case concerning the right of a transsexual to rely
on the principle of non-discrimination in Directive 76/207/EC on Equal Treatment between
Men and Women (OJ 1976, L39/40) the Court held that: To tolerate [discrimination against
transsexuals] would be tantamount, as regards such a person, to a failure to respect the dignity
and freedom to which he or she is entitled, and which the Court has a duty to safeguard (para
22). For further discussion, see ch 10.

398 Combating Discrimination

essential to the proper functioning of democratic societies.34 Such action
would also help to address the crisis of legitimacy by associating all citizens with the ideals of the Union and showing that, in the context of
enlargement principles must be more than simple words.35 The objectives
of economic progress and a high level of employment were now secondary
contributory reasons for acting. Significantly, the Commission was able to
switch the emphasis of its proposals by relying heavily on international and
national human rights standards36 and a wealth of EU soft law pronouncements built up over many years.37
The Commissions package combined principle with pragmatism.38 First,
following through its original plan to mainstream anti-racism,39 there was
to be a far-reaching vertical directive offering a minimum framework of
protection to prohibit discrimination on the grounds of racial or ethnic
origin with a material scope encompassing the labour market and wider
society.40 Secondly, a general framework directive for equal treatment in
employment and occupation was also proposed.41 The framework directive
would cover all grounds in Article 13 EC except sex discrimination, which
would be subject to separate complementary action under Article 141 [ex
119] EC.42 According to the Commission, horizontal action was consistent
with the structure and apparent purpose of Article 13 EC because the
absence of a qualitative hierarchy among the discretionary grounds is of
particular importance in cases of multiple discrimination.43 Nevertheless,
the draft directive allowed for additional protection in the case of disability discrimination and wide ranging exceptions concerning age and religious
discrimination. The Commissions strategy was to carry a broad measure
covering the span of Article 13 EC, including the more controversial areas,
34

COM(99) 564, para 1.

Ibid.
In the international context the Commission refer, at para 2.1, to the right of non-discrimination as an autonomous right or associated with the exercise of other fundamental rights
in the UN Covenants on Civil and Political Rights and Economic, Social and Cultural Rights;
the UN Conventions on the elimination of all forms of discrimination against women and
against racial discrimination; Art 14 ECHR and draft Protocol No 12; and, in the field of
employment and occupation, ILO Convention No 111. For discussion on this point, see
U OHare, Equality and Affirmative Action in International Human Rights Law and its
Relevance for the European Union (2000) 4 International Journal of Discrimination and the
Law 3.
37
Annex I contains 25 soft law instruments concerning human rights and fundamental freedoms. Annex II identifies 45 measures, most of which are non-binding, concerning disability,
racial or ethnic origin, age and sexual orientation. No soft law instruments concerning religion or belief were listed.
38
See Bell in Shaw, n 1 above at 16870
39
See An Action Plan Against Racism, COM(98) 183.
40
COM(99) 566.
41
COM(99) 565.
42
At this stage discrimination on the grounds of race or ethnic origin was included in this
proposal as a fallback should the vertical directive be unsuccessful.
43
COM(99) 565, p 6.
35
36

Article 13 ECAn Empty Vessel? 399

in the slipstream of the vertical directive prioritised by the Council. The
price to be paid was a limitation on the scope of the horizontal directive to
employment and occupation for proportionality reasons, on the contestable
basis that these areas constitute peoples main guarantee for social inclusion and enjoyment of basic human rights and freedoms.44
While the Commission offered only the thinnest veneer of justification
for the special emphasis on combating racism,45 it was made clear, however,
that the horizontal directive was intended to be part of a step-by-step
approach leading ultimately to a comprehensive framework of protection.46
Somewhat unconvincingly, the Commission justified basing the proposal on
Article 13 EC, rather than the specific employment legal base in Article
137(2) EC, on the grounds that its scope rationae personae was not limited
to employed persons,47 thereby avoiding the exclusion of pay in Article
137(6) EC. In the case of both draft directives the subsidiarity test was
satisfied because the measures would lay down common protection to be
enjoyed by all citizens of the Union, reinforcing and supplementing protection already existing in the Member States.48 Thirdly, to complete the
package, a Council decision was proposed to establish a six-year action programme to mainstream the Communitys anti-discrimination initiatives as
part of a co-ordinated and integrated strategy, recognising that practical
action is just as important as legislation.49 Once again the Commission
sought to emphasise the non-hierarchical ranking of priorities in Article 13
EC and the concomitant need to address discrimination across the board.50
In the wake of events in Austria and the impending challenge of enlargement, the EU moved with remarkable alacrity to adopt the entire package
by the end of 2000 as follows:
Directive 2000/43/EC implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin (the Race Equality Directive);51
Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (the Framework Employment
Directive);52
Decision 2000/750/EC establishing a Community action programme to
combat discrimination (20012006).53
44

Ibid.
See M Bell, Article 13 EC: The European Commissions Anti-discrimination Proposals
(2000) 29 Industrial Law Journal 79 at 80.
46
COM(99) 565, p 6.
47
Ibid p 7.
48
COM(99) 566, p 4; COM(99) 565, p 6.
49
COM(99) 567.
50
Ibid pp 23.
51
OJ 2000, L180/22.
52
OJ 2000, L303/16.
53
OJ 2000, L303/23.
45

400 Combating Discrimination

For those who considered that the Commission had been too ambitious,
flying Icarus-like too close to the sun, the outcome suggests that perhaps
the strategy was not bold enough. The anti-discrimination package emerged
largely unscathed and, in some respects, strengthened. Despite its obvious
limitations, Article 13 EC had provided a basis for a broad extension of
equalities protection, a reconfiguration of concepts of discrimination, a new
hierarchy of Community equalities laws and an intensive focus on more
effective methods of enforcement.54 For the purposes of coherence, the
Commission has published separate proposals in the area of sex equality
to, first, amend the Equal Treatment Directive55 under Article 141(3) EC
and, second, to introduce a vertical measure under Article 13 EC broadly
consistent with the Race Equality Directive.56 Article 13 EC has also formed
the legal basis for a separate Council Decision establishing a Community
Framework Strategy on Gender Equality (20012005) complementing the
Action Programme.57 In the following sections we will discuss the scope of
each of the directives and the Action Programme, explore key concepts and
assess the effectiveness of the provisions on enforcement. The concluding
section will include some suggestions about the future direction of this fastmoving policy area.

II THE ANTI-DISCRIMINATION PACKAGEAN ANALYSIS

(1) Scope of the Article 13 EC Directives

The Race Equality Directive marks a new departure in Community equalities legislation. For the first time the Community has adopted a comprehensive equal treatment measure which seeks to provide protection to all
Union citizens and, to a lesser extent, third-country nationals, through a
foundation based on human rights not market integration.58 Recitals 24
of the preamble draw inspiration not only from Article 6 TEU and the
ECHR, but also from an array of international standards which establish
that the right to equality before the law and protection against discrimination for all persons constitutes a universal right.59
54
For analysis see L Waddington and M Bell, More Equal than Others: Distinguishing
European Union Equality Directives (2001) 38 Common Market Law Review 587; and
OHare (2001, Maastricht Journal) n 26 above.
55
Dir 76/207/EEC, OJ 1976, L39/40. For the Commissions proposals, see COM(2001)
321, revising the original proposal contained in COM(2000) 334 after receipt of the Councils
Common Position of 23 July 2001(32/2001) OJ 2001, C307/5.
56
See COM(2000) 335, para 3.3.1.
57
Council Decision 2001/51/EC, OJ 2001, L17/22.
58
See further, S McInerney, Bases for Action Against Race Discrimination in EU Law
(2002) 27 European Law Review 72.
59
Recital 3. See also, recital 4 of the Framework Employment Directive.

The Anti-Discrimination Package 401

The Framework Employment Directive is also founded on human rights,
restating the main reference points in the recitals of the Race Equality
Directive,60 but stressing also the mainstreaming provisions in Article 3(2)
EC, in relation to the promotion of equality between men and women, and
noting that women are often the victims of multiple discrimination.61
Further justification for the Directives horizontal approach can be found
in recital 6 where reference is made to the commitment in the Social Charter
to combat every form of discrimination including the need to take appropriate action for the social and economic integration of elderly and disabled
people.
While the Equal Treatment Directive62 provides the model for both directives, what is remarkable is the breadth of the scope of the Race Equality
Directive. Article 3(1), although it incorporates a reference to the limits of
the Communitys conferred powers in Article 13 EC, extends the reach of
the Directive to areas on the very fringes of the Communitys competence
where, previously, a link with market integration had been required before
protection could be afforded.63 The Directive applies to all persons as
regards both the public and private sectors, including public bodies. The
listed areas can be broken down into two groupings.
The first grouping is broadly concerned with employment and occupation and contains provisions that are common to both the Race Equality
Directive and the Framework Employment Directive. The areas covered by
this grouping are:
(a) conditions for access to employment, to self-employment and to occupation,
including selection criteria and recruitment conditions, whatever the branch of
activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training,
advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of and involvement in an organisation of workers or employers, or
any organisation whose members carry on a particular profession, including the
benefits provided by such organisations;

Subparagraphs (a)(c) are broadly comparable with the combined scope of

the equal pay and equal treatment directives, with the exception of the reference in (b) to practical work experience. However, with regard to (d),
the earlier directives are silent,64 a difference that will be rectified by the
Commissions separate proposal to extend the Equal Treatment Directive.65

60
61
62
63
64
65

Recitals 1, 4 and 5.
Recital 3. See also recital 14 of the Race Equality Directive.
Dir 76/207/EEC, OJ 1976, L39/40.
See for example, Reg 1612/68/EEC on the free movement of workers, OJ 1968, L257/2.
See Waddington and Bell, n 54 above at 590.
COM(2001) 321, Art 3(1)(d) of the draft revised Directive.

402

Combating Discrimination

The second grouping applies exclusively to the Race Equality Directive

and includes:
(e)
(f)
(g)
(h)

social protection, including social security and healthcare;

social advantages;
education;
access to and supply of goods and services which are available to the public,
including housing.

In its Explanatory Memorandum the Commission note that while the design
and delivery of social protection, social security and health care are the
responsibility of the Member States, subparagraph (e) requires that Member
States must ensure that there is no discrimination based on racial or ethnic
origin when implementing that responsibility.66 Thus, despite the formal distinction between the legal scope of Articles 12 [ex 6] and 13 EC, Article
3(e) of the Race Equality Directive applies in a similar way to Article 12
EC, at least in the context of implementation by a Member State of its rules
on social protection and social security, because, as the Court held in
Martnez Sala,67 once the unequal treatment in question comes within the
scope of application of the Treaty it amounts to unlawful discrimination.
Article 3(f) is potentially even more wide-ranging. The concept of social
advantages is drawn from Article 7(2) of Regulation 1612/68 on free movement of workers in the context of Article 39 [ex 48] EC.68 In Even69 the
Court held that the social advantages in question are those which, whether
or not linked to a contract of employment, are generally granted to national
workers primarily because of their objective status as workers or by virtue
of the mere fact of their residence. The same concept is applied here,
albeit in a quite different context. The Court has developed an expansive
approach to the concept, which has been held to include concessionary
travel on public transport,70 language rights,71 childbirth loans,72 grants to
the elderly,73 and funding for attending training courses.74 The effect of
Article 3(f) is that once such advantages are granted by a state they must
be applied without discrimination on the grounds of racial or ethnic origin.
Education is an area of strictly limited Community competence under
Article 149 [ex 126] EC. While Article 149 EC does not permit harmoni66
COM(99) 566, p 7. Note that Art 3(3) of the Framework Employment Directive explicitly excludes payments made by state schemes or similar, including state social security or social
protection schemes. By virtue of recital 14 it is also made clear that the Framework Employment Directive shall be without prejudice to national provisions laying down retirement ages.
67
Case C85/96, Martnez Sala v Freistaat Berlin [1998] ECR I2691, para 64.
68
OJ 1968, L257/2. See COM(99) 566, p 7.
69
Case 207/78, Ministre Public v Even [1979] ECR 2019, para 22.
70
Case 32/75, Christini v SNCF [1975] ECR 1085.
71
Case 137/84, Mutsch [1985] ECR 2681.
72
Case C111/91, Commission v Luxembourg [1993] ECR I817.
73
Case 261/83, Castelli v ONPTS [1984] ECR 3199.
74
Case 24/86, Blaizot v Universit de Lige and others [1988] ECR 379.

The Anti-Discrimination Package 403

sation, the inclusion of education as a heading in Article 3(g) can be justified in a similar fashion to Article 3(e) on the basis that Member States
maintain responsibility for the organisation of their education systems but
there should be no discrimination on the grounds of racial or ethnic origin
in the award of grants and scholarships.75
Finally, Article 3(h) concerns public services and housing, areas where
there are no express references elsewhere in the Treaty. Once again, however, the inclusion of this heading is necessary for the implementation of
equality in practice. Article 3(h) can be equated with analogous rules in
Regulation 1612/68 whereby:76
. . . the right to freedom of movement, in order that it may be exercised, by objective standards, in freedom and dignity, requires that the right to equality and treatment shall be ensured in fact and in law in respect of all matters relating to the
actual pursuit of activities as employed persons and to eligibility for housing . . .

Article 3(2) which is found in both directives, contains an important

limitation whereby:
This directive does not cover difference of treatment based on nationality and is
without prejudice to provisions and conditions relating to the entry and residence
of third-country nationals and stateless persons on the territory of the Member
States, and to any treatment which arises from the legal status of the third-country
nationals and stateless persons concerned.

Therefore, although the directives protect legally resident third-country

nationals, so long as the discrimination in question is within their scope77
and violates one of the grounds in Article 13 EC,78 Article 3(2) exempts
Member States from the obligations therein when applying their immigration rules. This approach is reinforced by the fortress Europe provisions
in Title IV EC,79 establishing an area of freedom, security and justice. A
Member State which, for example, admits white Zimbabweans without
restriction but detains and ultimately expels black Zimbabweans as
bogus asylum seekers, will be able to maintain its policy stance. Such a
derogation, which reflects the extreme sensitivity of Member States on
immigration and asylum policy, runs counter to the professed desire of
the Communitys legislators to be seen to stand up to the anti-immigrant
75
See COM(99) 566, p 8. See also, M Bell, The New Article 13 EC Treaty: A Sound Basis
for European Anti-Discrimination Law? (1999) 6 Maastricht Journal 5 at 1617.
76
OJ 1968, L257/2, 5th recital of the preamble. Art 9(1) provides that a migrant worker
shall enjoy all the rights and benefits accorded to national workers in matters of housing,
including ownership of the housing he needs. Applied in Case C305/87, Commission v
Greece [1989] ECR 1461. See further, Bell, ibid at 18.
77
See the Courts finding in Case C230/97, Awoyemi [1998] ECR I6781, where it was
held that social legislation applies generally to all persons in the European Union. Discussed
by Bell (2000, Industrial Law Journal) n 45 above at 84.
78
In relation to sex discrimination, Art 141 EC contains no such limitation.
79
Arts 619 EC.

404 Combating Discrimination

policies of parties such as the Austrian FPO, and may, through a process
of exclusion, actually engender or exacerbate racial discrimination and multiple discrimination.80
Finally, the Framework Employment Directive contains two additional
paragraphs limiting its scope. First, in order to remove any doubt, the
Directive does not apply to payments of any kind made by state schemes
or similar, including state social security or social protection schemes.81
Member States may also avail themselves of a blanket exclusion of the
armed forces in relation to discrimination on the grounds of disability and
age.82 Somewhat confusingly, recital 19 appears to functionally limit this
derogation to safeguarding the combat effectiveness of the armed forces,
an approach that would be more proportionate as there is surely no justification for discrimination where these employees can be redeployed to noncombat positions?83

(2) Grounds of Discrimination

In each of the directives, Article 1 sets out the general purpose to lay down
a framework for combating discrimination on the applicable grounds with
a view to putting into effect in the Member States the principle of equal
treatment. In the first instance it is necessary to consider the concepts of
racial or ethnic origin in order to differentiate the forms of discrimination
brought within the range of the Race Equality Directive from other grounds
covered by the Framework Employment Directive, although in many cases
there may be discrimination on overlapping grounds.
The Race Equality Directive contains no specific definition of the term
racial or ethnic origin although it is made clear in the recitals that the EU
rejects theories that attempt to determine the existence of separate human
races and use of the term racial origin does not imply acceptance of such theories.84 The Court will therefore have some leeway in interpreting the term
racial or ethnic origin as a single concept or to give specific conceptual meanings to the words ethnic origin and racial origin. Two possible approaches
have been identified by Guild.85 The first approach arises from the interpretation of the UKs Race Relations Act of 1976 by the House of Lords. The
80
See T Hervey, Putting Europes House in Order: Racism, Race Discrimination and
Xenophobia after the Treaty of Amsterdam in D OKeeffe and P Twomey (eds) Legal Issues
of the Amsterdam Treaty (Hart, Oxford, 1999) 32949 at 334.
81
Art 3(3).
82
Art 3(4).
83
See OHare (2001, Maastricht Journal) n 26 above at 153.
84
Recital 6. The point here is to reject the separate but equal philosophy upon which the
US Supreme Court upheld racial segregation in the first half of the 20th Century following its
ruling in Plessey v Ferguson [1896] 163 US 567.
85
E Guild, The EC Directive on Race Discrimination: Surprises, Possibilities and Limitations (2000) 29 Industrial Law Journal 416 at 41819.

The Anti-Discrimination Package 405

Lords have developed a distinct community test whereby individuals can
identify themselves as part of an ethnic or racial group so long as that group
can be shown to have certain common characteristics such as shared history,
culture and language.86 Such a broad approach is capable of including some
traveller communities.87 One problem arising from this test is that some religious groups have been deemed to fall within this test, whilst others have
not.88 By contrast, Article 13 EC lists discrimination on the grounds of religion or belief separately, and by including these heads of discrimination
within the coverage of the Framework Employment Directive, it will be
necessary to view the terms racial or ethnic origin and religion or belief
as mutually exclusive in a Community context.89 Nonetheless, the broad
distinct community model is preferable to an alternative approach based
on immutable characteristics established in the US.90 Under the latter
approach, the individual must conform to a particular norm for the group in
question. Although this is advantageous, in terms of legal certainty, by
helping to define racial or ethnic groups, it is inflexible91 and requires comparisons to be made on the basis of an assumed societal norm. Anyone falling
outside the designated norm is excluded from protection.92
The Framework Employment Directive is also silent on the definitions
of religion or belief, disability, age or sexual orientation. This is problematic, in part because of the difficulty of defining terms which are multidimensional and often strongly contested within society. For example,
Member States may adopt their own definition of disability and leave its
application to case law, as in the UK, where the emphasis is on the long-term
adverse effects of a physical or mental impairment.93 The Court may be
asked to consider whether disability should cover a short-term or temporary
disability, perhaps adopting the broad definition used in the US.94 Even more
radically, there is a case for an autonomy or self-identification model by
86

Mandla v Dowell Lee [1983] 2 AC 548.

CRE v Dutton [1989] IRLR 8 (CA).
88
Sikhs and Jews but not Muslims.
89
The UK will be expected to retain its present approach to the Race Relations Act, 1976,
as Art 6(2) of the Race Equality Directive contains a non-retrogression clause which makes
it clear that implementation of the Directive shall under no circumstances constitute grounds
for a reduction in the level of protection against discrimination already afforded by Member
States in the fields covered by the Directive. See Guild, n 85 above at 418.
90
See Guild, ibid.
91
Ibid.
92
Guild, ibid suggests that travelling communities might be excluded on the grounds that
individuals could stop travelling and no longer come within the identity.
93
S 1(1) of the Disability Discrimination Act 1995 defines disability as a physical or mental
impairment which has a substantial and long term adverse effect on his ability to carry out
his normal day to day activities.
94
Under S 3(2) of the Americans with Disabilities Act, 1990, an individual with a disability includes a person with: (a) a physical or mental impairment which substantially limits
one or more of the major life activities of such an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. Discussed by L Waddington,
Disability, Employment and the European Community (Maklu, Antwerp, 1995) pp 14180.
87

406

Combating Discrimination

which an individual can determine his or her own status. By contrast, legislation concerning sexual orientation discrimination is still rare among
the Member States.95 In part also, difficulties arise, as we shall see below,
because of differing rules and derogations applying to particular heads of
discrimination.

(3) Concepts of Discrimination

Article 2 in both directives marks a radical shift in the Communitys conception of discrimination, placing an emphasis on the eradication of
comparative disadvantage and encompassing both harassment and an
instruction to discriminate. Both directives also provide more extensive protection against victimisation.96
Following the model in Article 2(1) of the Equal Treatment Directive,97
each directive provides, in Article 2(1) that, for the purposes of putting
into effect the principle of equal treatment, there shall be no direct or indirect discrimination whatsoever on any of the applicable grounds. While
retaining the requirement for a comparator, Article 2(2) of each directive
departs from the definition of discrimination contained in the Burden of
Proof Directive concerning sex equality cases.98 Whereas the latter contains
no definition of direct discrimination, Article 2(2)(a) of both the Race
Equality Directive and the Framework Employment Directive states that,
in respect of the specific grounds:99
. . . direct discrimination shall be taken to occur where one person is treated
less favourably than another is, has been or would be treated in a comparable
situation . . .

This definition is more than merely a transplantation of a codified definition of direct discrimination in sex equality cases. As Guild observes, the
comparison may be contemporary, historic or potential.100 Difficulties may
arise under each of the grounds both in determining unfavourable treatment and finding a suitable comparator. Disability and age discrimination
may be particularly complex in this respect. However, the definition would
appear to cover hypothetical situations in contrast with sex discrimination
where the Court has rejected hypothetical comparators in pregnancy
95
For a survey, see K Waaldijk, The Legal Situation in the Member States in K Waaldijk
and A Clapham (eds) Homosexuality: A European Community Issue (Nijhoff, Dordrecht,
1993) 71130.
96
See Art 9 of the Race Equality Directive and Art 11 of the Framework Employment
Directive.
97
Dir 76/207/EEC, OJ 1976, L39/40.
98
Dir 97/80/EC, OJ 1997, L14/16. See ch 7, pp 35763.
99
Emphasis added.
100
Guild, n 85 above at 419.

The Anti-Discrimination Package 407

cases.101 When applying the directives the possibility of a hypothetical
comparator may serve to strengthen the case of an applicant who is
unfavourably treated on one of the applicable grounds but is unable to find
an actual comparator in relation to that ground.102
Under Article 2(2)(b) of the Race Equality Directive:103
. . . indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion
or practice is objectively justified by a legitimate aim and the means of achieving
that aim are appropriate and necessary.

The Framework Employment Directive contains a similarly worded definition.104 By contrast, under Article 2(2) of the Burden of Proof Directive, such
a provision, criterion or practice must disadvantage a substantially higher
proportion of members of one sex. On the face of it a broad disadvantage
test will be introduced in place of the proportional test based on a statistically significant disproportionate impact which applies in sex discrimination
cases.105 For example, under the Race Equality Directive, there would be no
need to show that other persons from racial or ethnic minorities have actually been discriminated against so long as it can be established that the effect
of the relevant provision, criteria or practice has caused a disadvantage to the
complainant when compared with other persons in society. The statistical
requirement in sex equality cases is notoriously difficult to prove in cases
where there is complex evidence not readily available to applicants.106
The alternative disadvantage test allows for societal factors to be taken
into account by emphasising cyclical disadvantage rather than individualistic norms.107 However, by including the requirement of an actual or
101
Case 177/88, Dekker v Stichting Vormingscentrum voor Jong Volwassenen [1990] ECR
I3941; and Case C32/93, Webb v EMO Air Cargo [1994] ECR I3567. In this instance the
Courts approach protects women who, because pregnancy is unique to women, do not have
to seek a hypothetical male comparator in order to prove direct discrimination.
102
See also, Waddington and Bell, n 54 above at 592.
103
Emphasis added.
104
The phrase at a particular disadvantage replaces liable to affect adversely a person or
persons in the Commissions draft. The Commissions aim was to establish an effects-based test
to replace the need for statistical comparisons following the jurisprudence of the Court in nationality cases where it is not necessary to establish that the provision in question affects a substantially higher proportion of migrant workers so long as it is liable to have that effect: Case
C237/94, OFlynn v Adjudication Officer [1996] ECR I2617 at 2639. See Bell (2000, Industrial Law Journal) n 45 above at 82; OHare (2001, Maastricht Journal) n 26 above at 14647.
105
Case C167/97, R v Secretary of State for Employment, ex parte Seymour-Smith [1999]
ECR I623.
106
See OHare (2001, Maastricht Journal) n 26 above at 147.
107
For an interesting discussion, see N Lacey, From Individual to Group in Hepple and
Szyszczak, n 3 above, 99124; cf B Hepple, Has Twenty-five Years of the Race Relations Acts
in Britain Been a Failure in Hepple and Szyszczak, n 3 above, 1934. Hepple, at 267, argues
that law is too specific and too selective in its choice of causes in the cycle of disadvantage to
be capable, in itself, of delivering real substantive equality rights (emphasis in the original).

408 Combating Discrimination

presumed comparator the objective of equality of results is, in practice,
undermined in favour of the notion of formal equality between individuals.108 Nevertheless, the new test signifies a shift in the perception of equality from a neutral concept based on unequal treatment, towards a more
asymmetrical construct where equality is seen as a mechanism for correcting disadvantage.109 In this sense the Community has taken a stride forward
towards a broader effects-based conception of equality.
Just as the Community has taken a stride forward, however, it has also
taken a step back. An identical paragraph in the recitals of both directives
adds the rider that appreciation of the facts from which discrimination may
be inferred is a matter for national courts in accordance with national laws
or practices that may provide in particular for indirect discrimination to
be established by any means including on the basis of statistical evidence.110
The result is an uncertain and messy compromise which will place both
national courts and the Court of Justice in a predicament. What if statistical evidence does not conclusively establish a disadvantage for a particular
individual but other evidence of disadvantage in society can be applied to
that individuals situation? The purpose of recitals in the preamble of a
Community directive is normally to form part of an overarching set of defining aspirations upon which the measure is based.111 The Court has drawn
upon recitals to give full effect to Community law and yet, in this instance,
a set of unusually detailed and prescriptive recitals appear designed to have
a narrowing effect on the definition of discrimination. Moreover, the specific reference to objective justification, which draws on the Burden of Proof
Directive, provides plenty of scope for the Court to allow market-based justifications for discrimination, although it does not allow justifications based
on the employers subjective conception of morality.112 While separate provisions allowing for agency or group litigation may help to overcome these
difficulties, as OHare observes, there is a danger that mounting successful
litigation will remain as problematic as it has been under Community sex
equality laws.113
The most important innovation is perhaps to be found in Article 2(3)
which, in essentially identical terms in each Directive, extends the concept
108
See C Barnard and B Hepple, Substantive Equality (2000) 59 Cambridge Law Journal
562 at 568.
109
See S Fredman, European Community Discrimination Law: A Critique (1992) 21 Industrial Law Journal 118 at 12829.
110
Recital 15 of the Race Equality Directive and recital 16 of the Framework Employment
Directive.
111
On this point, see B Fitzpatrick, Converse Pyramids and the EU Social Constitution in
Shaw, n 1 above, 30324 at 305.
112
See the opinion of AG Elmer in Case C249/96, Grant v South-West Trains [1998] ECR
I621, where, at para 39, he rejected a justification for sex discrimination based on the
employers purely subjective view that homosexuals should be treated differently from heterosexuals. The Court found that there was no discrimination and therefore did not need to
consider the issue of justification.
113
OHare (2001, Maastricht Journal) n 26 above at 148.

The Anti-Discrimination Package 409

of discrimination to include harassment, drawing heavily on the Commissions 1991 Recommendation on the protection of the dignity of women
and men at work.114 Harassment shall be deemed to be discrimination under
the Race Equality Directive:
. . . when an unwanted conduct related to racial or ethnic origin takes place with
the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context,
the concept of harassment may be defined in accordance with the national laws and
practice of the Member States.

Although the Commission Recommendation stressed that sexual harassment may, in certain circumstances, be contrary to the principle of
equal treatment the effectiveness of the Recommendation depends on the
willingness of national courts to interpret the Equal Treatment Directive
teleologically. Formal inclusion of harassment in the Race Equality Directive
and Framework Employment Directive takes this process further, subject to
the caveat in the final sentence. Immediately it is apparent that there is no
requirement for a comparator for the unwanted conduct in question to be
deemed to be harassment. Nor is there any reference to objective justification on the basis that unwanted conduct must be judged from the perspective of the victim rather than by reference to objective standards.115 The
Commission makes no explicit theoretical explanation for this distinction
in its Explanatory Memorandum, except for the generalisation that harassment seriously undermines peoples rights in professional, economic and
social spheres;116 an argument that could be applied equally to other
unwanted forms of discrimination. Harassment is, however, deemed to
be a more serious offence than other forms of discrimination because it has
the purpose or effect of, first, violating the dignity of the person and,
second, creating an intimidating, hostile, degrading, humiliating or offensive
environment. Whereas the Recommendation on Sexual Harassment stated
that either limb must be satisfied,117 under this definition it must be both. In
theory it might be possible to create a hostile environment without violating
a persons dignity but this seems unlikely. In particular, by emphasising
the identity or personhood dimension of discrimination in Community
legislation for the first time, Article 2(3) reinforces the importance of the
individuals fundamental right to human dignity, which now forms Article 1
of the EU Charter of Fundamental Rights.118

114

Recommendation 92/131/EC, OJ 1992, L49/1. Discussed in ch 5.

See OHare (2001, Maastricht Journal) n 26 above at 149.
116
COM(99) 566, p 7.
117
An approach suggested by the Commission in the proposed draft Art 1(a) of the revised
Equal Treatment Directive, COM(2001) 321.
118
OJ 2000, C364/1 at 364/9: Human dignity is inviolable. It must be respected and
protected.
115

410

Combating Discrimination

More problematic is the highly charged terminology in the second limb

which, while it emphasises the multidimensional nature of harassment, may
prove difficult to establish in practice. Moreover, the prospects for a coherent approach to defining these terms may be undermined by the reference
in the final sentence to national laws and practice. Potentially this will
detract from a consistent interpretation of harassment, one of the principal
justifications for its inclusion.119 Alternatively, a more benign explanation
is possible, for it may simply provide a framework which allows limited
discretion to Member States to flesh out the detail, while the Court of Justice
retains its ultimate responsibility for consistent interpretation and application of Community law.120
Article 2(4), which is also essentially identical in both directives, refers
to an instruction to discriminate against persons on any of the applicable
grounds which, as with harassment, shall be deemed to be discrimination
without reference to the need for a comparator or the possibility of objective justification. The source of this clause, which was added following pressure from the European Parliament, is Article 4 of the UN Convention on
the Elimination of Race Discrimination which prohibits incitement to racial
and religious discrimination.121 OHare suggests that this term could be
interpreted as including not only express instructions but also may be
implied from the culture and practice of an institution,122 or what has
become known as institutionalised discrimination, and may therefore
provide an additional means of addressing this highly complex, and often
less tangible, form of discrimination.
Fear of dismissal or other adverse treatment is one of the major obstacles that inhibit individuals from taking action to enforce the principle
of equal treatment.123 Under Article 7 of the Equal Treatment Directive,
Member States are bound to take the necessary measures to provide protection against dismissal as a reaction to a complaint within an undertaking or legal proceedings aimed at compliance with the principle of equal
treatment. Article 9 of the Race Equality Directive places a much broader
obligation on Member States to protect individuals from victimisation in
the form of any adverse treatment or adverse consequence arising from an
individual seeking to exercise her or his rights under the Directive. A similar
clause in Article 11 of the Framework Employment Directive provides protection against dismissal or other adverse treatment by the employer in
those circumstances. An attempt by the European Parliament to include

119

See Guild, n 85 above at 420.

Under Art 220 [ex 164] EC.
See OHare (2001, Maastricht Journal) n 26 above at 149.
122
Ibid.
123
See the Commissions Explanatory Memorandum to the Race Equality Directive:
COM(99) 566, p 9.
120
121

The Anti-Discrimination Package 411

protection for witnesses, who may be particularly vulnerable to victimisation, was unsuccessful.124
While the new directives are formally more extensive than the Equal
Treatment Directive it should be noted that in practice these provisions are
in line with the jurisprudence of the Court. In Coote125 the applicant had
brought an equal treatment claim against her employer alleging that she
had been dismissed because of pregnancy. The claim was settled but, 12
months later, her employer refused to provide her with a reference with an
employment agency which she regarded as unlawful victimisation. Was it
possible for the Equal Treatment Directive to provide protection after the
dismissal? The Court held that it was not the legislatures intention to limit
protection solely to cases of dismissal because dismissal is not the only
measure which may effectively deter a worker from making use of the right
to judicial protection. Such deterrent measures include, inter alia, those
which are taken as a reaction to proceedings brought against an employer
and are intended to obstruct the dismissed employees attempts to find new
employment.126

(4) Reasonable Accommodation for Disabled Persons

Article 5 of the Framework Employment Directive provides that, in order
to guarantee compliance with the principle of equal treatment in relation
to persons with disabilities reasonable accommodation shall be provided
by employers. The concept of reasonable accommodation, first recognised
in the US, has been introduced into national legislation127 and now forms
part of the UN Standard Rules on the Equalisation of Opportunities for
Persons with Disabilities.128 In essence reasonable accommodation is a
modification or adjustment that is effective in enabling the disabled individual to perform the essential functions of the job.129 Under Article 5 the
precise obligation on the employer entails:

124
See Doc A50264/2000: amendment no 45. Discussed by OHare (2001, Maastricht
Journal) n 26 above at 150. In the Commissions revised proposal to amend the Equal Treatment Directive, COM(2001) 321, draft Art 7, if adopted, would protect employees and trade
union delegates, whether as victims or witnesses, from dismissal or any other adverse treatment or adverse consequence, including the taking of judicial action against them, as a reaction to a complaint or to proceedings of any kind, aimed at enforcing compliance with the
principle of equality of treatment for men and women.
125
Case C185/97, Coote v Granada [1998] ECR I5199.
126
Para 27.
127
See the UK Disability Discrimination Act, 1995; the Swedish Act on Discrimination of
People with Disabilities, 1999; and the Irish Employment Equality Act, 1998.
128
Adopted by UN Resolution 48/96, annex, of 20 Dec 1993. Available at:
<www.un.org/esa/socdev/enable/dissre00.htm>.
129
Waddington, Disability, Employment and the European Community, n 94 above, p 165.

412

Combating Discrimination

. . . appropriate measures, where needed in a particular case, to enable a person with

a disability to have access to, participate in, or advance in employment, or to
undergo training, unless such measures would impose a disproportionate burden on
the employer.

In practice Article 5 supplements existing obligations in Community health

and safety legislation to adapt work to the individual.130 In this instance,
however, the aim is not merely protective but also forms part of a strategy
to combat disadvantage. Where the specific appropriate measures are laid
down in national legislation, Article 2(2)(b)(ii) provides that the employer,
or any person or organisation responsible, is obliged to take those measures
in order to eliminate disadvantages and therefore this is deemed compatible with the definition of discrimination in the Directive. Recital 20
gives examples, such as adapting premises and equipment, patterns of
working time, the distribution of tasks, or the provision of training or
integration resources. It is important, however, to distinguish reasonable
accommodation from positive action in that the former does not aim to
create an opportunity where none would otherwise exist.131 Instead, as
Quinn explains, it serves to open up pathways to opportunities hitherto
foreclosed.132 Hence, the obligation to provide reasonable accommodation
marks a substantive step towards equality for people with disabilities within
the context of the employment relationship. While the specific measures in
question are targeted at the employment relationship, the broader strategy
underlying Article 13 EC allows for a mainstreaming of the reasonable
accommodation concept with a view to creating a barrier-free society for
people with disabilities.133
Although there is no explicit reference in either Article 13 EC or the
Framework Employment Directive to the need to take account of the needs
of small and medium-sized enterprises, the defence of disproportionate
burden is likely to be most easily applied to smaller undertakings for whom
the cost of taking measures deemed appropriate by the Member State may
be prohibitive, a point emphasised by recital 21 which elaborates further
on the type of measures that may constitute a disproportionate burden for
such undertakings.134 As an incentive to Member States to provide assistance to employers, the final sentence of Article 5 provides that the burden
shall not be disproportionate when it is sufficiently remedied by measures
130
Art 6(2)(d) of the Framework Directive on Safety and Health of Workers at Work,
89/391/EEC, OJ 1989, L183/1; and Art 5(1) of the Pregnant Workers Dir, 92/85/EEC, OJ
1992, L348/1.
131
See G Quinn, Human Rights of People with Disabilities under EU Law in P Alston (ed)
The EU and Human Rights (OUP, Oxford, 1999) 281326 at 291.
132
Ibid.
133
See COM(2000) 284, Towards a Barrier-Free Europe for People with Disabilities.
134
Account should be taken in particular of the financial and other costs entailed, the scale
and financial resources of the organisation or undertaking and the possibility of obtaining
public funding or any other assistance.

The Anti-Discrimination Package 413

taken within the framework of the disability policy of the Member State
concerned.135 Despite this qualification, incorporation of the concept of reasonable accommodation represents a significant step towards recognition
of the integrity and self-worth of persons with disabilities, now acknowledged as an integral part of their fundamental rights,136 and helps to secure
their participation and inclusion in the work environment.

(5) General Derogations to the Principle of Equal Treatment

Both directives permit derogations from the principle of equal treatment.
Article 4 of the Race Equality Directive, which is essentially replicated in
Article 4(1) of the Framework Employment Directive, allows a Member
State to derogate on the grounds of genuine occupational requirements,
broadly following Article 2(2) of the Equal Treatment Directive. Member
States may provide that a difference in treatment based on a characteristic
related to any of the applicable grounds shall not constitute discrimination
where:
. . . by reason of the nature of the particular occupational activities concerned or
the context in which they are carried out, such a characteristic constitutes a genuine
and determining occupational requirement, providing that the objective is legitimate
and the requirement is proportionate.

References to the Court on the interpretation of Article 2(2) of the Equal

Treatment Directive have tended to arise where Member States have sought
to exclude women from performing certain roles in the police and armed
forces. Proportionality is not expressly referred to in that provision,
although it has been inferred by the Court which has limited the exception
to what is appropriate and necessary in order to achieve a particular aim
and requires the principle of equal treatment to be reconciled, as far as possible, with the requirements of public security, viewed in the context in
which the activities are performed.137 For example, in Sirdar138 a female
British army chef was refused a transfer to the Royal Marines on the
grounds that it was essential for combat effectiveness for that corps to be
all male. The Court accepted this explanation because the Royal Marines
are a small force and all members, including chefs, may be required to serve

135
For example, by providing financial, training or technical support. See Waddington and
Bell, n 54 above at 596.
136
Art 26 of the EU Charter of Fundamental Rights, OJ 2000, C364/1.
137
Case 222/84, Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR
1651, para 38.
138
Case C273/97, Sirdar v The Army Board [1999] ECR I7403. For discussion, see P
Koutrakos, Community law and equal treatment in the armed forces (2000) 25 European
Law Review 433.

414 Combating Discrimination

as front-line commandos.139 The exclusion was deemed to be proportionate and within the discretion allowed to the Member State. One caveat was
that the Member State must assess the activities concerned periodically, to
decide whether, in the light of social developments, such an exception is still
justified.140 By contrast in Kreil141 the Court found that Germanys policy
that women may on no account render service involving the use of arms
was disproportionate because such a prohibition may only be applied to
specified activities.142
In the new directives the equivalent provision is more tightly defined.
Member States must relate the justification closely to the nature of the job
concerned and the context in which it is carried out.143 In the case of the
Framework Employment Directive, however, account must also be taken of
the recitals. Recital 18 provides that the armed forces, police, prison or
emergency services are not obliged to recruit or maintain in employment
persons who do not have the range of functions that they may be called
upon to perform with regard to the legitimate objective of preserving the
operational capacity of those services. This recital is somewhat ambiguous
and may form a basis for reviving the argument that gays and lesbians
should not be permitted to serve in certain units within the armed forces
for operational reasons, a view advocated by the UK until it was rejected
on privacy grounds by the European Court of Human Rights in 1999.144
Account should also be taken of Article 2(5) of the Framework Employment Directive which adds the following rider to the provisions on
discrimination:
This Directive shall be without prejudice to measures laid down by national law
which, in a democratic society, are necessary for public security, for the maintenance
of public order and the prevention of criminal offences, for the protection of health
and for protection of the rights and freedoms of others.

There is no equivalent clause in the Race Equality Directive. As Skidmore

notes, unless the Court is vigilant this extra derogation could be used by
Member States to perpetuate discrimination based on stereotypical assumptions which have historically been used to justify discrimination against
minority religions, gays and lesbians, and people with disabilities.145
139

Para 30.
Para 31.
141
Case C285/98, Kreil v Bundesrepublik Deutschland [2000] ECR I69.
142
Para 27.
143
COM(99) 565, p 10.
144
On the basis of the right to private and family life under Art 8(2) ECHR. See Apps
33985/96 and 33986/96, Smith and Grady v United Kingdom [1999] IRLR 734. Discussed
by P Skidmore, EC Framework Directive on Equal Treatment in Employment: Towards a
Comprehensive Community Anti-Discrimination Policy? (2001) 30 Industrial Law Journal
126 at 130.
145
Ibid.
140

The Anti-Discrimination Package 415

Finally, under recital 22, the Framework Employment Directive is
without prejudice to national laws on marital status and benefits dependant thereon. Hence, where national legislation provides for employmentrelated benefits or, indeed, tax breaks that favour marriage, as defined
by national law, it would appear that Article 2(2) will be unavailable even
though such laws may discriminate against same-sex couples who, in certain
Member States, are unable to marry. This approach is consistent with the
view of the Court in Grant146 where it was held, prior to the adoption of
the Directive, that according to the state of the law at the time, stable relationships between two persons of the same sex could not be regarded as
equivalent to marriage.147 More recently, in D and Sweden v Council148 the
Court has taken a static view of the law by upholding this distinction when
ruling that a Swedish law on registered partnerships was distinct from
marriage even though such legislation may have similar effects in law.149 It
followed that registered partners under this legislation were denied entitlement to a household allowance under the Communitys Staff Regulations,
which referred only to married couples.150 The Court fell back on a separation of powers argument when ruling that amendment of the Regulations
was the responsibility of the Council as legislator.151 Significantly, the Court
made reference to neither Article 13 EC nor the provisions of the EU Charter,
although in the case of the latter, the Court may have been influenced by
the reliance of the AG on an explanatory memorandum of the drafting
Convention which states that there is no obligation to recognise same-sex
146

Case C249/96, Grant v South-West Trains [1998] ECR I621.

Para 35. The Court found, at paras 3234, that in the majority of Member States a
stable homosexual relationship was treated as equivalent to a stable heterosexual relationship
outside marriage. Moreover, the European Court of Human Rights has interpreted Art 12
ECHR as applying only to the traditional marriage between two persons of the opposite biological sexsee Rees [1986] Series A no 106, p 19; and Cossey [1990] Series A no 184, p 17.
For critiques, see R Wintemute, Sexual Orientation and Human Rights: The United States
Constitution, the European Convention and the Canadian Charter (OUP, Oxford, 1995) ch
5; R Amy Elman, The Limits of Citizenship: Migration, Sex Discrimination and Same-Sex
Partners in EU Law (2000) 28 Journal of Common Market Studies 729; and I Canor, Equality for Lesbians and Gay Men in the European Community Legal Orderthey shall be male
and female? (2000) 7 Maastricht Journal 273.
148
Cases C122/99P and C125/99P [2001] ECR I4139. On appeal the Court upheld
the judgment of the Court of First Instance in Case T264/97 [1999] ECRSC IA 1 and
II1. See the annotation by E Ellis (2002) 39 Common Market Law Review 151; and E
Caracciolo di Torella and E Reid, The Changing Shape of the European Family and
Fundamental Rights (2002) 27 European Law Review 80.
149
Paras 337 (ECJ). See paras 2830 (CFI).
150
The Regulations have been amended to require equal treatment of all officials regardless of their sexual orientation, but the new Regulation had not entered into force at the material time of the proceedings. See Reg 781/98/EC, OJ 1998, L113/4. On this point, see Ellis,
n 148 above at 151.
151
Para 12 (ECJ) and paras 312 (CFI); cf AG Tesauro in Case C13/94, P v S and Cornwall CC [1996] ECR I2143, who contended, at paras 913, in respect of the designation of
gender on birth certificates, that it is permissible for a court to change civil status to keep up
with social change.
147

416

Combating Discrimination

couples as a result of the Charter.152 The Court was also satisfied that the right
for respect of private and family life under Article 8 ECHR was not affected
by the Staff Regulations because the refusal to grant the allowance did not
affect Ds civil status.153 While the Court can justly be criticised for outmoded
social conservatism, the more problematic aspect of the judgment arises from
its dismissive treatment of a legally recognised civil partnership intended to
convey benefits equivalent to marriage for the precise purpose of removing
discrimination against people who are legally unable to marry. Recital 22
may have the effect of denying justice to such individuals should the Court
persist with such a narrow and inequitable approach to discrimination in
future cases.

(6) Specific Derogations in the Framework Employment Directive:

Religion or Belief, Age, Disability
The Framework Employment Directive contains a range of specific derogations concerning certain grounds of discrimination. Firstly, with regard
to religion or belief, there is a separate territorial derogation concerning
Northern Ireland154 and an additional derogation regarding occupational
activities within churches and other public or private organisations the
ethos of which is based on religion or belief.155 This is a particularly sensitive area for the Member States and was subject to a separate Declaration annexed to the Amsterdam Treaty.156 The derogation is limited to
national rules and practices in place at the date of the Directives adoption.
Where a persons religion or belief constitutes a genuine, legitimate and
justified occupational requirement in relation to the nature of these activities or the context in which they are carried out, it will not be discrimination to take into account the religion or belief of the person. Moreover,
national law may allow these churches or organisations to require individuals who work for them to act in good faith and with loyalty to the
152
On this point see Caracciolo di Torella and Reid, n 148 above at 83. Both the AG and
the Court ignored Art 9 of the Charter which states that the right to marry and the right to
found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. For further discussion on the approach of the AG and the Court to the
Charter in D, see ch 12.
153
Para 59.
154
Art 15 which, on the one hand, allows positive action to address under-representation
of the Catholic community in the police servicepromoting integrationwhile, on the other
hand, disapplies the provisions on religion or belief for teacher recruitmentreinforcing segregation. Such contradictory steps are deemed necessary to promote peace and reconciliation
between the communities (recital 34).
155
Art 4(2).
156
Declaration No 11 on the status of churches and non-confessional organisations (see
recital 24). The Declaration states that the Treaty does not prejudice the status of churches
and religious organisations under national law and it equally respects the status of philosophical and non-confessional organisations.

The Anti-Discrimination Package 417

organisations ethos. Hence, the first limb of the derogation allows these
organisations to restrict appointments for certain positions to members of
the same religion or organisation. The second limb is more problematic as
it may apply in relation to any employee of the relevant organisation regardless of their activities or the context in which they are carried out.157 The
derogation does not, however, permit derogations on any other ground and,
therefore, would not allow discrimination against a teacher at a religious
school who is lesbian or gay.158
Secondly, there are extensive derogations to the right to equal treatment
on the grounds of age. Once again this is an acutely sensitive area for the
Member States, although in this case the reasons are economic rather than
ethical.159 Uniquely within Community law, Article 6(1) allows for both
indirect and direct age discrimination to be objectively and reasonably
justified by a legitimate aim if the means of achieving that aim are
appropriate and necessary.160 Significantly, Article 6(1) specifically refers
to employment policy, labour market and vocational training objectives as
legitimate aims. For example, reference is made to a non-exhaustive list of
justifications including special employment schemes for young workers.
More controversially, the list refers to the fixing of minimum conditions of
age, professional experience or seniority in service for access to employment or to certain advantages linked to employment; and the fixing of a
maximum age for recruitment based on the training requirements of the
post or the need for a reasonable period of employment before retirement.
These justifications apply notwithstanding Article 2(2) which contains the
detailed definitions of direct and indirect discrimination. It would appear
that age discrimination founded on harassment or victimisation is not
capable of justification.161 Nonetheless, Member States will have a very wide
discretion when implementing and applying national laws and, unless the
courts strictly apply the tests of objective justification and proportionality,
the provisions on age discrimination will be so heavily circumscribed as to
be almost worthless.
Moreover, there is a second element of Article 6 that allows for an even
broader derogation, in respect of retirement and also invalidity benefits and
157
Skidmore, n 144 above at 131, gives the example of religious hospitals which may seek
to discipline surgeons for performing unethical operations.
158
This example is discussed by Waddington and Bell, n 54 above at 600, who stress that
account will also have to be taken of the fundamental right to respect for family and private
life.
159
On the demographic time bomb see H Desmond, Older and GreyerThird Age
Workers and the Labour Market (2000) 16 International Journal of Comparative Labour
Law and Industrial Relations 235.
160
Waddington and Bell, n 54 above at 599, point out that this enumeration closely matches
the case law of the European Court of Human Rights under Art 14 ECHR, where any form
of discrimination may be justified where the measure in question pursues a legitimate aim and
is a proportionate means to achieving that aim.
161
Arts 2(3) and 11.

418 Combating Discrimination

the calculation thereof, than that contained in the Equal Treatment (Social
Security) Directive, 79/7.162 Article 6(2) provides that:
Notwithstanding Article 2(2) Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement
or invalidity benefits, including the fixing under those schemes of different ages for
employees or groups or categories of employees, and the use, in the context of such
schemes, of age criteria in actuarial calculations, does not constitute discrimination
on the grounds of age, provided this does not result in discrimination on the grounds
of sex.

Member States, mindful of the Courts case law under Directive 79/7, are
extremely worried about demographic trends and the potentially spiralling
costs of social protection schemes for states, employers and wider society.
The derogation seeks to ensure that the Court is bound to take a much
more restrictive approach under Article 6(2) which amounts to a total derogation from Article 2(2) with no reference to the need for a legitimate aim
or proportionality.
Thirdly, in addition to recitals 18 and 19 on the armed forces and emergency services, further difficulties in respect of age and disability discrimination, may arise from recital 17, which provides that:
This Directive does not require the recruitment, promotion or maintenance in
employment or training of an individual who is not competent, capable or available
to perform the essential functions of the post concerned or to undergo the relevant
training, without prejudice to the obligation to provide reasonable accommodation
for people with disabilities.

Recital 17 provides the basis for a lack of competence or capability defence

that, notwithstanding the reference to reasonable accommodation, may, in
practice, limit the scope for challenge on the grounds of disability, or indeed
age discrimination, or both. Perhaps religious discrimination may be justified if the essential functions of a post have to be performed on a holy day?
It seems unlikely that this is the intention of such a clause, the status of
which is somewhat uncertain given its location in the recitals rather than
the main provisions.

(7) Positive Action

Article 5 of the Race Equality Directive and Article 7(1) of the Framework
Employment Directive are closely based on Article 141(4) EC on sex equality. Positive action by Member States is permitted with a view to ensuring
162
OJ 1979, L6/24. Under Art 7(1)(a) Member States may exclude the determination of
pensionable age for the purpose of granting old-age and retirement pensions and the possible
consequences thereof for other benefits.

The Anti-Discrimination Package 419

full equality in practice in the form of maintaining or adopting specific
measures to prevent or compensate for disadvantages related to the respective grounds of discrimination. Further, Article 7(2) of the Framework
Employment Directive allows for additional health and safety measures by
Member States to safeguard or promote the integration of disabled persons
into the working environment.163 To an extent the new realignment of discrimination laws is further underlined by the fact that while positive action
under Article 141(4) EC and the Framework Employment Directive is
limited to the field of employment, the Race Equality Directive permits positive action in all areas within its scope.
From the outset an asymmetrical approach to equality will be permitted to
tackle both present and historical disadvantages and thereby address equality of outcomes.164 This approach, which favours substantive equality and is
consistent with the Courts more recent case law on Article 2(4) of the Equal
Treatment Directive,165 will, depending on the extent to which it is applied by
Member States, fortify the disadvantage test for indirect discrimination in the
new directives. Nevertheless, under the Equal Treatment Directive, positive
action is only permitted where systems for selection or preference are not
automatic or predetermined.166 This test may present difficulties where, for
example, Member States have obligatory quotas for the employment of
people with disabilities or wish to establish exclusive training schemes for the
members of a disadvantaged group.167 Waddington and Bell suggest that the
Court may regard the different social context for each head of discrimination
as justification for a change in the scope of positive action.168

(8) Remedies, Enforcement, Compliance and Sanctions

The Race Equality Directive, when compared with earlier Community
anti-discrimination and employment laws, contains more detailed and
163
Waddington and Bell, n 54 above at 603, express concern that excessively protectionist
measures may be introduced on this basis that could result in the exclusion or denial of equal
treatment to people with disabilities.
164
See OHare (2001, Maastricht Journal) n 26 above at 152.
165
See Case C409/95, Marschall v Land Nordrhein-Westfalen [1997] ECR I6363; and
Case C158/97, Badeck and others v Hessischer Ministerprsident [2000] ECR I1875. In the
view of the Commission the Directive has now been effectively superseded by Art 141(4) EC,
a point borne out by the deletion of the original Art 2(4) in the draft of the revised text and
its replacement with a biannual reporting duty on those Member States who adopt or maintain positive actionssee COM(2001) 321. For discussion of the concept of positive action
in the context of Art 141(4) EC and case law, see ch 10.
166
See Case C407/98, Abrahamsson and Anderson v Fogelqvist [2000] ECR I5539.
167
See Waddington and Bell, n 54 above at 603; and, generally, L Waddington, Reassessing the Employment of People with Disabilities in Europe: From Quotas to Antidiscrimination Laws (1996) 18 Comparative Labor Law Journal 62.
168
Ibid.

420 Combating Discrimination

wide-ranging provisions on access to justice, effective remedies and
enforcement of Community law in the national legal systems of the
Member States. Articles 715 of the Directive will, cumulatively, erode the
autonomy of national administrative and judicial procedures concerning
locus standi, the burden of proof and assistance to victims, compliance and
sanctions. Similar provisions in the Framework Employment Directive,169
while not as extensive, are also designed to create a more effective
framework of individual protection on the ground.
From the perspective of the Commission, these intrusions into national
procedural autonomy are necessary to guarantee the effectiveness of antidiscrimination legislation because each element is concerned with both the
right of victims to a personal remedy against a person or body who has
perpetuated discrimination, and the establishment of an appropriate mechanism in each Member State to ensure adequate levels of enforcement.170
Several reports in recent years have highlighted many problems faced by
individual litigants seeking to rely on Community equal treatment legislation.171 The Burden of Proof Directive,172 covering the field of Community
sex equality law, was intended as an aid to complainants who find it difficult or impossible to prove discrimination and who are hampered by a lack
of resources, expertise and information.173 In practice it has codified the
existing case law of the Court which, for reasons of effective enforcement
of the equality principle, places the burden on the employer to show that
the practice in question was not in fact discriminatory.174 Articles 3 and 4
of that Directive provide the model for identical provisions in the new directives.175 Once the plaintiff has established a prima facie case of less
favourable treatment caused by apparent discrimination the burden of
proof switches to the defendant to prove that there has been no breach of
the principle of equality of treatment.
The provisions on the burden of proof, which apply for both individual
and group actions,176 seek to preserve a modicum of autonomy for the
national court which must apply this rule in accordance with their national
169

Arts 914 and 1617.

COM(99) 567, p 9.
171
See J Blom, B Fitzpatrick, J Gregory, R Knegt and U OHare, The Utilisation of
Sex Equality Litigation in the Member States of the European Community, V/783/96-EN
(European Commission, Brussels, 1996); and S Prechal, L Senden and B Koopman, General
Report 1997 of the Legal Experts Group on Equal Treatment of Men and Women (European
Commission, Brussels, 1999).
172
Dir 97/80/EC, OJ 1997, L14/16. Discussed in ch 7.
173
See OHare (2001, Maastricht Journal) n 26 above at 154.
174
Case 109/88, Handels- og Kontorfunktionaerernes Forbund i Danmark v Danfoss
[1989] ECR 3199, para 14; Case C127/92, Enderby v Frenchay Health Authority [1993]
ECR I5355, para 19.
175
Art 8 of the Race Equality Directive and Art 10 of the Framework Employment
Directive.
176
Art 8(3) and 10(3) respectively.
170

The Anti-Discrimination Package 421

judicial systems.177 Moreover, as with the Burden of Proof Directive,
Member States may introduce rules of evidence which are more favourable
to plaintiffs. The provisions will not apply in cases where it is for the court
or competent body to investigate the facts of the case.178 Criminal proceedings are also excluded, which may be especially problematic when
applying the Race Equality Directive as several Member States rely on
criminal law sanctions for racial discrimination.179
Whilst all of this may seem very straightforward and fully consistent with
the Burden of Proof Directive, an unhelpful paragraph in the recitals of the
Framework Employment Directive may cause difficulties for plaintiffs.
Recital 31, which curiously is not replicated in the Race Equality Directive,
limits the burden on the respondent, who will not have to prove the
plaintiffs particular religion or belief, disability, age or sexual orientation.
At one level this is logical, because there is no reason to assume that the
employer is aware or should be aware of this information. Difficulties may
arise, however, where an employer challenges an individuals assertion of, for
example, their own sexual orientation or belief but is unwilling or unable to
provide proof, perhaps to protect third parties. In such a case the Court may
be provided with an opportunity to offer further guidance to national
courts to uphold the individuals right to their own identity as part of their
fundamental right of equality and privacy,180 an approach favoured by AG
Tesauro in P v S and Cornwall CC.181 Recognition of an individuals right to
their own identity is essential for the attainment of substantive equality
because it shifts the focus from the particular characteristics of the
individual, real or assumed, to the image in society of the group in question.
One of the most innovative features of the directives can be found in
the provisions concerning institutional actors deemed to have a legitimate
interest in ensuring national compliance with equal treatment legislation.
Research has demonstrated that action by agencies can enable individuals to
pursue their equality rights.182 For example, in the UK, the statutory Equal
Opportunities Commission has successfully pursued a two-stage strategy to
test Community law by seeking references to the Court of Justice and to litigate in the public interest in judicial review proceedings by using Community law to strike down national law.183 Under the new provisions individuals
177

Art 8(1) and 10(1).

Art 8(4) and 10(4).
179
Waddington and Bell, n 54 above at 606, cite the examples of Spain, France and
Luxembourg.
180
For example, the right to respect for private life under Art 8 ECHR.
181
Case C13/94 [1996] ECR I2143, opinion, para 22.
182
See Blom et al, n 171 above. Discussed by OHare (2001, Maastricht Journal) n 26 above
at 155.
183
See C Barnard, A European Litigation Strategy: the Case of the Equal Opportunities
Commission in J Shaw and G More, New Legal Dynamics of European Union (Clarendon
Press, Oxford, 1995) 25372 at 265.
178

422

Combating Discrimination

will have a general right of legal standing and access to justice184 and, for the
first time under Community law, both directives will oblige the legal orders
of the Member States to grant locus standi to bodies that have a legitimate
interest in compliance to engage either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure providing for the enforcement of obligations thereunder.185 Member
States will, however, be able to determine whether these bodies have a legitimate interest in accordance with their own criteria, leaving some scope for
a restrictive interpretation that may exclude certain organisations disapproved of by national governments. Moreover, while action for the enforcement of obligations under the directives may be brought even after the end
of the relationship in which discrimination is alleged to have occurred has
ended,186 it shall be without prejudice to national time limits for bringing
actions.187 Contrary to the recommendations of the European Parliament,
these provisions place no obligation on Member States to fund these bodies
or to allow them to bring self-initiated test cases.188
Article 13 of the Race Equality Directive goes further. Member States are
obliged to designate a body or bodies for the promotion of equal treatment in respect of racial or ethnic origin.189 Such bodies should be competent, inter alia, to provide independent assistance to victims, conduct
independent surveys and publish independent reports concerning discrimination.190 This approach follows the pattern in several Member States where
independent equalities agencies are empowered to litigate on behalf of individuals,191 but, whereas many of these bodies are also concerned with other
grounds of discrimination, the Framework Employment Directive places no
obligation on Member States to establish wider independent equal treatment bodies. The draft Equal Treatment Directive also provides for the
designation of independent bodies,192 adding to the divergence between
Community equalities laws and holding back the creation and development
of bodies capable of combating multiple discrimination.193
Essentially identical provisions on compliance and sanctions oblige
Member States to, first, abolish national laws or other provisions contrary
to the principle of equal treatment,194 secondly, to override or render null
184
Art 7(1) of the Race Equality Directive and Art 9(1) of the Framework Employment
Directive.
185
Arts 7(2) and 9(2) respectively.
186
See Case C185/97, Coote v Granada [1998] ECR I5199.
187
Arts 7(3) and 9(3).
188
Doc A51036/2000. See further, OHare (2001, Maastricht Journal) n 26 above at 155.
189
Art 13(1).
190
Art 13(2).
191
For example, the UK, Ireland, the Netherlands and Sweden. See Waddington and Bell,
n 54 above at 608.
192
COM(2001) 321. Draft Art 8a.
193
See Waddington and Bell, n 54 above at 608.
194
Art 14(a) of the Framework Employment Directive and Art 16(a) of the Race Equality
Directive.

The Anti-Discrimination Package 423

and void any discriminatory clauses in any contracts, corporate or institutional rules or collective agreements,195 and third, to ensure that sanctions
for infringements, which may comprise the payment of compensation to the
victim, must be effective, dissuasive and proportionate.196 Whilst these provisions are now regarded by the Commission as standard,197 the combined
effect of the requirements on remedies and enforcement will be to assist
plaintiffs, a factor that will be particularly important in national jurisdictions where equalities law is relatively under-developed.
Finally, the implementation clause of the Framework Employment Directive carries a further sting in the tail, emphasising the emerging hierarchy
of Community equalities laws. Whereas the Race Equality Directive must
be implemented by 19 July 2003,198 the Framework Employment Directive
has an implementation date of 2 December 2003 with a further extension
of three years to take account of particular conditions to implement the
provisions on age and disability discrimination.199 Hence, notwithstanding
the wide-ranging derogations available to Member States in respect of
these grounds, further allowance is made, almost certainly driven by cost
considerations.

(9) The Anti-Discrimination Action Programme

In November 2000 the Council adopted a Decision establishing a five-year
Community Action Programme to combat discrimination.200 The Action
Programme seeks to address all grounds listed in Article 13 EC except for
sex discrimination, where a complementary strategy will be conducted over
broadly the same period.201 The Programme is resourced at a relatively
modest 98.4 million over the six years. It supplements the directives as
part of a comprehensive strategy to combat all forms of discrimination.202
Article 2 sets out the objectives which are to promote measures to prevent
and combat discrimination whether based on one or on multiple factors,
taking account of future legislative developments. It has three strands:203

195

Arts 14(b) and 16(b) respectively.

Arts 15 and 17.
Note, however, that the revision of the Equal Treatment Directive, COM(2001) 321,
would provide, in the draft amended Art 6(2), for the payment of interest and no upper limit
on a claim for damages consistent with the Courts ruling in Case C271/91, Marshall v
Southampton and South-West Hampshire AHA II [1993] ECR I4367.
198
Art 16.
199
Art 18.
200
Decision 2000/750/EC, OJ 2000, L303/23. The operative period is 20012006. For the
Commissions proposals, see COM(99) 567 and COM(2000) 649.
201
Decision 2001/51/EC establishing a Community framework strategy on gender equality
(20012005), OJ 2001, L17/22.
202
Recital 5.
203
Arts 23.
196
197

424 Combating Discrimination

improved understanding of issues related to discrimination through evaluation of the effectiveness of policies and practice using studies and benchmarking; greater capacity to prevent and address discrimination effectively,
in particular by strengthening organisations means of action and, through
networking, exchange of information and good practice among nongovernmental organisations; and promoting and disseminating the values
and practices underlying the fight against discrimination, including
awareness-raising campaigns.
The Action Programme is to be implemented through a variety of measures listed in the Annex with the usual mix of annual reporting by Member
States, monitoring by the Commission, consultation with interested parties
and social dialogue. In addition a Committee will be established at Community level. The Programme will include practical measures to assist
groups that are frequently victims of discrimination and will seek to involve
these groups in the programmes design and implementation. Following the
revision of the Commissions original proposal, the Programme will now
give greater emphasis to the empowerment of self-help groups and combating forms of multiple discrimination cutting across the heads of discrimination listed in Article 13 EC. Above all, this Decision is intended to
ensure both full implementation and application of the two directives and,
also, mainstreaming of the equal treatment objective throughout all relevant activities at Community and national levels.
Following the practice established under the European Employment
Strategy, now known as the open method of co-ordination (OMC),204 the
Action Programme will enable the Community to apply the established
tools of the OMCbenchmarking, cyclical reporting, involvement of
non-governmental organisationsas a means of developing a culture of
non-discrimination and helping to overcome the different hurdles posed by
national legal systems, a task not aided by the sliding-scale approach to
equality created by the directives.

III THE FRAMEWORK STRATEGY ON GENDER EQUALITY:

A WAY FORWARD?
The different forms of discrimination cannot be ranked: all are equally
intolerable.205

With this bold sentiment the Commission seeks to compensate, at least

through the delivery of the Action Programme, for the somewhat distorted
set of priorities that has emerged from the first wave of Community legislation under Article 13 EC. Over the coming years Community equalities
204
205

See ch 11 for analysis of the effectiveness of the OMC.

Recital 5 of the Action Programme.

A Way Forward? 425

law will increasingly be shaped by the interpretation and application of
the new directives and, perhaps to a lesser extent, by supplementary mainstreaming measures arising from the Action Programme and the Framework
Strategy on Gender Equality.206 While it is assumed that agreement on the
amended version of the Equal Treatment Directive is imminent, such an
amendment is likely to be in conformity with the Framework Employment
Directive as the Commission aims to ensure coherence between secondary
legislation on identical issues.207 The prospects for further directives based
on Article 13 EC beyond the field of employment, whether on sex discrimination or the other listed grounds, remain less certain, not least
because of the requirement of unanimity in the Council.
In the light of these developments Community equalities legislation
increasingly resembles a patchwork quilt. While there is a degree of consistency between the directives, at least in terms of content if not scope, a
clear hierarchy of equalities laws has been established.208 Whereas inequality arises in ubiquitous forms both in employment and wider society, requiring a response that recognises multi-dimensional disadvantage, the law is
developing along a hierarchical linear model which affords protection first
to one category of persons and later extends protection, not necessarily to
the same or similar extent of coverage, to other categories, in part due to
societal recognition of disadvantage and in part in response to demands
made by pressure groups and their coalitions of supporters.209 In the absence
of a general, indivisible, approach to equality, individuals must establish
a premise of difference based on unitary or essentialist classifications
that assume, for example, a simple man/woman, white/black, straight/gay
dichotomy. Essentialism is a concept based on a desire to unite a disadvantaged group but it is double-edged in practice because it ignores the
differences within groups and the simultaneous disadvantage that arises
from multiple or cumulative discrimination.210 As Fredman observes,211
the law has been captured by categories and there is now a need to
206

Decision 2001/51/EC, OJ 2001, L17/22.

See para 1 of the Explanatory Memorandum issued with the Commissions revised proposal, COM(2001) 321. The Council had reached a Common Position on the Commissions
original proposal on 23 July 2001(32/2001) OJ 2001, C307/5. In the light of the Commissions revised proposal the European Parliament has proposed extensive amendments to the
Councils Common Position at the second reading stage on 24 Oct 2001, A50358/2001.
208
See Waddington and Bell, n 54 above at 610.
209
See P Abrams, Historical Sociology (Open Books, Shepton Mallet, 1982) who notes, at
p 15, that what any particular group of people get is not just a matter of what they choose
to want but what they can force or persuade other groups to let them have.
210
For discussion see A Harris, Race and Essentialism in Feminist Legal Theory (1990)
42 Stanford Law Review 581; T Higgins, Anti-essentialism, Relativism and Human Rights
(1996) 19 Harvard Womens Law Journal 1419; cf M Nussbaum, Human Functioning and
Social Justice: In Defence of Aristotlean Essentialism (1992) 20 Political Theory 202.
211
See S Fredman, Equality: A New Generation? (2001) 30 Industrial Law Journal 145
at 159.
207

426 Combating Discrimination

reconceptualise the notion of difference which, instead of connoting
absolute otherness, or deviance from a norm, is about relationships
between and within groups. Ultimately, a single horizontal measure will
be required to overcome simplistic and unfair distinctions between groups
with some scope for special measures in respect of disability based on
advancing rights rather than mere protectionism.212
Nevertheless, the directives mark an important turning point for Community equalities law which, as we shall see in the next chapter, is becoming increasingly less reliant on the market imperative. Moreover, the
emphasis on group representation and the establishment of equalities bodies
is indicative of a general trend towards positive action to promote equality
rather than a negative obligation to refrain from discrimination.213 Further,
the directives require both the promotion of social dialogue214 and the
encouragement of dialogue with non-governmental organisations with a
legitimate interest in contributing to the fight against discrimination on
any of the listed grounds.215
The next stage involves a much bolder step towards recognising so-called
fourth generation duties which move beyond the individualised fault-based
model of existing anti-discrimination law and instead impose positive duties
on states, public bodies, employers and other decision-makers to introduce
equality measures and structural changes.216 Mainstreaming of equalities
policies and the establishment of group participation rights at all levels of
decision-making form the centrepiece of this rapidly emerging approach.
Positive duties subvert the existing paradigm because they do not depend
on the need to prove individual discrimination based on a disparate impact
of a specific criterion or practice and instead require evidence of structural
discrimination or under-representation.217
In the short to medium-term, programmatic action at Union level will
help to facilitate the development of this model at national level enabling
knowledge to be gained from pioneering examples.218 In particular, the
Communitys Framework Strategy on Gender Equality,219 based on Article
212

See the conclusions of Fredman, ibid at 15960; and Bell in Shaw, n 1 above at 170.
Fredman, ibid at 163.
214
Art 11 of the Race Equality Directive and Art 13 of the Framework Employment Directive.
215
Arts 12 and 14 respectively.
216
See B Hepple, M Coussey and T Choudhury, Equality: A New Framework, Report of
the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Hart,
Oxford, 2000). Discussed by Fredman (2001, Industrial Law Journal) n 211 above at 16364.
217
See Fredman, ibid at 164.
218
For example, in the UK, the Northern Ireland Act, 1998, places a positive duty on public
authorities to have due regard to the need to promote equality of opportunity when carrying out their functions. See Fredman, ibid at 165; and C McCrudden, The Equal Opportunity Duty in the Northern Ireland Act 1998: An Analysis in Equal Rights and Human
RightsTheir Role in Peace Building (Committee on the Administration of Justice Belfast,
(Northern Ireland) 1999) 1123.
219
Decision 2001/51/EC, OJ 2001, L17/22.
213

A Way Forward?

427

13 EC, offers a way forward by seeking to encourage such innovation

because:220
The persistence of structural, gender-based discrimination, double and often multiple discrimination faced by many women and persistent gender inequality justify
the continuation and strengthening of Community action in this field and the
adoption of new methods and approaches.

During the period of the Framework Strategy221 the programme will coordinate, support and finance the implementation of horizontal activities
under the fields of intervention which are defined as economic life, equal
participation and representation, social rights, civil life, gender roles and
stereotypes.222 Building on the commitment to promote gender equality in
Article 3(2) EC the strategy includes both gender mainstreaming policies
and specific actions targeted at women.
Early signs of this approach can be seen in the Commissions revised proposal to amend the Equal Treatment Directive223 which seeks to place an
obligation on those responsible under national law for access to training,
employment or occupation, and the conditions relating thereto to introduce procedures to prevent sexual harassment which may include a system
of confidential counsellors at the working place.224 Moreover, work related
to equality of treatment should be pursued in a planned and systematic
way, also at company level, where employers should be encouraged to
establish annual equality plans.225
At this stage these are tentative steps but they must be understood as part
of a much bigger picture. Increasingly, as we shall see in chapters 11 and
12, the Union is responding to the legitimacy crisis and persistent structural
problems, including inequality and disadvantage, by seeking to establish a
multi-level framework of governance which involves participation by new
actors, such as non-governmental equalities bodies, and embraces organisational and structural change.226 Within this fluid environment there is considerable scope for the gradual, if piecemeal, development of an approach
which shifts the emphasis of the law from individualised protection against
discrimination to positive duties to promote equality.
220

Recital 3.
20012005.
222
Art 2(2).
223
COM(2001) 321.
224
Draft recital 4a.
225
Draft recital 11.
226
See generally, E Szyszczak, The New Paradigm for Social Policy: A Virtuous Circle?
(2001) 28 Common Market Law Review 1125.
221

10
Reconceptualising Sex Equality
and Market Integration in the
Court of Justice
I INTRODUCTION

VER THE LAST decade the Court of Justice has been presented
with several gilt-edged opportunities to reappraise the concept of
equality in Community law.1 For much of this period the Court has
faced sustained criticism for failing to live up to its early promises to assert
sex equality as a fundamental right2 and tending to favour a strictly formal
approach to equality when market forces are most clearly at stake.3 Over
the same period we have seen the gradual elevation of the principle of sex
equality from a largely rhetorical commitment4 to a constitutional principle,5 mainstreamed in Articles 2 and 3(2) EC, and now expanded in
Article 141 [ex 119] EC to include the notion of full equality in practice.
Moreover, Community sex equality law does not exist in a vacuum. The
introduction of Union citizenship, Article 13 EC and the EU Charter of
Fundamental Rights, has raised fresh questions about the values that drive
the equality concept and its capacity to transcend stereotypical classifications of sex and gender and address the root causes of structural
disadvantage.

1
106 references on gender equality in employment by national courts had been decided
or were pending as of 1 Jan 2001. For a comprehensive overview, see C Kilpatrick, Gender
Equality: A Fundamental Dialogue in S Sciarra (ed) Labour Law in the Courts: National
Judges and the European Court of Justice (Hart, Oxford, 2001) 31130.
2
See S Fredman, European Community Discrimination Law: A Critique (1992) 21
Industrial Law Journal 119; and G More, Equal Treatment of the Sexes in European
Community Law: What Does Equal Mean? (1993) 1 Feminist Legal Studies 45.
3
See H Fenwick and T Hervey, Sex Equality in the Single Market: New Directions for the
European Court of Justice (1995) 32 Common Market Law Review 443.
4
G de Brca, The Role of Equality in European Community Law in A Dashwood and S
OLeary (eds) The Principle of Equal Treatment in E.C. Law (Sweet & Maxwell, London,
1997) 1334 at 13.
5
L Flynn, Equality Between Men and Women in the Court of Justice (1998) 18 Yearbook
of European Law 259 at 259.

430

Sex Equality, Market Integration and the Court of Justice

In this chapter two groups of cases have been selected for the purpose
of examining how far the Court has been able and willing to clarify and
redraw the concept of sex equality. The first group of cases are concerned
with the reach of discrimination based on, or on grounds of, sex under
Article 141 EC and the Equal Treatment Directive6 and, in the light of the
Courts jurisprudence on sex equality as a fundamental right, its possible
extension to embrace wider conceptions of sexual identity. In the second
group of cases the Court has been asked to rule on positive action measures, such as quotas for appointment or promotion aimed at equality of
results, and consider their compatibility with a conventional Community
model which takes, as its starting point, a neutral assumption of equality
between men and women. Finally, in a brief concluding section, there will
be an analysis of the extent to which the mainstreaming of sex equality and
the reformulation of Article 141 EC within the revised Social Chapter has
been reflected by a dynamic shift in the Courts appreciation of the economic and social aims of Community equalities law.

II SEX EQUALITY AS A FUNDAMENTAL RIGHTTHE LIMITS OF

THE LAW

Over dinner at a small restaurant in Cornwall early in 1992 a woman

known as P confided in her immediate employer S that she had a rare
medical condition known as Gender Identity Disorder7 and intended to
undergo surgery in order to change her biological sex (male) to suit her
sexual identity (female).8 This conversation set off a chain of events that
ultimately took them both to the Court of Justice. Ps employers were
initially supportive and reassuring but, in the ensuing months, attitudes
changed and, when she advised them that she would be returning to work
dressed as a woman, she was instructed to work from home. P was later
dismissed shortly before undergoing a final gender reassignment operation
in December 1992. When the case came before the members of the Truro
Industrial Tribunal they quickly realised that P had been discriminated
against because she was a transsexual undergoing gender reassignment and
asked the Court for guidance on whether her dismissal constituted a breach
of the Equal Treatment Directive. For the UK and the Commission, the
point of reference was discrimination against P, who remained a man under
6

Dir 76/207/EEC, OJ 1976, L39/40.

Based on Ps own account issued in a press release by Press for Change, BM Network,
London, April 1996. Gender Identity Disorder occurs where from childhood the brain
develops a female inclination while the bodys physical attributes are male, or vice versa. See
L Flynn, The Body Politic(s) of EC Law in T Hervey and D OKeeffe (eds) Sex Equality
Law in the European Union (Wiley, Chichester, 1996) 30120 at 328.
8
For a summary of the facts see paras 47 of the opinion of AG Tesauro in Case C13/94,
P v S and Cornwall CC [1996] ECR I2143.
7

Sex Equality as a Fundamental Right 431

English law, and the Directive applied where a woman in a similar situation would not suffer adverse treatment. P, on the other hand, threw down
the gauntlet by contending, from an anti-essentialist standpoint,9 that
Community law should apply to any person, regardless of whether they are
male or female, who is discriminated against on grounds of sex.10
For the Court in P v S and Cornwall CC11 the safe option would have
been to reassert the traditional man/woman dichotomy for, as AG Tesauro
aptly observed: The law dislikes ambiguities and it is certainly simpler to
think in terms of Adam and Eve.12 However, in an impassioned opinion,
the AG challenged the Court to make a courageous decision to construe
the Directive in a broader perspective by including all situations in which
sex appears as a discriminatory factor.13 Conceptually, the AG was attracted
by the notion that sex itself is a continuum, because men and women share
characteristics, behaviour and roles, and therefore the law should protect
those who are treated unfavourably precisely because of their sex and/or
sexual identity.14 While conceding that such an approach would be a step
too farand rejecting the notion that transsexuals are a third sex15he
advised that it was possible to protect those discriminated against by reason
of sex by applying the conventional comparator test once it was accepted
that Ps sexual identity was female, for, crucially, P would not have been
dismissed if she had remained a man.16 Hence the male comparator was, in
effect, Ps former self.17 To suggest that she had been dismissed only because
of her change of sex would, however, be a quibbling formalistic interpretation because, for the purposes of this case, sex was important as a social
parameter and thus:18
The discrimination of which women are frequently the victims is not of course due
to their physical characteristics, but rather to their role, to the image society has of
women. Hence the rationale for less favourable treatment is the social role which
women are supposed to play and certainly not their physical characteristics. In the
same way it must be recognised that the unfavourable treatment suffered by
9
In the sense that the traditional essentialist position requires every person to be formally
categorised as male or female. See Flynn in Hervey and OKeeffe, n 7 above at 31819.
10
Arts 2(1) and 5(1) of the Equal Treatment Directive, 76/207/EEC, OJ 1976, L39/40.
11
Case C13/94 [1996] ECR I2143. See the annotations by L Flynn (1997) 34 Common
Market Law Review 367; and C Stychin (1997) 2 International Journal of Discrimination and
the Law 217.
12
Opinion, para 17.
13
Paras 2324.
14
Para 17.
15
Para 22.
16
Para 18.
17
On this point, see R Wintemute, Recognising New Kinds of Direct Sex Discrimination:
Transsexualism, Sexual Orientation and Dress Codes (1997) 60 Modern Law Review 334 at
341; P Skidmore, Can Transsexuals Suffer Sex Discrimination? (1997) 19 Journal of Social
Welfare and Family Law 105 at 108; and A Sharpe, Transgender Jurisprudence: Dysphoric
Bodies of Law (Cavendish Publishing, London, 2002) p 149.
18
Para 20. Emphasis in the original.

432 Sex Equality, Market Integration and the Court of Justice

transsexuals is most often linked to a negative image, a moral judgment which has
nothing to do with their abilities in the sphere of employment.

In determining the rights of transsexuals the AG was mindful of developments in those Member States that have granted them the right to marry,
adopt children and enjoy pension rights in accordance with their new
sexual identity.19 He warned that:20
. . . the law cannot cut itself off from society as it actually is, and must not fail to
adjust to it as quickly as possible. Otherwise it risks imposing outdated views and
taking on a static role. [It must] keep up with social change, and must therefore be
capable of regulating new situations brought to light by social change and advances
in science.

It followed that what was considered as normal when the Directive was
adopted in 1976 should now be construed more broadly taking account
of its dual purpose of attaining the Treatys economic goals and satisfying
criteria for social justice by ensuring equal treatment between workers
whenever sex is a discriminatory factor.21 The issue at stake was a universal fundamental value, namely: the irrelevance of a persons sex with
regard to the rules regulating relations in society.22
In an extremely brief judgment the Court ruled in favour of P without
referring explicitly to the challenge posed by its AG or the merits of his
reasoning. Instead the Court focused narrowly on the fact that P had been
dismissed while undergoing gender reassignmentthe central issue raised
by the Tribunal. The Court appeared to recognise Ps female identity by
referring, without comment, to a definition of the term transsexual
adopted by the European Court of Human Rights in Rees,23 where it was
noted that transsexuals who have been operated on form a fairly welldefined and identifiable group. Implicitly P could be fitted in with this
group as she had begun the gender reassignment process and therefore there
was no need for the Court to consider the thorny question of whether P
was or had been female as a matter of Community law. In addition to Rees,
the Court drew support from repeated references in the Directive that there
should be no discrimination on grounds of sex.24 Moreover, the Directive
performs a wider function as an expression of the principle of equality as
a fundamental principle of law and,25 further, the right not to be discrimi19

Para 10. The AG referred to legislation in Sweden, Germany, Italy and the Netherlands.
Para 9.
21
Para 23.
22
Para 24.
23
Judgment, para 16. Rees v United Kingdom, judgment of 17 Oct 1986, para 38, Series
A No 106: the term transsexual is usually applied to those who, whilst belonging physically
to one sex, feel convinced that they belong to the other.
24
Para 17. Arts 2(1), 3(1) and 5(1).
25
Para 18.
20

Sex Equality as a Fundamental Right 433

nated against on grounds of sex is one of the fundamental human rights
whose observance the Court has a duty to ensure.26
Having briskly completed its reasoning, the essence of the Courts
judgment is contained in three consecutive paragraphs. First, the Court
addressed the issue of scope:27
Accordingly, the scope of the directive cannot be confined simply to discrimination
based on the fact that a person is of one or other sex. In view of its purpose and
the nature of the rights which it seeks to safeguard, the scope of the directive is also
such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned.
Such discrimination is based, essentially, if not exclusively, on the sex of the person
concerned . . .

Hence, in the specific case of gender reassignment, safeguarding the principle of equality requires an exception to the conventional male/female
designation, because P had begun the anatomical process of changing
sex.28 This apparently open-ended statement indicated a broad conception
of non-discrimination on grounds of sex, the logic of which raised the
possibility that the same reasoning might apply in cases involving discrimination against transgendered persons who are not undergoing gender
reassignment, or even in a case of discrimination based on sexual
orientation.29
Secondly, the Court sought to fit its judgment within the formal equality
model by observing that:30
Where a person is dismissed on the ground that he or she intends to undergo, or
has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before
undergoing gender reassignment.

For the Court, therefore, the comparator was a male who was not undergoing gender reassignment.31 Gender Identity Disorder (GID) does not
exclusively affect men and, it would appear, the same argument would
have applied regardless of whether the person had been a male-female or
26
Para 19. For support, see Case 149/77, Defrenne v Sabena III [1978] ECR 1365, paras
2627; and Cases 75/82 and 117/82, Razzouk and Beydoun v Commission [1984] ECR 1509,
para 16.
27
Paras 20 and 21. Emphasis added.
28
See Sharpe, n 17 above at 149.
29
See N Bamforth, Sexual Orientation Discrimination after Grant v South West Trains
(2000) 63 Modern Law Review 694 at 695; Wintemute, n 17 above at 350. This reasoning
was applied in the English courts in R v Secretary of State for Defence, ex parte Perkins [1997]
IRLR 297 at 303, per Lightman J.
30
Para 21.
31
See Wintemute, n 17 above at 34133, who suggests three different comparators: a nontranssexual male, a non-transsexual female, or P herself.

434

Sex Equality, Market Integration and the Court of Justice

female-male transsexual.32 The fact that Ps sexual identity had arisen from
her ongoing gender reassignment did not appear to affect the validity of
the comparison with a non-transsexual male.33 Indeed, on one reading, the
Courts ambivalence about whether P was male or female left open the possibility that this comparison was between persons of the same sex.34 In other
respects the Courts reasoning lacked rigour. In particular, the Court did not
address the intentions of the legislator35 and offered no explanation for
rejecting the UKs contention that a female employee should have been the
comparator even though the Court did not dispute Ps status as male under
English law.36
Thirdly, while eschewing the social justice rationale of the AG, the Court
indicated that the principle of equality has both an economic and moral
foundation by declaring that:37
To tolerate such discrimination would be tantamount, as regards such a person, to
a failure to respect the dignity and freedom to which he or she is entitled, and which
the Court has a duty to safeguard.

Barnard has ventured that it might be possible to detect the introduction

of a new moral dimension to the principle of equality, raising the principle
to a higher plane, perhaps even taking precedence over treaties and secondary legislation.38 Was this merely a rhetorical commitment to be utilised
only in those cases where the Court is willing to use equality as a tool of
interpretation for policy reasons? Unlike the AG, the Court did not construct its judgment upon a foundation of social justice or structural disadvantage based on sexual stereotyping. While the Court offered a discourse
on fundamental rights before turning to the question of scope, a reversal
of its conventional approach,39 its application of fundamental rights as a
safeguard was only possible once the formal requirement for a comparator
32

See Flynn (1997, Common Market Law Review) n 11 above at 37677, who distinguishes
GID from pregnancy on the basis that the latter is a physiological condition unique to women
rendering a comparison with a male, real or imaginary, unnecessary; cf M Bell, Shifting
Conception of Sexual Discrimination at the Court of Justice: from P v S to Grant v SWT
(1999) 5 European Law Journal 63, who contends, at 67, that it is the absence of a genuine
comparator that is relevant and therefore the logic of automatic sex discrimination should
apply in this scenarioas in Case 177/88, Dekker v Stichting Vormingscentrum voor Jong
Volwassenen [1990] ECR I3941.
33
See Bell, ibid at 6768.
34
See Flynn (1997, Common Market Law Review) n 11 above at 377
35
Ibid at 375.
36
Ibid at 377.
37
Para 22. On this point see C Barnard, P v. S: Kite Flying or a New Constitutional
Approach? in Dashwood and OLeary, n 4 above, 5979 at 6973.
38
Ibid at 72. See AG Tesauros reference, at para 20, to equality as a fundamental and
inalienable value. See also the views of Mancini writing extra-judicially: G Mancini and D
Keeling, Democracy and the European Court of Justice (1994) 57 Modern Law Review 175
at 179.
39
See Flynn (1997, Common Market Law Review) n 11 above at 384.

Sex Equality as a Fundamental Right 435

had been satisfied. In this sense the Courts judgment can be reconciled
with contemporaneous jurisprudence where the Court had taken a strictly
formalistic approach to equality.40 The exact reach of the principle was left
uncertain although, as Barnard concludes, the mechanics of its application
were likely to undermine its effectiveness.41
The immediate significance of the judgment in P v S lay with its potential for extending protection under Community sex equalities law to other
groups discriminated against on grounds of, or based on sex.42 Whereas
P was dismissed because of her sexual identity as a transsexual undergoing
gender reassignment, it would take a quantum leap for the same argument
to be extended in a case of discrimination based on sexual orientation.
Moreover, whereas P v S might be partly explained by the relatively small
number of transsexuals,43 the economic and political implications for the
Member States of extending the reach of the Directive to homosexuals, who
form a significant proportion of the population,44 would be far more significant.45 Remarkably, but perhaps not surprisingly,46 the Court was shortly
presented with an opportunity to address this question in Grant v SouthWest Trains.47
Lisa Grant, a clerical worker with South-West Trains (SWT), was entitled under her employers contractual regulations to travel concessions for
herself, her spouse and dependants. Concessions were granted to both a
legal spouse and one common law opposite sex spouse subject to a declaration that a meaningful relationship had existed for two years or more.
Ms Grant requested a travel concession for her female partner and submitted the declaration. SWT refused on the grounds that Ms Grants partner
was not of the opposite sex. SWT conceded that the travel concessions were
pay for the purposes of Article 119 [now 141] EC, but argued that there
was no discrimination based on sex within the meaning of that provision
because a gay man seeking a travel concession for his partner would be
40
Ibid at 378. For example, Case C342/93, Gillespie and others v NHSSB and others
[1996] ECR I475, where, at para 16, the Court stated that it is well settled that discrimination involves the application of different rules to comparable situations or the application
of the same rule to different situations.
41
Barnard in Dashwood and OLeary, n 4 above at 73.
42
Art 141 [ex 119] EC refers to discrimination based on sex.
43
According to figures supplied by P, 1 in 30,000 males and 1 in 100,000 females seek
to change sex by means of surgery, AGs opinion, para 9. The transsexual pressure group,
Press for Change, estimates that there are 4050,000 transsexuals in Europe: Victory in the
European Court of Justice, Press Release, BM Network, London, 30 Apr 1996.
44
Approximately 30 million EU citizens according to AG Elmer in Case C249/96, Grant
v South-West Trains [1998] ECR I621, para 42 of the opinion.
45
See V Harrison, Using EC Law to Challenge Sexual Orientation Discrimination at Work
in Hervey and OKeeffe, n 7 above, 26780, at 279.
46
Stonewall, a UK-based gay and lesbian pressure group, had embarked on a strategic
litigation strategy in the wake of the judgment in P v S. See further, Bell (1999, European Law
Journal) n 32 above at 68.
47
Case C249/96 [1998] ECR I621.

436 Sex Equality, Market Integration and the Court of Justice

treated in the same way. In their view, the judgment in P v S related to the
sex or sexual identity, male or female, to which a person belongs to or is
being assigned and not, as in Ms Grants case, to the workers sexual orientation or sexual preference, which is a matter of behaviour or conduct.
Ms Grant, relying on the AG in P v S, argued that there is discrimination
whenever sex is a discriminatory factor and therefore the comparator was
her male predecessor, Mr Potter, who had received the benefit in respect of
his female partner. Furthermore, the term based on sex should be interpreted as including a persons sexual orientation in cases where prejudicial
treatment relates to the sexual behaviour normally expected of a person of
a given sex. In the period between the reference and the Courts judgment,
on 17 February 1998, the Amsterdam Treaty, including the draft of what
is now Article 13 EC, had been signed but was awaiting ratification.
The first question at stake concerned whether or not there had been
discrimination based on sex contrary to Article 119 [now 141] EC?48 AG
Elmer, concurring with Ms Grant, considered that the Court in P v S had
taken a decisive step away from the traditional notion of equal treatment
based on a comparison between a female and male employee.49 The essential point was that the alleged discrimination against Ms Grant was based
exclusively, or essentially, on gender.50 By implication, the function provided
by a comparator, in the traditional sense of establishing an existing sexbased criterion, was no longer necessary if other evidence could be adduced,
such as SWTs regulations concerning the travel concessions.51 Such an
interpretation renders the principle appropriate for the cases of gender discrimination that come before the courts in present-day society.52 While this
reasoning is superficially attractive it leaves open the question of who the
comparator should be if discrimination is established?53
Nevertheless, the AGs emphasis on gender rather than sex was significant. As Flynn explains,54 whereas sex connotes those irreducible, biological
differentiations between men and women, gender, which encompasses
the assumptions, expectations, habits and usages which identify a particular
individual to themselves and others as being a man or a woman, is socially
constructed. For the AG it was no longer appropriate to make a simplistic
comparison between biological males and females, or the possession of
48

Para 24.
Opinion, para 15
50
Ibid.
51
See K Armstrong, Tales of the Community: sexual orientation discrimination and EC
law (1998) 20 Journal of Social Welfare and Family Law 455 at 459.
52
Para 15. Emphasis added.
53
See further, Armstrong, n 51 above at 460.
54
See L Flynn, Gender Equality Laws and Employers Dress Codes (1995) 24 Industrial
Law Journal 255 at 256. See further, K Donovan, Sexual Divisions in Law (Wiedenfield
& Nicholson, London, 1985) pp 6077; J Squires, Gender in Political Theory (Polity Press,
Cambridge, 1999) ch 2.
49

Sex Equality as a Fundamental Right 437

physical attributesfactors that had influenced the Court in P v Sbut
rather, it was necessary to take account of gender in a way that includes
beliefs or attitudes towards the social roles or behaviour associated with
being one sex or the other.55 Moreover, there was an additional dimension in
this case because the wording of SWTs regulations switched attention to the
gender of the employees partner. On this point the AG was both creative and
emphatic. Both the Equal Treatment Directive and Article 119 [now 141] EC
should be construed as prohibiting discrimination in law or in fact against an
employee not solely on the basis of the employees own gender but also the
gender of the employees child, parent or other dependant.56 It followed that,
even though there was no reference in SWTs regulations to a specific sex, discrimination was exclusively gender-based.57
For the Court the answer to this question was straightforward and
much narrower. First, based on a literal reading of SWTs regulations, the
Court ruled that the travel concessions applied regardless of the sex of
the worker concerned.58 Travel concessions were refused to a male worker
living with a person of the same sex, just as they were to a female worker
in the same positionclassic like-for-like Aristotelian equality. As the
condition in question was formally equal it could not be interpreted as
constituting discrimination based on sex. Both a lesbian and a gay man
would be denied by SWTs policy of a right to the travel concession for
their partner andas they each suffered equal miserythere was no discrimination.59 The Court deemed it unnecessary to consider either the
broader impact of SWTs regulations on Ms Grant and/or her partner, or
the extent to which SWTs policies were influenced by sexual stereotyping
and motivated by prejudice against lesbians and gay men. Moreover, while
the rule appeared to be gender-neutral, its application was dependent on
the employers knowledge of the employees sex and her relationship with
her female partnera sex-based criterion.60 Nor was any attempt made to
apply or indeed distinguish P v S on this point even though the UK had
suggested, without success, that the comparator in that case was a femalemale transsexual, also based on the logic of equal misery.61 Hence, sex
discrimination was ruled out even before the issue of fundamental rights,
or indeed the scope of Community law, was considered, an exact reversal
of the line of reasoning in P v S. Ironically, this may be partly explained by
the fact that here it was much easier to identify a comparator and dismiss
the applicants case, whereas in P the issue was more problematic and the
55
56
57
58
59
60
61

Armstrong, n 51 above at 458.

Para 16.
Paras 2325.
Judgment, para 27.
See Bell (1999, European Law Journal) n 32 above at 70.
See Flynn (1998, Yearbook of European Law) n 5 above at 282.
See Bell (1999, European Law Journal) n 32 above at 66.

438 Sex Equality, Market Integration and the Court of Justice

Courts method of determining the comparator was both opaque and
unconvincing. For the Court in Grant it was apparently an unproblematic
fact that both Ms Grant and her putative gay comparator both faced discrimination because they had sexual preferences that departed from the
assumed societal norm for their sex.
Second, the Court examined whether Community law requires that all
employers should regard stable relationships between two persons of the
same sex as equivalent to marriage or stable relationships outside marriage
between two persons of the opposite sex?62 In fact Ms Grant and her partner
were only seeking equivalence with other unmarried couples.63 On the latter
point, the Court conceded that cohabitation of same-sex couples is treated
as equivalent to a stable heterosexual relationship outside marriage in most
Member States.64 However, based on its own false premise, the Court noted
that such equivalence had not been established at the level of the Community or under the ECHR,65 and therefore, as the law stood at the time, there
was no obligation on employers to treat such relationships as equivalent to
either marriage or a stable relationship outside marriage with a partner of
the opposite sex. The Courts analysis was highly selective and no consideration was given to the fact that eight out of 15 Member States had enacted
relevant legislation prohibiting such discriminatory pay practices.66 By contrast, the AG felt no need to pursue this point because he had already found
that SWTs requirement that the cohabitee should be from the opposite sex
was a discriminatory criterion derived from the sex of the employee.67
Third, the Court evaluated Ms Grants alternative submission that
differences of treatment based on sexual orientation were included in discrimination based on sex under Article 119 [now 141] EC.68 Support for
this contention can be found in the observations of the UN Human Rights
Committee on the interpretation of a similar provision in the International
Covenant on Civil and Political Rights.69 In a sweeping assessment, the
62

Para 24.
See Bell (1999, European Law Journal) n 32 above at 72.
Para 32.
65
The Court referred, at para 33, to the narrow interpretation of the right to respect for
family life under Art 8 ECHR where the European Court of Human Rights had consistently
held that stable homosexual relationships do not fall within the scope of that right: X and
Y v United Kingdom, 3 May 1983, Appl No 9369/81; S v United Kingdom, 14 May 1986,
Appl No 11716/85; and Herkhoven and Hinke v The Netherlands, 19 May 1992, Appl No
15666/89. Also, the European Court of Human Rights had held discrimination on the grounds
of sexual orientation was not sex discrimination under Art 14 ECHR: C and L M v United
Kingdom, 9 Oct 1989, Appl No 14753/89; and B v United Kingdom, 10 Feb 1990, Appl No
16106/90.
66
Flynn (1998, Yearbook of European Law) n 5 above at 283.
67
See Armstrong, n 51 above at 463.
68
Para 37.
69
The Committee had found that under Art 28 of the Covenant the term sex is taken as
including sexual orientation: Communication No 488/1992, Toonen v Australia, 31 Mar
1994, 50th session, point 8.7.
63
64

Sex Equality as a Fundamental Right 439

Court determined that, as the Committee is not a judicial body and its
decisions have no binding force,70 it followed that although the Covenant
is one of the fundamental rights instruments that it takes into account when
applying the general principles of Community law, this observation did not
reflect a generally accepted interpretation of the concept of discrimination
based on sex and could not, in any case, provide a basis for the Court
to extend the scope of Article 119 [now 141] EC.71 In other words, even
if the Court had accepted that Ms Grants fundamental rights had been
violatedbehaviour which, by analogy with P v S, would have been deemed
intolerableit would have offered her no protection because Community
law as it stands at present does not cover discrimination based on sexual
orientation.72
Ultimately the question boiled down to the issue of the scope of
Community law. Drawing on its finding in Opinion 2/94,73 concerning the
Communitys capacity to accede to the ECHR, the Court held that fundamental rights, in themselves, and the Courts observance thereof cannot
have the effect of extending the scope of the Treaty provisions beyond the
competences of the Community.74 Hence, the scope of Article 119 [now
141] EC was to be determined only by having regard to its wording and
purpose, its place in the scheme of the Treaty and its legal context.75 In an
astute example of judicial self-positioning76 the Court deferred to the Community legislature which would have the opportunity to take appropriate
action under the new Article 13 EC once the Amsterdam Treaty was ratified.77 However, the analogy with Opinion 2/94 is unconvincing because
the Court was not being asked to consider a new area of competence in
Grant but rather to interpret Community law on equal pay, an area of existing competence.78
While the Courts judgment in Grant may seem somewhat otiose today,
in the light of the subsequent adoption of the Framework Employment
Directive, it remains important precisely because of what it reveals about
the shallowness of the Courts commitment to the principle of equality
when faced with a hard case. The judgment in P v S may have appeared
superficially courageous but, rather than being a decision of potential
70
Para 46. For criticism on this point see Flynn (1998, Yearbook of European Law) n 5
above at 28485.
71
Paras 4647.
72
Para 47. An outcome predicted several years earlier. See A Clapham and J Weiler,
Lesbians and Gay Men in the Community Legal Order in K Waaldijk and A Clapham
(eds) Homosexuality: A European Community Issue (Nijhoff, Dordrecht, 1993) 1169 at 21.
73
[1996] ECR I1759.
74
Para 45.
75
Para 47.
76
Armstrong, n 51 above at 461.
77
Para 48.
78
See Bamforth, n 29 above at 711.

440 Sex Equality, Market Integration and the Court of Justice

constitutional importance,79 it represents an example of what de Brca has
aptly described as the Courts selective application of the equality principle,80
a form of judicial gesture politics. Transsexuals are a fairly well-defined
and identifiable group who are in the process of changing, or have changed,
sex.81 By finding in favour of P, the Court was able to use the language of
rights to legitimate the position of transsexuals and further the integration
process for this group,82 adding a certain moral content to the law in this
area, without necessarily, as Grant has revealed, opening the door for that
same process to be applied to another group. Equally the vocabulary of
rights can be divisive83 if certain individuals and groups are deemed to be
excluded by a Union that professes to uphold common values.84
Nevertheless, while the judgment in P v S was not quite the decisive step
imagined by AG Elmer, it remains an important decision because it provides a basis for asserting the autonomy of the equality principle in new
contexts.85 The Courts unusual reasoning may be explained by the anomalous situation it was seeking to address.86 Grant, on the other hand, was
a case too far,87 first, because lesbians and gay men are more numerous than
transsexuals, a factor which should not affect the standard of protection
they are afforded,88 but raises the prospect of significant economic consequences for Member States and employers. Second, perhaps more importantly, the Court, if it had ruled in Ms Grants favour, would have had to
directly address wider gender issues such as sexual stereotyping and, more
controversially, moral attitudes concerning sexual orientation.89 Such issues,
which strike at the core of an individuals sense of identity or personhood,
challenge deeply entrenched values and moral assumptions about divisions
in society and touch upon the national psyche. Not surprisingly, the more
79
See Barnard in Dashwood and OLeary, n 37 above, who, at 59, observed in the aftermath of the judgment that: In the annals of Community law history, the judgment in P v. S
might be held as the Van Gend en Loos, or the Costa v ENEL of its time. Or it may not.
80
de Brca in Dashwood and OLeary, n 4 above at 15.
81
P v S, para 16.
82
See further, G de Brca, The Language of Rights and European Integration in J Shaw
and G More, New Legal Dynamics of European Union (Clarendon Press, Oxford, 1995)
2954 at 3943.
83
Ibid at 4552.
84
See the preamble of the EU Charter of Fundamental Rights, OJ 2000, C364/1. Discussed
in ch 12.
85
See for example, Case C185/97, Coote v Granada [1998] ECR I5199, where the Court
applied fundamental rights, as expressed in P v S, as a basis for a broad interpretation of Art
6 of the Equal Treatment Directive. Discussed by Flynn (1998, Yearbook of European Law)
n 5 above at 284.
86
Flynn, ibid at 280.
87
Nicholas Underhill QC, representing SWT declared that it was: a bridge too far and
they [the Court] werent going to cross it: The Times, 18 Feb 1998. See S Terry, A Bridge
Too Far? Non-Discrimination and Homosexuality in European Community Law (1998) 4
European Public Law 487 at 505.
88
See Bell (1999, European Law Journal) n 32 above at 75.
89
Ibid at 76.

Sex Equality as a Fundamental Right 441

contested the issue the greater the Courts reluctance to apply or elaborate
fundamental rights.90
The Courts reference to the emergence of Article 13 EC was presented
as almost an aside but it was, undoubtedly, an important component in its
collective thought. Article 13 EC lists sex and sexual orientation separately and the Court would have been aware of potential pitfalls that might
arise in a future scenario if these concepts overlapped. However, Ms Grant
was not seeking to subsume sexual orientation discrimination within sex
discrimination91 but rather, as Wintemute has shown,92 to ask whether:
. . . distinctions based on sexual orientation, when examined from a different angle,
are in fact also or simultaneously on grounds of sex because they are based on the
sexes of the individuals concerned.

The Court did not address this question but if the scope of Community sex
equalities law cannot be confined simply to discrimination based on the
fact that a person is of one or other sex,93 it must be capable of extension
to encompass gender discrimination by reference to assumed norms of
behaviour by persons of either sex.94 The conservatism of the Court in
Grant can now be seen as even more striking when contrasted with bolder
steps in Strasbourg, where the European Court of Human Rights has now
held, in Smith and Grady v United Kingdom,95 that sexual orientation discrimination is a violation of the right to respect for private life guaranteed
by Article 8 ECHR. Further, in da Silva Mouta v Portugal,96 the Strasbourg
Court held that sex discrimination is undoubtedly covered by Article 14
ECHR,97 although not on the basis that sexual orientation discrimination
is sex discrimination, but rather because that provision contains a nonexhaustive enumeration.98 It should also be noted that Article 14 ECHR
only prohibits discrimination in conjunction with other substantive rights
protected by the Convention. Nevertheless, these developments indicate
that, should a further case be referred to Luxembourg, the Court will have
to re-evaluate its analysis of case law under the Convention.99
90
Hence the Courts equally conservative approach in a case involving the legality of the
provisions on abortion under the Constitution of Ireland: Case C159/90, SPUC v Grogan
[1991] ECR I4685.
91
See Bamforth, n 29 above at 698.
92
Wintemute, n 17 above at 344; cf J Gardner, On the Ground of Her Sex(uality) (1998)
18 Oxford Journal of Legal Studies 167 at 17983.
93
P v S, para 20.
94
See Bamforth, n 29 above at 701.
95
Appl Nos 33985/96 & 33986/96 [2000] 29 EHRR 493.
96
Appl No 33290/96 [2001] 31 EHRR 47.
97
Para 28.
98
Ibid. Under Art 14 ECHR: The rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority, property, birth or other status (emphasis added).
99
See Bamforth, n 29 above at 719.

442

Sex Equality, Market Integration and the Court of Justice

Grant represents a missed opportunity for the Court to apply its reasoning in P v S within the context of sex equality without prejudicing the
right of the legislature to take appropriate action to combat discrimination
based on sexual orientation under Article 13 EC. Further, as the judgment
in D and Sweden v Council has shown,100 the social conservatism expressed
by the Court in Grant has become, if anything, more pervasive. For not
only did the Court in D uphold a 15-year old authority on the meaning of
the term spouse,101 excluding same-sex partnerships, it ignored legislative
developments in the Member States recognising such partnerships on the
basis that they are akin to marriage.102 The Court was also prepared to
defer to the legislature even when interpreting outmoded terminology in the
Communitys own Staff Regulations.103 The chasm between the rhetoric and
the reality of the protection of rights,104 as expressed by the Court, appears
to be widening just as the EU is seeking to embrace fundamental rights as
the centrepiece of a new constitutional paradigm.

III THE COURT OF JUSTICE AND POSITIVE ACTIONTOWARDS

FULL EQUALITY IN PRACTICE?

Within the Community legal order positive action is ambiguously situated.

Under the revised Article 141(4) EC,105 the principle of equal treatment
shall not prevent Member States from adopting measures providing for
specific advantages with a view to ensuring full equality in practice in
working life for members of the under-represented sex. Article 2(4) of the
Equal Treatment Directive, adopted 20 years earlier, has served a similar
but more modest purpose, seeking to promote equal opportunity between
men and women within the field of the Directive. Paradoxically, these provisions, although negatively expressed, are not conventional derogations in
the sense that, far from lessening or impairing the objective of equality, they
seek to give it strength and substance, albeit through non-mandatory action.
A further paradox arises because, although such measures are designed
100
Cases C122/99P and C125/99P [2001] ECR I4139. Noted by E Ellis (2002) 39
Common Market Law Review 151. Discussed in chs 9 and 12.
101
Case 59/85, Netherlands v Reed [1986] ECR 1283. Discussed by de Brca, n 4 above
at 19; and R Amy Elman, The Limits of Citizenship: Migration, Sex Discrimination and SameSex Partners in EU Law (2000) 28 Journal of Common Market Studies 729 at 73437.
102
At the time of the judgment same-sex partnerships were legally recognised in the
Netherlands, Denmark and Sweden. By Sept 2001, laws had also been adopted in Germany
and Finland. See Ellis, n 100 above at 152.
103
The Court would have been aware of the introduction of a new Regulation requiring
equal treatment of all officials regardless of their sexual orientation. The new Regulation had
not entered into force at the material time of the proceedings. See Reg 781/98/EC, OJ 1998,
L113/4.
104
See Armstrong, n 51 above at 466.
105
Replacing Art 6(3) of the Agreement on Social Policy.

The Court of Justice and Positive Action 443

to boost de facto equality106 for a collectively disadvantaged group, they
may contravene equality in law. Indeed, the more ambitious the measure,
designed to achieve equality of results, the more likely it will be deemed
inconsistent or disproportionate with the non-discrimination principle and
the right of the individual to equal treatment.
Positive action is also ambiguous conceptually. While the terms positive
action107 and affirmative action may be used interchangeably, the aims
and means of such action are much contested. The label of positive action
has been affixed to activities such as recruitment or outreach campaigns
and, more readily, to various forms of reverse discrimination based on
targets, benchmarks or quotas.108 While some measures seek to promote
equal opportunities and merit to improve the life chances of underrepresented groups in society who wish to compete in the workplace, others
are designed to systematically eradicate both past disadvantage and latent
prejudice by eliminating obstacles affecting groups or persons in order to
produce equality of outcomes.
While fierce battles have been waged over affirmative action in the US
for the last 40 years,109 Germany has provided the setting for a series of
more modest, but no less intensely fought, European skirmishes. From the
mid-1980s quota systems have been introduced at both federal and regional
level for the advancement of women in areas of public employment to
which women have traditionally been denied access.110 Such measures are
intended to be compatible with the aim of removing existing inequalities
which affect womens opportunities in the labour market under Article 2(4)
of the Equal Treatment Directive,111 as a means of achieving the aim of

106
See the Commissions proposal for a Third Community Action Programme on Equal
Opportunities for Women and Men (19911995), COM(90) 449: Introduction, para 2.
107
Positive action is a broad term which can be applied to a wide variety of equalities policies. It will be used here in preference to affirmative action which, according to
McCrudden, is used in the US specifically to refer to actions taken to identify and replace
discriminatory employment practices, and to develop practices which result in the greater
inclusion and participation in the workforce of women and minorities. See C McCrudden,
Rethinking Positive Action (1986) 15 Industrial Law Journal 219 at 22021.
108
Ibid at 22325.
109
See especially, S Fredman, Reversing Discrimination (1997) 113 Law Quarterly Review
575 at 59096; C MacKinnon, Reflections on Sex Equality under Law (1991) 100 Yale Law
Journal 1281; and S Douglas-Scott, Affirmative Action in the US Supreme Court: the Adarand
casethe Final Chapter [1997] Public Law 43.
110
For discussion, see J Shaw, Positive Action for Women in Germany: The Use of Legally
Binding Quota Systems in B Hepple and E Szyszczak (eds) Discrimination: The Limits of Law
(Mansell, London, 1992) 386411; N Colneric, Making Equality Law More Effective: Lessons
from the German Experience (1996) 3 Cardozo Womans Law Journal 229; C Barnard and
T Hervey, Softening the approach to quotas: positive action after Marschall (1998) 20 Journal
of Social Welfare and Family Law 333 at 33334; and D Schiek, Positive Action in Community Law (1996) 25 Industrial Law Journal 239 at 24142. Schiek notes, at 241, that laws
have been introduced in 14 Lnder since 1989.
111
Dir 76/207/EEC, OJ 1976, L39/40.

444

Sex Equality, Market Integration and the Court of Justice

equal treatment under Article 2(1) thereof, and therefore, by legitimising

preferential treatment, give legal substance to the rhetoric of sex equality
derived from Community soft law.112
Schiek has identified four varieties of quotas in the German public
sector.113 First, in order to comply with the merit principle in the Federal
Constitution,114 which requires an individual to be treated according to
her or his own personal characteristics, a number of Lnder introduced
flexible or weak quotas which allow a systematic preference for women
in jobs or training only when male and female candidates are equally qualified based on a fixed percentagesuch as the proportion of women in the
labour force as a whole.115 Normally there will be a derogation clause which
requires countervailing factors concerning the individual candidates to be
taken into account.116 Second, in some cases strict quotas have been introduced which reserve a set percentage of positions for women. For example,
in Berlin and Hessen 50 per cent of trainee places are reserved for women
provided that enough women apply.117 Third, result quotas may be used
whereby goals and timetables may be set in a plan to achieve a gender
balance over a given period of time. In Hessen, where women are underrepresented, the plan requires that at least every second vacancy must be
filled by a woman with a derogation where there are not enough women
qualified for the position. Fourth, some systems combine result quotas
with flexible and strict quotas.
Quotas are the most contentious form of positive action precisely
because, as Peters observes, they apply in situations where a single slot is
available for one of the applicants and therefore the quota necessarily and
immediately excludes the competitor.118 Hence, although quotas are incongruent with the liberal paradigm of equality in law, is it possible for unequal
treatment to be justified in order to achieve a just outcome in fact?119 The
Court was faced with precisely this challenge in a series of Article 234 [ex
177] EC references from German courts.
In the first case, Kalanke,120 the issue at stake concerned the legality of a
tie-break system for promotions in the City of Bremen. In situations where
112
Shaw in Hepple and Szyszczak, n 110 above at 387. In particular to give effect to soft
law pronouncements such as Council Recommendation 84/635/EEC on the promotion of positive action for women, OJ 1984, L331/34.
113
See D Schiek, Sex Equality Law After Kalanke and Marschall (1998) 4 European Law
Journal 148 at 149.
114
Art 33(II).
115
Shaw in Hepple and Szyszczak, n 110 above at 395.
116
Ibid at 405.
117
Schiek (1998, European Law Journal) n 113 above at 150.
118
A Peters, The Many Meanings of Equality and Positive Action in Favour of Women
under European Community LawA Conceptual Analysis (1996) 2 European Law Journal
177 at 178.
119
Ibid at 184.
120
Case C450/93, Kalanke v Freie Hansestadt Bremen [1995] ECR I3051.

The Court of Justice and Positive Action 445

women were under-represented in the relevant area, in this case horticultural managers, a woman would be given priority over an equally qualified
man. Under-represented areas were those where less than 50 per cent of
staff were women. Therefore, although this was not a strict quota it nevertheless predetermined the result in this instance. The Court, in a taciturn
judgment, was not prepared to countenance a quota system that gave automatic priority to women:121
National rules which guarantee women absolute and unconditional priority for
appointment or promotion go beyond promoting equal opportunities and overstep
the limits of the exception in Article 2(4) of the Directive.
Furthermore, in so far as it seeks to achieve equal representation of men and women
in all grades and levels within a department, such a system substitutes for equality
of opportunity as envisaged in Article 2(4) the result which is only to be arrived at
by providing such equality of opportunity.

In order to explain the Courts reasoning and the highly contentious

assumptions that underlie the judgment it is necessary to refer to the opinion
of AG Tesauro. Firstly, the AG analysed the role of positive action as a
means of achieving equal opportunities.122 In particular, he asked whether
the term equal opportunities refers to starting points or points of arrival?
Relying heavily on jurisprudence from the US, he asserted that equal opportunities means putting people in a position to attain equal results and hence
restoring conditions of equality as regards starting points.123 From this perspective both candidates had equal qualifications and therefore an equal
footing at the starting block. This helps to make sense of the Courts rather
opaque reference to substituting the result of equal opportunity for equal
opportunity itself as provided for by Article 2(4).124 The equal starting
points notion is, as Fredman astutely observes,125 deceptively simple if one
views equal opportunities as merely a procedural requirement derived from
an idealised liberal assumption of symmetry between individuals, but it disregards a more compelling substantive equality model which, by seeking
equality of results, takes account of the extent to which in reality an individuals opportunities are determined by their social and historical status as
a member of a disadvantaged group.126
Secondly, while recognising that the attainment of substantive equality,
or equality of outcomes, is a legitimate aim of positive action,127 the
AG suggested that this could only be pursued under Article 2(4) of the
121

Paras 2223.
Opinion, para 8.
123
Para 13.
124
Para 23. See further, L Senden, Positive Action in the EU Put to the Test: A Negative
Score? (1996) 3 Maastricht Journal 146 at 149.
125
Fredman (1997, Law Quarterly Review) n 109 above at 579.
126
Ibid at 578.
127
Opinion, para 15.
122

446

Sex Equality, Market Integration and the Court of Justice

Directive through measures designed to achieve an actual situation of equal

opportunities.128 Hence, as the Court had previously held, Article 2(4)
authorises treatment which, although discriminatory in appearance, is in
fact intended to eliminate or reduce actual instances of equality which may
exist in the reality of social life.129 Interpreting this statement narrowly, the
AG advised that, although positive action may be used to raise the starting
threshold of the disadvantaged category, it could not be applied as a means
of remedying, through discriminatory measures, a situation of impaired
equality in the past.130 The logic of this reasoning is that the position of
the male is the norm in the sense that substantive equality can be understood as placing women in a position to reach the same results as men.131
As Peters explains,132 the compensatory rationale is unhelpful and an obfuscation because a broader conception of substantive equality requires
account to be taken not only of past discrimination but also of the reality
of latent prejudices and internalised role expectations which are reflected
in the organisation of the workplace and family life. When these factors are
taken into account it is obvious that a test which assumes individual merit
derived only from equal qualifications is inadequate and renders the commitment to removing existing inequalities in Article 2(4) vacuous.
Thirdly, while the AG recognised that Article 2(4) is concerned with
effectiveness and does not operate as a genuine derogation, he applied a
proportionality test that effectively limited its scope as a basis for national
measures. Ultimately the measure went beyond what was deemed necessary
to achieve equality of opportunities for women because it aimed to confer
the results on them directly.133 Moreover, once that conclusion had been
reached it followed that the Bremen law was a violation of the fundamental right of equality.134
The Court went further by treating Article 2(4) as a derogation that
must be interpreted strictly.135 Such an interpretation undermines the very
purpose of Article 2(4) which seeks to further the objective of equality that
underlies the Directive and not restrict it. Paradoxically, as Szyszczak
notes,136 the Court had turned its face against forms of positive action which
bring about immediate and concrete equality. An alternative approach
would recognise that measures aimed at rectifying existing inequalities
cannot be regarded as discriminatory as they are designed to establish equal-

128
129
130
131
132
133
134
135
136

Opinion, para 15.

Case 312/86, Commission v France [1988] ECR 6315, para 15.
Opinion, para 19.
Peters, n 118 above at 191.
Ibid.
Opinion, para 25.
Paras 2728.
Judgment, para 21.
E Szyszczak, Positive Action After Kalanke (1996) 59 Modern Law Review 876 at 883.

The Court of Justice and Positive Action 447

ity and therefore form part of the equality principle.137 Moreover, neither
the AG nor the Court were able to provide a satisfactory explanation for
upholding Mr Kalankes claim despite the fact that it was an assumed fact
that there was no difference between the two candidates on individual
merit.138 Random selection by spinning a coin was, by implication, acceptable but automatic selection by quota was not.139
Not surprisingly the judgment in Kalanke generated considerable opposition, not least in Germany and among academics,140 but it also turned a
spotlight on the limitations of the liberal equality model and provoked
much discussion about the prospects for an alternative approach that might
legitimise positive action, including quotas, where such measures contribute
to the achievement of equality in practice. In the immediate aftermath of
Kalanke the Commission swiftly issued a Communication that emphasised
the fact that the Court had not formally outlawed quotas.141 Many positive
action measures remained lawful so long as they did not give automatic and
unconditional preference to women. Moreover, the Commission proposed
an amendment to the Directive on the interpretation of Article 2(4) in order
to clarify the legal position.142 In the meantime the Court was given an early
opportunity to reconsider its stance.
In Marschall143 the Court was asked to rule, once again, on a quota
system based on a tie-break rule between equally qualified male and female
candidates for promotion in the public service in Germany, in this instance
in the Land of North Rhine-Westphalia. Where there were fewer women
than men in the relevant sector of the authority, women were to be given
priority for promotion in the event of equal suitability, competence and
professional performance, unless reasons specific to an individual [male]
candidate tilt the balance in his favour.144 Did the addition of this saving
clause enable the Court to distinguish Kalanke and permit the rule under
Article 2(4) of the Directive?

137

Ibid.
See S Fredman, Affirmative Action and the European Court of Justice: A Critical
Analysis in J Shaw (ed) Social Law and Policy in an Evolving European Union (Hart,
Oxford, 2000) 17195 at 178.
139
Ibid.
140
See the observations of AG Jacobs in Case C409/95, Marschall v Land NordrheinWestfalen [1997] ECR I6363, at para 11 of his opinion.
141
COM(96) 88.
142
Ibid. The draft amendment provided that: 4. This Directive shall be without prejudice
to measures to promote equal opportunity for men and women, in particular by removing
existing inequalities which affect the opportunities of the under-represented sex in the areas
referred to in Article 1(1). Possible measures shall include the giving of preference, as regards
access to employment or promotion, to a member of the under-represented sex, provided that
such measures do not preclude the assessment of the particular circumstances of an individual case.
143
Case C409/95, Marschall v Land Nordrhein-Westfalen [1997] ECR I6363.
144
Judgment, para 3 (emphasis added).
138

448 Sex Equality, Market Integration and the Court of Justice

AG Jacobs warned the Court not to make such a distinction on narrow
technical grounds which would, in his view, lead to confusion as to the law
and a proliferation of litigation with arbitrary results.145 For the AG, the
existence of the saving clause, which he regarded as unclear in scope,146
merely displaced the rule giving priority to women in a particular case but
did not alter the discriminatory nature of the rule in general.147 Dispensing
with any discussion of the desirability of positive action, which he regarded
as a diversion from the central issue of the compatibility of the rule in question with Article 2(4),148 he noted that there were also exceptions to the
Bremen rule under consideration in Kalanke.149 Applying a strictly liberal
equality rationale, he concluded that the effect of the ruling in Kalanke was
that any rule which goes beyond the promotion of equal opportunities
by seeking to impose instead the desired result of equal representation is
similarly outside the scope of Article 2(4).150
For the Court, however, the saving clause and, perhaps more importantly,
the salience of the objectives that lay behind the Lands scheme, amounted
to compelling reasons to distinguish Kalanke. Significantly, the Court relied
heavily on the Councils 1984 Recommendation on the promotion of positive action for women which recognises the need for parallel action at
national level to counteract the prejudicial effects on women in employment
which arise from social attitudes, behaviour and structures.151 In Kalanke
the Court had highlighted the role played by Article 2(4) as a derogation
from the equal treatment principle subject to strict interpretation, placing
the Recommendation in that context.152 In Marschall, however, the Court
switched emphasis by stressing the positive aspect of Article 2(4), referring
to the arguments of the Land and several intervening governments who had
stressed that where male and female candidates are equally qualified, male
candidates tend to be promoted in preference to females particularly
because of prejudices and stereotypes concerning the role and capacities of
women in working life.153 Moreover, the Court also referred to the fear that
women will interrupt their careers more frequently, that owing to household
and family responsibilities they will be less flexible in their working hours,
or that they will be absent from work more frequently because of pregnancy,
childbirth and breastfeeding.154 For these reasons:155
145
146
147
148
149
150
151
152
153
154
155

Opinion, para 37.

Ibid para 35.
Ibid para 33.
Ibid para 11.
Ibid para 28.
Ibid para 32.
OJ 1984, L331/34 (emphasis added). Discussed at para 28.
Kalanke, paras 2021.
Marschall, para 29.
Ibid.
Para 30.

The Court of Justice and Positive Action 449

. . . the mere fact that a male candidate and a female candidate are equally qualified does not mean that they have the same chances.

This short paragraph directly refutes the equal starting points model of
equal opportunities relied upon by AG Tesauro in Kalanke. Consequently
policies that seek to correct imbalances in the workforce by quotas and
targets and whose aim is one of equality of outcome may be granted legitimacy.156 It follows that a national rule may fall within the scope of Article 2(4)
if it operates to counteract such attitudes and behaviour and thus reduce the
actual instances of equality which may exist in the real world.157 In other
words, societal discrimination outside the workplace provides a justification
for an element of positive action in the employment sphere. Hence, in an
important shift, the Court acknowledged the conceptual underpinning of the
substantive equality model by upholding the values of factual equality. The
objectivity of the merit principle would no longer be accepted at face value.158
Other factors such as the glass ceiling on womens promotion at work and
broader societal factors that underlie preferential treatment programmes159
were now a factor in the equation. However, having espoused the rhetoric of
substantive equality160 the Court proceeded to position its judgment within
the formal equality model by upholding Kalanke and distinguishing a saving
clause that does not exceed these limits if, in each individual case:161
. . . it provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and
will override the priority accorded to female candidates where one or more of these
criteria tilt the balance in favour of the male candidate. In this respect, however, it
should be remembered that those criteria must not be such as to discriminate against
female candidates.

The warning conveyed in the final sentence is important because, ironically,

one of the reasons why the legislature in Bremen had omitted such a formal
proviso was, according to the referring court in Kalanke, because there was
too great a risk that application of such an exception would lead to indirect discrimination against women.162 Land North-Rhine Westphalia had
similar concerns, regarding the saving clause as a sword of Damocles
to be rarely invoked.163 This rather begs the question of whether it is ever
156

See Fredman in Shaw, n 138 above at 175.

Para 31 (emphasis added).
See Fredman in Shaw, n 138 above at 178.
159
See the note on Marschall by G More (1999) Common Market Law Review 443 at 450.
160
See further, L Charpentier, The European Court of Justice and the Rhetoric of
Affirmative Action (1998) 4 European Law Journal 167.
161
Para 33.
162
See the AGs opinion in Marschall, para 36. See further the annotation on Kalanke by
S Prechal (1996) 33 Common Market Law Review 1245 at 1257.
163
Ibid.
157
158

450

Sex Equality, Market Integration and the Court of Justice

possible to formulate an objective gender-neutral guarantee that can tilt

the balance in favour of a male candidate?164
The Courts attempt to distinguish Kalanke is unconvincing. Both the
Bremen and North-Rhine Westphalian laws allowed for consideration of
individual candidates with only minor technical differences. Further, even
if one accepts that the latter provided additional safeguards for individual
male candidates,165 it operated only as an exception to a general asymmetrical rule which leads to equality of results rather than equality of opportunitiesreversing the presumption upon which the ruling in Kalanke
was based. Nevertheless, that technical difference was of vital importance
because, by acknowledging the presence of a male contender,166 it provided
cover for the Court to embark on a retreat from Kalanke without jettisoning the liberal ideal of equality. Formally, at least, the two main elements
of an equal opportunities approachrecognition of the limits of equal treatment and endorsement of the primacy of the individual167remained intact
albeit within a system of limited group preference.168 Hence the judgment
in Marschall provides a rather unconvincing basis for the Court to reconcile certain tie-break quota schemes targeted at disadvantaged groups
within an individualised equal treatment framework, but leaves a question
mark over the prospects for stricter quota systems aimed at achieving
equal representation more rapidly by removing the premise of equal
qualification.169
In part the Courts ambivalence towards positive action in Marschall can
be explained by the timing of the judgment. In the two-year period between
Kalanke and Marschall external pressure for legislative change and Treaty
amendment was keenly felt.170 Whereas AG Jacobs criticised the Commission for seeking to introduce an interpretative amendment which he
regarded as more innovatory than the Commission suggests and lacking
in clarity,171 he acknowledged that a proposed revision of the EC Treaty
would allow for certain forms of affirmative action.172 The Court, however,
was not immune to external events.173 In the period between the opinion
164

For discussion on this point, see L Betten and V Shrubsall, The Concept of Positive Sex
Discrimination in Community LawBefore and After the Treaty of Amsterdam (1998) 14
International Journal of Comparative Labour Law and Industrial Relations 65 at 6870.
165
For Schiek (1996, Industrial Law Journal) n 110 above at 243, this distinction is of critical importance.
166
Charpentier, n 160 above at 18586.
167
See Fredman in Shaw, n 138 above at 177.
168
See More (1999) Common Market Law Review, n 159 above at 451.
169
Fredman in Shaw, n 138 above at 179.
170
More (1999) Common Market Law Review, n 159 above at 451. More also suggests,
at 452, that a change in the composition of the Count may have been a factor.
171
Opinion, para 49.
172
Ibid para 50.
173
See further, G Mancini and S OLeary, The New Frontiers of Sex Equality Law in the
European Union (1999) 24 European Law Review 331 at 346.

The Court of Justice and Positive Action 451

and the judgment the Amsterdam Treaty was negotiated and, with the
introduction of Article 141(4) EC, the centre of gravity of the equal treatment debate shifted from equal opportunity to full equality in practice,
signalling a preference, but not an obligation, for positive action174 intended
to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
This provision would appear to encompass schemes designed to address the
whole panoply of prejudices and stereotypes of women referred to by the
Court in Marschall in the sense that these are compensatoryremedying
past deficitsand distributiverepresenting a desired level of equality of
representation that women would have had in the absence of societal discrimination.175 Nevertheless uncertainty remained not only about the relationship between Article 141(4) EC and Article 2(4) of the Equal Treatment
Directive, but also whether Article 141(4) EC derogates from the principle
of equal treatment or forms part of its expression?176 The Courts studied
ambiguity in Marschall reflected this uncertainty.
Two years later in Badeck,177 a third reference from Germany, the Court
was presented with an opportunity both to reconcile its case law and
address the issue of positive action in the context of the now operative
Article 141(4) EC. Badeck concerned the legality of positive action measures in the Land of Hessen that were altogether stricter and embraced a
more substantive view of equality than those in Bremen and North-Rhine
Westphalia.178 Whereas the latter provided for womens quotas allowing
for a decision on each individual appointment or promotion,179 the Hessen
Equal Rights Law established a flexible result quota in the form of a
womens advancement plan that contained binding targets, for two years
at a time, for the proportion of women appointed and promoted, for
increasing the proportion of women in sectors where women were underrepresented. In these sectors more than half the posts were designated for
women. In effect the systemand related schemes also under consideration180was stricter than those previously considered by the Court because
it placed the numerical result ahead of any requirement for formal qualifications between competing candidates. Moreover, unlike in Marschall, there
174
On this point, see H Fenwick, From Formal to Substantive Equality: the Place of Affirmative Action in European Union Sex Equality Law (1998) 4 European Public Law 507 at
515.
175
See Charpentier, n 160 above at 19293.
176
For further discussion, see Betten & Shrubsall, n 164 above at 7680.
177
Case C158/97, Badeck and others v Hessischer Ministerprsident [2000] ECR I1875.
178
See K Kchhold, BadeckThe Third German Reference on Positive Action (2001) 30
Industrial Law Journal 116 at 116; and Fredman in Shaw, n 138 above at 180.
179
Kchhold, ibid at 117.
180
In addition to the main flexible result quota the reference also sought to address the
status of an academic flexible result quota, a strict training quota, an interview quota and
a quota for collective bodies. See ibid.

452

Sex Equality, Market Integration and the Court of Justice

was no saving clause allowing for the priority given to women to be disregarded on objective grounds. However, a separate provision provided
that posts were only to be filled on the basis of suitability, capability and
professional performance including qualifications.181 Factors to be taken
into account in this assessment included childcare responsibilities and
family work, while part-time work, leave and delays in completing training because of care of children and dependants were not allowed to have a
negative effect nor to adversely affect progress in employment. Significantly,
seniority and age, criteria which usually work in favour of men,182 would
only become decisive if and where they added to the specific qualification
needed in the job or office advertised.
Once again the Court relied on its AG to provide the conceptual background within which to frame a narrowly reasoned judgment. In his
opinion, AG Saggio sought, with admirable clarity, to define the scope of
positive action within the Community legal order.183 In his view the combined effect of Article 2(4) of the Directive and Article 141(4) EC was to
enable States to adopt provisions designed to achieve equal treatment even
if they appear contrary to the principle of non-discrimination and entail
actual disadvantages for men.184 For the AG, the dynamic effect of Article
141(4) EC was of central importance.185 In the light of express references
to forms of positive action in that provision, a strict interpretation of Article
2(4) would now be inconsistent with the development of Community law.186
Article 141(4) EC had shifted the presumption in favour of positive action
and, as a result, we cannot in principle hold national provisions involving
the actual recruitment or promotion of female candidates to be precluded
by Community law.187 Any other interpretation would deprive positive
action of its substance and accord it the status of an auxiliary measure
which would not always be effective in redressing social inequalities.188
Departing from the polarised vision of the AGs in Kalanke and Marschall,
who considered preference for the under-represented sex to be irreconcilable with the principle of equality,189 AG Saggio concluded that such a
dynamic approach would allow the principles of formal and substantive
equality to be regarded as not antithetical but complementary. Conflicts
181

Para 10 of the Hessen Equal Rights Law.

On this point, see D Schiek, Positive Action before the European Court of JusticeNew
Conceptions of Equality in Community Law? From Kalanke and Marschall to Badeck (2000)
16 International Journal of Comparative Labour Law and Industrial Relations 251 at 257.
183
Opinion, para 19.
184
Ibid para 20.
185
See Flynn (1998, Yearbook of European Law) n 5 above at 264.
186
Opinion, para 26.
187
Ibid.
188
Ibid para 28.
189
On this point see Schiek (2000, International Journal of Comparative Labour Law and
Industrial Relations) n 182 above at 252.
182

The Court of Justice and Positive Action 453

would arise, however, in two situations: first, where a measure is arbitrary
in its content, in the sense that it impinges excessively on the rights of individuals not belonging to the group to which it is addressed; and second,
when it is disproportionate to the real needs of the disadvantaged
group because the social realities do not justify the adoption of the law in
question.190
On this basis the rule at issue in Kalanke was arbitrary, in the sense that
the automatic operation of the quota made it extremely difficult for an
employer to select a male candidate.191 In Marschall, on the other hand,
there was no automatic effect because of the saving clause and the rule
itself was proportionate because it lessened the discriminatory effect of the
quota.192 The AG concluded that quotas for women would be lawful in the
Community legal order where they allow:
. . . the employer to select the candidate with the most suitable professional profile.
In no case must such action affect the assessment of the merits and qualifications
of male candidates.

Applying these criteria, the AG advised that, notwithstanding the absence

of a saving clause, the main Hessen provision was lawful because it explicitly requires priority to be given to the best qualified and most suitable
candidate. Most importantly, it was perfectly appropriate for womens
dual burden of work and care193 to be taken into consideration among the
criteria for assessment of merit because:
The system merely provides a mechanism to facilitate the integration of women and
further their careers by ensuring, in particular, that they are not penalised as a result
of the work they have done within the family.

Positive action is compatible with Community law so long as it does not

preclude male candidates from competing for any post and does not
require a fixed quota of female candidates to be employed regardless of
candidates suitability for the specific post to be filled. This indicates that
the AG was seeking to apply a loose standard of proportionality in contrast with the strict test of AG Jacobs in Marschall, which would render
almost all positive action unlawful.194 On this basis all of the quotas under
the Hessen law were lawful with the exception of a quota for collective
bodies because this provided that half of the membership of internal administrative bodies must be women irrespective of their suitability for the
190

Opinion, para 29.

Ibid para 30.
192
Ibid paras 312.
193
See further, T Hervey and J Shaw, Women, Work and Care: Womens Dual Role and
Double Burden in EC Sex Equality Law (1998) 8 Journal of European Social Policy 43.
194
See Schiek (2000, International Journal of Comparative Labour Law and Industrial
Relations) n 182 above at 271.
191

454 Sex Equality, Market Integration and the Court of Justice

position.195 The key criterion, allowing ultimate priority to be given to the
most suitable candidate, was missing.
In its judgment the Court sought to consolidate its case law without elaborating upon its conception of equality or the compatibility of the formal
and substantive equality models. Significantly, while making several references to Article 141(4) EC, the Court shied away from a dynamic interpretation of that provision and instead ruled that it would only be material
to the outcome in cases where it considered that the national legislation was
not permitted under Article 2(4) of the Directive.196 Therefore, Article 2(4)
was to be considered in isolation and, by implication, remained subject to
strict interpretation as in Kalanke. Theoretically a rule that was not compatible with the Directive might still be lawful under Article 141(4) EC, but
the Court offered no further guidance on the basis upon which such a conclusion might be reached and, as it ruled that each element of the Hessen
law was permitted under the Directive,197 it was, perhaps conveniently, not
necessary to consider the ambit of Article 141(4) EC in this context.198
Nevertheless, despite according Article 141(4) EC a subordinate role
vis--vis the Directive, the Court followed its AG when setting out a general
presumption in favour of quotas while seeking to reconcile Kalanke and
Marschall by holding that:199
. . . a measure which is intended to give priority in promotion to women in sectors
of the public service where they are under-represented must be regarded as compatible with Community law if
it does not automatically and unconditionally give priority to women when
women and men are equally qualified, and
the candidatures are the subject of an objective assessment which takes account
of the specific personal situations of all candidates.

On the basis of this formulaic approach200 the Court was prepared to

uphold the main flexible result quota because it met both of these criteria.201 The Court also noted that the legitimacy of the substantive equality
factors to be taken into account in assessing the suitability of candidates
was not challenged in the main proceedings.202
Badeck represents an advance on Marshall and Kalanke because it shifts
the presumption in favour of positive action programmes and allows sub-

195

Opinion, para 42.

Judgment, para 14.
Including the quota for collective bodiessee paras 646. In the view of the Court this
quota was a non-mandatory provision and therefore permitted, to some extent, other criteria
to be taken into account.
198
Para 67.
199
Para 23 (emphasis added).
200
Fredman in Shaw, n 138 above at 181.
201
Para 38.
202
Para 32.
196
197

The Court of Justice and Positive Action 455

stantive equality criteria to form part of the individual assessment of merit.
Hence, schemes that are designed to guarantee equality of results may be
permitted, even without a saving clause, so long as the ultimate assessment
takes account of the merit of individual candidates. Most importantly, in a
significant and yet underplayed endorsement of the central place that substantive equality has now assumed in Community equalities law, the Court
inferred that in the context of national legislation, the merit principle, which
is the cornerstone of the equal opportunity ideal,203 may legitimately reflect
the realities of society and, in particular, womens dual burden of work and
care.
It followed that the priority given to women in the main Hessen provision was formally subordinate to the reconstituted merit principle and,
indeed, had been found by the national court to be compatible with the
Federal Constitution on that basis.204 The importance of this point was
borne out when, in Abrahamsson,205 the first Swedish reference on a positive action scheme, the overriding nature of the merit principle formed the
basis for the Courts judgment.
Under Swedish legislation a strict womens quota was introduced aimed
at increasing the number of female professors in universities. The scheme
provided that a candidate belonging to an under-represented sex could be
appointed in preference to a candidate from the opposite sex even if they
were less qualified. The only proviso was that the difference in their respective qualifications was not so great that the application of the rule would
be contrary to the requirement of objectivity in the making of appointments.
The Court distinguished Kalanke, Marschall and Badeck on the basis that,
in none of those cases was it possible for preference to be given to a less
qualified applicant.206 Whereas the scheme in Badeck was clear and sophisticated, incorporating a wide range of clear and well-defined substantive
equality criteria upon which merit could be assessed, the Swedish legislation under consideration in Abrahamsson was opaque and ambiguous. In
the absence of transparent criteria that were amenable to review, the scope
and effect of the proviso could not be precisely determined and therefore
the presumption in favour of positive action was rebutted because, ultimately, the Swedish quota scheme automatically and unconditionally gave
priority to a candidate based on the mere fact of belonging to the underrepresented sex even where the merits of the candidate so selected are
inferior to those of a candidate of the opposite sex.207
Following the logic of its reasoning in Badeck, the Court, having found
the scheme incompatible with Article 2(4) of the Equal Treatment
203
See generally, C McCrudden, Merit Principles (1998) 18 Oxford Journal of Legal
Studies 543.
204
Opinion, para 36.
205
Case C407/98, Abrahamsson and Anderson v Fogelqvist [2000] ECR I5539.
206
Para 45.
207
Paras 503.

456 Sex Equality, Market Integration and the Court of Justice

Directive, now turned its attention to Article 141(4) EC. The Court had
earlier noted, in reference to the substantive equality criteria in Badeck
that:208
The clear aim of such criteria is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in the
professional career of persons belonging to the under-represented sex.

Hence Article 141(4) EC permits national laws which have substantive

equality as their aim, but the Court held that the criteria under which
those laws operate must be proportionate to that aim.209 It followed
that the selection method under the Swedish scheme was deemed disproportionate because of its arbitrary nature.210 While it is self-evident that
proportionality should be applied to Article 141(4) EC, the Court has been
criticised for not taking full account of the level of under-representation of
women among university professors in Sweden and the corresponding need
for a strict quota.211 Such criticism rather misses the point. The problem
with the Swedish scheme lay with its lack of sophistication. Indeed, on a
broad reading of the judgment, it is submitted that the scheme may have
been upheld on the basis of Article 141(4) EC alone had the objectivity
proviso been backed up by a set of substantive equality criteria that satisfied the requirements of being transparent and amenable to review.212 In
many respects the package of schemes in Badeck provided for a stricter
results-oriented quota regime than the rather crude mechanism tested in
Abrahamsson, and yet, the latter was outlawed not because of its substantive aims, but rather its procedural inadequacies.
After Marschall and Badeck the contours of Community equalities law
have been reshaped. There is now a presumption in favour of positive action
measures so long as they clearly provide for a fair and objective assessment
of the ability of individual candidates and are proportionate to the aim of
substantive equality. The requirement of formal equality may be satisfied
by redefining the concept of individual merit to take account of the specific social context that influences an individuals life chances.213 Once it is
accepted that positive action is capable of furthering rather than diminishing the principle of equality, it follows that the proportionality principle permits action which is shown to be necessary to ensure equality in
practice.
208

Para 48.
Para 55.
210
Paras 556.
211
See A Numhauser-Henning, Swedish Sex Equality Law before the European Court of
Justice (2001) 30 Industrial Law Journal 121 at 125.
212
Para 49.
213
See Fredman in Shaw, n 138 above at 194.
209

The Court of Justice and Positive Action 457

The Courts cautious approach to Article 141(4) EC in Badeck and Abrahamsson was unfortunate. Article 141(4) EC should be taken into account
in the interpretation of Article 2(4) of the Directive as AG Saggio suggests
rather than being accorded a residual status which is inconsistent with its
wider object of full equality in practice . . . in working life. The proportionality test should be applied with this aim in mind. Indeed, the proposed
revision of the Equal Treatment Directive goes even further.214 Article 141(4)
EC would be deemed to supersede Article 2(4), which would be deleted and
replaced with an obligation on those Member States who maintain, adopt
or implement positive actions to submit a biannual report to the Commission who will, in turn, review and publish a comparative assessment of
these measures.215 This amendment will enable the Court to adopt a more
coherent approach to positive action in the fields of sex equality and antidiscrimination law where, under the Article 13 EC anti-discrimination
directives, positive action measures will be allowed to prevent or compensate for group disadvantage.216
Moreover, the Courts jurisprudence on positive action post-Kalanke has
been mirrored by an increasing willingness on its part to recognise the importance of substantive equality in discrimination cases.217 For example, in contrast with earlier cases where substantive equality factors were disavowed,218
the Court in Gerster219 ruled that a system of promotion in the public service
which took insufficient account of hours worked by part-time workers was
unlawful on the basis that such a provision would in practice . . . result in
discrimination against women employees as compared with men and must
in principle be regarded as contrary to [the Equal Treatment Directive].220
Formally neutral rules on length of service or seniority must, therefore, take
account of societal factors and the concept of equal opportunities is equally
dynamic for, as AG La Pergola pointed out in his opinion:221
214

COM(2001) 321.
Ibid. Draft Art 2(4).
216
Art 5 of the Race Equality Dir, 2000/43/EC, OJ 2000, L180/22, and Art 7(1) of the
Framework Employment Dir, 2000/78/EC, OJ 2000, L303/16.
217
See Mancini and OLeary, n 173 above at 33436.
218
Examples include: Case 184/83, Hofmann v Barmer Ersatzkasse [1984] ECR 3047 (division of labour within the family); Case C399/92, Stadt Lengerich v Helmig [1994] ECR
I5727 (domestic or care work outside the workplace); Case C297/93, Grau Hupka v Stadtgemeinde Bremen [1994] ECR I5535 (child rearing). See further, T Hervey, The Future for
Sex Equality Law in the European Union in Hervey and OKeeffe, n 7 above, 399413 at
4023; and G More, Equality of Treatment in European Community Law: The Limits of
Market Equality in A Bottomley (ed) Feminist Perspectives on the Foundational Subjects of
Law (Cavendish, London, 1996) 26178 at 2715.
219
Case C1/95, Gerster v Freistaat Bayern [1997] ECR I5253. See also Case C281/97,
Krger v Kreiskrankenhaus Ebersberg [1999] ECR I5127.
220
Para 34. On this point, see Schiek (1998, European Law Journal) n 113 above at 161,
who argues that Marschall and Gerster, read together, willif applied consistentlyhelp to
revolutionise promotion procedures in public services.
221
Opinion, para 40.
215

458 Sex Equality, Market Integration and the Court of Justice

Accordingly, the vital stage at which equality counts is the starting point from which
a career develops, compensating for the disadvantage which women alone continue
to face, by removing the practical obstacles to equal opportunity in the field of
employment.

While it is too early to conclude that there has been a radical remodelling
of Community equality law along substantive equality lines,222 these developments are indicative of a transition from an individual to a collective vision of equality based on identifying and remedying group
disadvantage.223
Finally, it should be noted that positive action is not a panacea. As AG
Tesauro correctly observed in Kalanke, numerical equality will remain illusory and devoid of all substance unless it goes together with measures that
are genuinely destined to achieve equality.224 Positive action measures often
have only a limited impact.225 Full equality in practice will only be possible
once policies have been developed to address structural discrimination in
both work and society and to create genuine equal opportunities. The Community Framework Strategy on Gender Equality (20012005)226 signifies a
step in this direction by referring to the need to co-ordinate effective gender
mainstreaming227 in order to, inter alia, reduce occupational segregation,
challenge gender roles and stereotypes, make it easier to reconcile work and
family life, in particular by increasing provision for childcare and care for
the elderly.

IV THE AIMS OF ARTICLE 141 ECFROM THE ECONOMIC TO

THE SOCIAL?

Notwithstanding the recasting of the social provisions in Articles 136145

[ex 117122] EC, the principle of equal pay between men and women in
Article 141 [ex 119] EC remains the most explicit example of a social
right enshrined in the Treaties.228 As the Court recognised in Defrenne II,229
economic rather than social factors were the motivating force behind
the inclusion of an obligation on the original Member States to apply the
222
See C Barnard, The Principle of Equality in the Community Context: P, Grant, Kalanke
and Marschall: Four Uneasy Bedfellows? (1998) 57 Cambridge Law Journal 352 at 3712.
223
See Barnard and Hervey (1998, Journal of Social Welfare and Family Law) n 110 above
at 33941. See also the opinion of AG Tesauro in Kalanke, para 8.
224
Para 28. See the critique of Betten & Shrubsall, n 164 above at 756.
225
Fredman in Shaw, n 138 above at 195.
226
Council Decision 2001/51/EC, OJ 2001, L17/22.
227
Annex, points 1.31.5.
228
See M Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and
Social Rights in the EU in P Alston (ed) The EU and Human Rights (OUP, Oxford, 1999)
44972 at 455.
229
Case 43/75, Defrenne v Sabena II [1976] ECR 455. Discussed in ch 2.

The Aims of Article 141 EC

459

principle of equal pay from 1 January 1962.230 Hence the introduction

and maintenance of the obligation from that point was intended, first and
foremost, to avoid unequal conditions of competition between Member
States who had established equal pay and those who had not.231 Having
identified the primacy of economic objectives, the Court declared that the
Community was not merely an economic union and the principle of equal
pay derived some social content from its location in the social provisions
of the Treaty,232 providing a foundation for its later elevation as a fundamental right that forms part of the principle of non-discrimination on
grounds of sex.233
In Defrenne II the Court was seeking to reconcile the apparently irreconcilable by reflecting the social and political environment at a time when
the Equal Pay Directive had recently been adopted.234 Nevertheless, while
expressing this double aim as at once economic and social,235 the Court
revealed its economic bias when, in deference to economic fears concerning the possible costs for employers,236 it applied a temporal limitation on
its judgment which prevented retrospective claims based on its finding that
the principle of equal pay had direct effect.237 This was to set an unfortunate precedent for later concessions to similar arguments in Barber and Ten
Oever.238 Further evidence of the Courts willingness to give precedence to
market factors over social rights can be found in its development of a test
for objective justification which enables arguments concerning the economic
needs of undertakings to trump the equality principle.239

230
Marking the end of the first stage of the EEC transitional period. See C Barnard, The
Economic Objectives of Article 119 in Hervey and OKeeffe, n 7 above, 32134 at 322.
231
Defrenne II, para 9.
232
Para 10.
233
Case 149/77, Defrenne v Sabena III [1978] ECR 1365, paras 267; Cases 75/82 and
117/82, Razzouk and Beydoun v Commission [1984] ECR 1509, para 16; and Case C13/94,
P v S and Cornwall CC [1996] ECR I2143, para 19.
234
Barnard in Hervey and OKeeffe, n 230 above at 331.
235
Para 11.
236
Paras 6970. The Court may have been influenced by the fact that these fears were
expressed by two new Member States, the UK and Ireland, who had not been granted a transitional period within which to implement equal pay.
237
Paras 6975.
238
Case C262/88, Barber v GRE [1990] ECR I1889, paras 445; and Case C109/91,
Ten Oever [1993] ECR I4879, para 20. In Barber and Ten Oever the Court restricted ratione
temporis the effect of its finding that pensions paid by private occupational schemes were pay
under Art 119 [now 141] EC. In Barber the Court noted arguments by the UK concerning the
serious financial consequences that would arise from the fact that many occupational pension
schemes in the UK derogate from the principle of equal pay by providing for different pensionable ages (para 44). The Member States had sought to codify this interpretation by attaching a separate Protocol (No 2) to the EC Treaty at Maastricht. See ch 7 for comment.
239
See Case 170/84, Bilka Kaufhaus v Weber [1986] ECR 1607; and Case 127/92, Enderby
v Frenchay HA [1993] ECR I5535. Discussed by T Hervey, Justifications for Sex Discrimination in Employment (Butterworths, London, 1993) ch 8; and C Barnard, EC Employment
Law, 2nd edn (OUP, Oxford, 2000) pp 21320.

460

Sex Equality, Market Integration and the Court of Justice

On 10 February 2000, nearly 25 years on from Defrenne II,240 the Court

delivered a series of rulings in Schrder241 and related references from
the German courts242 arising from the exclusion of part-time workers
from supplementary occupational pension schemes. The central issues at
stake struck at the heart of the economic/social aims of not just the principle of equal pay but the whole European integration project. Did
provisions in national law that enshrined the principle of sex equality and
prohibited discrimination against part-time workers entail a retrospective
application of the principle of equal pay, notwithstanding the fact that such
an interpretation would not only override collective agreements but also
risk distortion of competition and have a detrimental economic impact on
employers?243
In a dynamic interpretation, the Court in Schrder answered in the affirmative. The time was ripe to re-evaluate the twofold aim of Article 119
[now 141] EC now that the Amsterdam Treaty had entered into force
although it was not applicable in the instant case.244 In particular, the Court
sought to give substance to its social rhetoric in Defrenne III245 and P v S246
when concluding that:247
In view of that case-law, it must be concluded that the economic aim pursued by
Article 119 of the Treaty, namely the elimination of distortions of competition
between undertakings established in different Member States, is secondary to the
social aim pursued by the same provision, which constitutes the expression of a fundamental human right.

It followed that, notwithstanding arguments that the principle of legal certainty and the doctrine of supremacy required Member States to adhere to
the temporal limitation in Defrenne II, national rules which operated to
give retrospective effect to the principle of equal pay and ensure a result
which conforms with Community law could be relied upon by individuals.248 Germany, as one of the original Member States, was entitled to bring
in laws which clarified or defined the scope of a rule as it must be or ought
to have been understood and applied from the time of its coming into force
240

8 April 1976.
Case C50/96, Deutsche Telekom AG v Schrder [2000] ECR I743. Noted by L
Besselink (2001) 38 Common Market Law Review 437.
242
Cases C234235/96, Deutsche Telekom AG v Vick and Conze [2000] ECR I799; and
Cases 270271/97, Deutsche Post AG v Sievers and Schrage [2000] ECR I929.
243
This is a reformulation of the first part of the sixth question asked by the national court
in Schrder.
244
Mrs Schrder was seeking arrears of pension for the period 20 May 1975 to 31 March
1994.
245
Case 149/77, Defrenne v Sabena III [1978] ECR 1365, paras 267. See Schrder, para
56.
246
Case C13/94, P v S and Cornwall CC [1996] ECR I2143, para 19. Schrder, ibid.
247
Para 57.
248
Para 48.
241

The Aims of Article 141 EC

461

which, in the case of equal pay, was 1 January 1962.249 Hence the doctrine
of legal certainty, which provided cover for the Court to capitulate to
market-based arguments in Defrenne II and Barber, was not allowed to
stand in the way of national legislation granting part-time workers the
social right of retroactive membership of an occupational pension scheme
once it had been established that the exclusion of part-time workers from
the scheme amounted to discrimination based on sex.
At one level Schrder was a relatively straightforward judgment for the
Court. The status quo on occupational pensions was unaffected. Schrder
confirms that although part-time workers may join pension schemes, they
cannot claim the right to a pension unless they have made the relevant
contributionsa de facto temporal limitation.250 The Courts judgment in
Schrder also chimes with the politics of subsidiarity251 and sovereignty
because, as Shaw observes,252 the hidden subtext of the Courts judgment
is the long-standing tension between the Court of Justice and the German
courts on the issue of fundamental rights and the desire, on the part of the
Court, to avoid a constitutional clash.
Nevertheless, even if it is accepted that the Court was only partially
motivated by concerns about the status of the equality principle, Schrder
is significant for two reasons. First, the Courts judgment reveals an acute
awareness of the post-Amsterdam process of Europeanisation of social
rights arising from the autonomy of the social provisions in Article 136145
EC, the affirmation of fundamental social rights in Article 136 EC, and
the mainstreaming of sex equality in Articles 2 and 3(2) EC. Moreover, the
ongoing negotiation of the EU Charter of Fundamental Rights provided an
appropriate backdrop for the Court to uphold core social values. Hence, the
Courts preparedness to re-evaluate the economic and social aims of Article
119 [now 141] EC forms part of a wider recognition of the equivalence of the
social and economic objectives of the Treaty as a whole,253 as demonstrated
by its ruling in Albany International,254 where the Court upheld the Dutch
system of compulsory pension funds because of the social task that they
perform by protecting all workers, notwithstanding the fact that the operation of such funds might violate Community competition law.255 The Court
249

Paras 437.
See J Shaw, Gender and the Court of Justice in G de Brca and J Weiler (eds) The
European Court of Justice (OUP, Oxford, 2001) 87142 at 123.
251
On the increasing influence of subsidiarity on the Court, see G de Brca, The Principle
of Subsidiarity and the Court of Justice as an Institutional Actor (1998) 36 Journal of
Common Market Studies 217.
252
Shaw in de Brca and Weiler, n 250 above at 123.
253
See E Szyszczak, The New Paradigm for Social Policy: A Virtuous Circle? (2001) 28
Common Market Law Review 1125 at 1154.
254
Case C67/96, Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I5751. Discussed in ch 1.
255
Paras 88123.
250

462 Sex Equality, Market Integration and the Court of Justice

justified its approach by referring to the whole scheme of the Treaty, paying
particular attention to social provisions added to the original Treaty by later
amendments.256 However, as with Schrder, subsidiarity played a major part
in a case where the Court was anxious to assuage national sensitivities concerning the organisation of national social security systems.
Second, the Courts paradigm shift from the economic to the social in
Schrder provides a basis for a more fundamental reappraisal of the economic bias in the Courts sex equality jurisprudence. Early indications
suggest that this process has begun but the Court remains cautious, particularly where Member States seek to justify indirect discrimination on the
basis of economic arguments.
In Jrgensen257 the Court was asked to determine whether considerations
relating to budgetary stringency, savings or medical practice planning might
be regarded as objective factors such as to justify a measure that adversely
affects a larger number of women than men? The Court decided that
although budgetary considerations may underlie a Member States choice
of social policy, and influence the nature and scope of the social protection
measures that it wishes to adopt, they do not themselves constitute an aim
pursued by that policy and cannot therefore justify sex discrimination.258
However, the Court added the caveat that:259
As Community law stands at present, social policy is a matter for the Member States,
which enjoy a reasonable margin of discretion as regards the nature of social protection measures and the detailed arrangements for their implementation . . . If they
meet a legitimate aim of social policy, are suitable and requisite for attaining that
end and are therefore justified by reasons unrelated to discrimination on grounds
of sex, such measures cannot be regarded as being contrary to the principle of equal
treatment . . .

Therefore, while budgetary considerations cannot, in themselves, justify

discrimination on the grounds of sex, measures, as in Jrgensen, that are
intended to ensure sound management of public expenditure on specialised
medical care, and to guarantee peoples access to such care, may be justified if they meet a legitimate objective of social policy, are appropriate to
attain that objective and are necessary to that end.260 Hence, the Court used
the language of social aims to justify policy choices that were ultimately
driven by economic considerations.
Jrgensen has been applied in Kachelmann,261 a case concerning German
legislation providing for social criteria to be taken into account in the
256

Paras 548.
Case C226/98, Jrgensen v Foreningen af Speciallger [2000] ECR I2447.
258
Para 39. See also, Case C343/92, De Weerd and others [1994] ECR I571, para 35.
259
Para 41. See also, Case C229/89, Commission v Belgium [1991] ECR I2205, paras
19, 22 and 26; and Case C226/91, Molenbroek [1992] ECR I5943, paras 13, 15 and 19.
260
Para 42.
261
Case C322/98, Kachelmann v Bankhaus Hermann Lampe KG [2000] ECR I7505.
257

The Aims of Article 141 EC

463

selection of workers for dismissal. Ms Kachelmann was a qualified banker

working part-time who was selected for redundancy. She sought to compare
her position with that of a full-time employee performing equivalent duties
and argued that she had the greatest need on the basis of social criteria.
However, the Federal Labour Court had established that, taking account of
the employers right to organise the business of his company, part-time and
full-time workers were not comparable for this purpose.
In his opinion, AG Saggio advised that such an interpretation would lead
to indirect discrimination because, if part-time workers were predominantly
female, they would have less chance of benefiting from social criteria that
might favour women.262 Moreover, referring explicitly to the reformulation
of the aims of Article 141 [ex 119] EC in Schrder,263 he observed that it
is specifically this principle that constitutes the ground for asserting that it
is unlawful to take into account only part-time workers for the purposes
of the selection according to social criteria.264 In this context, the AG
referred to the conflict of interest that will inevitably exist between the
needs of the company and the needs of part-time workers and therefore of
women not to suffer discrimination.265 In his view it was not possible to
make a case for objective justification unrelated to sex on the basis of mere
generalisations concerning certain categories of worker.266
On the main substantive issue the Court agreed with its AG that the lack
of comparability of the social criteria might give rise to a difference of treatment to the detriment of part-time workers.267 However, without reference
to Schrder or its case law on equality as a fundamental right, the Court
referred to its statement in Jrgensen regarding the margin of discretion left
to Member States in the area of social policy and noted that the purpose
of the legislation in question was to protect workers against dismissal whilst
at the same time taking account of the operational needs of the undertaking.268 In the light of these factors, the Court ruled that the difference in
treatment was justified by objective reasons unrelated to sex because if job
comparability between full-time and part-time workers were to be introduced in the selection process on the basis of social criteria under German
law that would have the effect of placing part-time workers at an advantage, while putting full-time workers at a disadvantage. In the event of their
jobs being abolished, part-time workers would have to be offered a fulltime job, even if their employment contract did not entitle them to one.269
262

Opinion, para 25.

Para 33, note 12. The AG referred to para 57 of the related case of Sievers and Schrage,
n 242 above which is identical to para 57 of Schrder.
264
Ibid.
265
Para 33.
266
Ibid.
267
Judgment, para 28.
268
Paras 301
269
Para 33.
263

464

Sex Equality, Market Integration and the Court of Justice

According to the Court, the question of whether part-time workers should

enjoy such an advantage was a matter for the national legislature, which
alone must find a fair balance in employment law between the various
interests concerned.270
Whereas Jrgensen represents a compromise between the economic and
social objectives of Community sex equalities law, Kachelmann is a classic
case of judicial deference in the face of national legislation that permits the
economic interests of the employer to counterbalance the social rights of
employees and operates in a manner which, by discriminating against parttime employees, doubly disadvantages women. Moreover, an argument that
was essentially based on subsidiarity was used as a basis for denying a
woman her fundamental right to equality. In addition to selectively disapplying the equality principle, the Court took no account of the substantive equality model in its evaluation of the German legislation. While the
interpretation proposed by Ms Kachelmann may have benefited part-time
workers at the expense of full-time workers, the Court accepted that this
provided the necessary objective justification at face value without considering the extent to which societal factors had led to the numerical discrepancy between the numbers of women and men working part-time in
Germany. Furthermore, this interpretation necessarily requires consideration of the compatibility of the German legislation with the positive action
provisions in Article 2(4) of the Equal Treatment Directive and Article
141(4) EC on the basis that the advantage conferred on part-time workers
would help to reduce the actual instances of equality which may exist in
the real world.271
Is the Courts realignment of the aims of Article 119 [now 141] EC
in Schrder a chimera? Certainly the logic of the Courts reasoning, based
on sex equality as a fundamental right, suggests that the social imperative applies no less forcefully to the Equal Treatment Directive, notwithstanding its origins as a market approximation measure. Furthermore,
the reconstituted Article 141 EC not only reformulates the principle of
equal pay, but also provides a base for equal treatment measures rooted
in the autonomous social provisions in the revised Social Chapter. The
mainstreaming of sex equality and the introduction of general nondiscrimination directives founded on social values, also points to a more
coherent approach that emphasises positive social rights over negative
market integration.
Over the last decade the Court has gyrated from a narrow, formalistic
and market-driven approach in Kalanke, Grant and Kachelmann to a broad
substantive affirmation of the autonomy of sex equality as a fundamental
social right in P v S, Marschall, Badeck and Schrder. Shaw points to the
270
271

Para 34.
Case C409/95, Marschall v Land Nordrhein-Westfalen [1997] ECR I6363, para 31.

The Aims of Article 141 EC

465

fact that the Court tends to cloak itself in the politics of gender when
seeking to reinforce its own legitimacy but, more often than not, the
bare realities of legal interpretation have reasserted themselves, leaving
the highly formal legacy of an equal treatment principle based on notions
of comparison rather than structural disadvantage and societally based
inequity.272 The post-Amsterdam constitutional settlement will, no doubt,
present the Court with further opportunities to choose between respecting
and protecting social values, even where there is a conflict with market aims,
or adhering to a system in which market integration and free competition
is paramount.273
272

Shaw in de Brca and Weiler, n 250 above at 142.

See T Hervey, Social Solidarity: A Buttress Against Internal Market Law? in Shaw,
n 138 above, at 47.
273

11
The European Employment
StrategyReinventing Social Policy
Governance?
I INTRODUCTION

HE AMSTERDAM IGC is perhaps most readily recalled by images

of tortuous late-night negotiations and bicycling political leaders,
but the most immediate concerns of the participants can be found in
the somewhat arcane Presidency Conclusions in which the Member States
once again expressed themselves determined to tackle the scourge of unemployment.1 The sense of urgency was palpable. Between 1991 and 1996,
the EU economy registered its worst post-war performance in growth and
employment over a five-year period.2 Whereas the EU employment rate fell
from 62 per cent to 60.5 per cent, the comparative rates for the US and
Japan touched a record 75 per cent.3 Most alarmingly unemployment
among the under 25s had risen above 20 per cent, twice the adult level.4
Moreover, there was considerable diversity between Member States, ranging
from 3.3 per cent unemployment in Luxembourg to 22.1 per cent in Spain,5
threatening the cohesion of the Union. The EUs leaders were faced with
the twin challenge of responding to the scale of the unemployment problem
while addressing the limitations of existing governmental methods.6 Moreover, although there was now a consensus that the European social model
1
Amsterdam European Council Presidency Conclusions, 16/17 June 1997, Employment,
Competitiveness and Growth. All European Council Presidency Conclusions referred to in
this chapter are available at: <http://ue.eu.int/en/Info/eurocouncil/index.htm>.
2
Employment in Europe 1997, COM(97) 479, p 9.
3
Ibid p 10.
4
Ibid p 11.
5
Eurostat, Employment Monthly, July 1997. See V Symes, Unemployment and
Employment Policies in the EU (Kogan Page, London, 1998) p 5.
6
See D Trubek and J Mosher, New Governance, EU Employment Policy, and the
European Social Model in C Joerges, Y Mny and J Weiler (eds) Jean Monnet Working Paper
No 6/01: Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White
Paper on Governance (New York University School of Law, New York, 2001) Part 9, 125
at 4. Available at: <http://www.jeanmonnetprogram.org/papers/01/010601.html>.

468 The European Employment Strategy

would have to modernise in order to survive7 there was much debate about
the form of modernisation required. With the launch of the Euro less than
two years hence and, in the wake of the Renault/Vilvoorde affair,8 there
was a need to reconcile macroeconomic, monetary and employment policies9 and sell the new Employment Title as a unifying and popular project
to increasingly cynical and pessimistic EU citizens.10 To add momentum and
breathe life into the Employment Title in advance of formal ratification of
the Amsterdam Treaty, an extraordinary European Council was convened
in Luxembourg on 20/21 November 1997.
The nascent Luxembourg process was intended to mark a new departure in EU thinking and action11 after several years of soft law discourse12
stemming from the Commissions reflective Green and White Papers of
the early 1990s.13 In particular, the Commissions White Paper on Growth,
Competitiveness, Employment14 diagnosed unemployment as Europes
Achilles heel and prescribed solutions based on radical structural reforms of
the labour market. From December 1994, the iterative rhythm of the European Employment Strategy (EES) was established based on the priorities
agreed at the Essen European Council.15 The EES soon developed as a multiannual and multi-level process for transnational co-ordination of national
employment policies around mutually agreed priorities. The experimental
working methods of the EES, based entirely on persuasive soft law and legitimated by a conception of subsidiarity where different spheres of action are
interrelated,16 reflected a desire to strike a balance between preserving diversity and a degree of flexibility for national and local actors in the area of
employment policy while, simultaneously, emphasising the interdependence
of the Unions economic and social objectives and the interconnectedness of
nation states who wish to act together for reasons of scale, influence and
increased effectiveness in an age of rapid globalisation.17
7
See E Szyszczak, The New Paradigm for Social Policy: A Virtuous Circle? (2001) 38
Common Market Low Review 1125 at 1126.
8
See ch 7 for discussion.
9
See E Szyszczak, The Evolving European Employment Strategy in J Shaw (ed) Social
Law and Policy in an Evolving European Union (Hart, Oxford, 2000) 197220 at 199.
10
See J Goetschy, The European employment strategy from Amsterdam to Stockholm: Has
it reached its cruising speed? (2001) 32 Industrial Relations Journal 401 at 401.
11
Luxembourg European Council, Presidency Conclusions, para 1.
12
See S Sciarra, The Employment Title in the Amsterdam Treaty: A Multi-language Legal
Discourse in D OKeeffe and P Twomey (eds) Legal Issues of the Amsterdam Treaty (Hart,
Oxford, 1999) 15770.
13
For discussion, see ch 7.
14
Growth, Competitiveness, Employment: The Challenges and Ways Forward into the 21st
Century, Bulletin of the European Communities Supplements 6/93.
15
Presidency Conclusions, Essen European Council, 9/10 Dec 1994. See pp 3067.
16
See C de la Porte, P Pochet and G Room, Social benchmarking, policy making and new
governance in the EU (2001) 11 Journal of European Social Policy 291 at 294.
17
See G de Brca, Reappraising Subsidiaritys Significance After Amsterdam, Harvard Jean
Monnet Working Paper 7/99, p 2. Available at: <http://www.jeanmonnetprogram.org/papers>.

The European Employment Strategy Comes of Age 469

This chapter is divided into two main parts. First, there will be an examination of the methodology and objectives of the evolving Luxembourg
process which has provided the blueprint for the implementation of a
new mode of EU governance18 now known as the open method of coordination (OMC).19 Secondly, we will evaluate the EUs Social Policy
Agenda20 which, in the framework of the strategic goal of more and better
jobs, has placed a fresh emphasis on the importance of policies that
promote quality in work, social policy and industrial relations, to be delivered through a mix of harmonisation, co-ordination, co-operation and partnership. To what extent is there now a fusion of the EUs economic, social
and employment policy objectives?

II THE EUROPEAN EMPLOYMENT STRATEGY COMES OF AGE

(1) The Luxembourg Process

Although the basic shape of the EES was soon evident, the Essen process
had a twilight existence prior to the Luxembourg Jobs Summit. The priorities agreed at Essen were geared to reconciling the emergent EES with
the criteria for EMU and the annual economic guidelines issued under the
procedure in Article 99(2) [ex 103(2)] EC. Traditional methods for promoting employment, such as budgetary expansion and use of the exchange
rate, were no longer an option.21 The introduction of soft co-ordination22
of national strategies for combating unemployment was a pragmatic
response by governments who no longer had freedom of manoeuvre in their
own right but wished to retain their status as the dominant participants in
the European integration process.23 Europeanisation of policy formulation
and decision-making as a response to supranational political and economic considerations24 was regarded as a desirable alternative to traditional
hard law methods of Community regulation through harmonisation. The
18
See D Hodson and I Maher, The Open Method as a New Mode of Governance: The
Case of Soft Economic Policy Co-ordination (2001) 39 Journal of Common Market Studies
719.
19
At the Lisbon European Council, 23/24 March 2000.
20
COM(2000) 379, approved at the Nice European Council, 7/9 Dec 2000, Presidency
Conclusions, Annex I.
21
See M Gold, P Cressey and C Gill, Employment, employment, employment: is Europe
working? (2000) 31 Industrial Relations Journal 275 at 276.
22
See Hodson and Maher, n 18 above who, at 735, distinguish between non-binding
guidance and hard co-ordination in the form of the sanctions available under the economic
provisions in Art 104(11) [ex 104c(11)] EC.
23
See C Carter and A Scott, Legitimacy and Governance Beyond the European Nation
State: Conceptualising Governance in the European Union in Z Bankowski and A Scott, The
European Union and its Order: The Legal Theory of European Integration (Blackwell,
Oxford, 2000) 13147 at 131.
24
Ibid at 139.

470

The European Employment Strategy

process was inherently dynamic and innovative, but the informal Essen priorities for stimulating employment were subsumed by the political priorities and tight budgetary demands of the obligatory EMU convergence
criteria25 driven by the parallel process of macroeconomic co-ordination.26
Essen laid the methodological foundations for the EES but it did not provide
a legal framework to implement the employment priorities.27
The introduction of Title VIII, Articles 125130 EC, was spurred by a
desire to correct this imbalance. Just as Article 2 EC seeks to reconcile the
overarching objectives of economic and social progress and a high level of
employment, the Employment Title now complements Title VII, Chapter
1 on Economic Policy, Articles 98104 [ex 102a104c] EC. Mirroring the
economic provisions, employment is now a matter of common concern
among the Member States to be co-ordinated within the Council.28 Thus if
a Member State gives employment a low priority or embarks on systematic
social dumping it is no longer only a national matter.29 Both the macroeconomic and employment processes feature co-operation between Member
States and complementary Community action including multilateral surveillance, annual guidelines, benchmarking, national reporting and, ultimately, the political sanction of recommendations to individual Member
States.30 The principal themes are those of reciprocal learning, shared
responsibility, structured but unsanctioned guidance,31 and a decentralising
conception of subsidiarity in which the EU enables and the Member States
deliver.32 Indeed, within the Member States, delivery may be delegated to
local actors and the social partners.
In order to encourage the synchronisation of the EUs macroeconomic
and employment policies33 simultaneous resolutions were issued at
25
See Protocol No 6 on the convergence criteria referred to in Art 109j(1) [now 121(1)]
EC. The criteria are: price stabilityinflation must not exceed 1.5% above the average of the
three best performing Member States; budget deficitsnot exceeding 3% of GDP and a public
debt to GDP ratio of less than 60% of GDP; exchange ratestaying within the normal fluctuation margins of the ERM (currently 2.5%) for at least two years; and interest ratesmust
not exceed 2% above the three best performing Member States over the previous year.
26
See further, J Kenner, Employment and Macroeconomics in the EC Treaty: A Legal and
Political Symbiosis? (2000) 7 Maastricht Journal 375; and D Ashiagbor, EMU and the Shift
in the European Labour Law Agenda: From Social Policy to Employment Policy (2001) 7
European Law Journal 311.
27
See Szyszczak (2001, Common Market Law Review) n 7 above at 1136.
28
Art 126(2) EC, closely following Art 99(1) [ex 103(1)] EC.
29
See A Larsson, Employment is a Matter of Common Concern, Employment and Industrial Relations International (EIRI, Dublin, Aug 1997) 1821 at 18.
30
Compare Arts 1279 EC with Articles 99(2)(5) [ex 103(2)(5)] EC. On this point, see
M Biagi, The Implementation of the Amsterdam Treaty with Regard to Employment:
Co-ordination or Convergence? (1998) 14 International Journal of Comparative Labour Law
and Industrial Relations 325 at 327.
31
See Trubek and Mosher, n 6 above at 3.
32
See J Kenner, The EC Employment Title and the Third Way: Making Soft Law Work?
(1999) International Journal of Comparative Labour Law and Industrial Relations 33 at 48.
33
See further, Kenner (2000, Maastricht Journal) n 26 above at 386.

The European Employment Strategy Comes of Age 471

Amsterdam on the Stability and Growth Pact34 and Growth and Employment.35 Whereas the former was concerned with enforcing tight budgetary
discipline and, as a last resort, imposing sanctions on Member States with
excessive budget deficits,36 the latter sought to offer a new impulse for
keeping employment firmly at the top of the political agenda.37 References
in the Pact to the sanctions available under the Economic Chapter highlight
the fact that similar punishment cannot be meted out against recalcitrant
states under the Employment Title. Moreover, of equal significance is the
fact that whilst Article 128(2) EC places a duty on the EU institutions to
take account of the economic guidelines when drawing up the employment
guidelines, there is no corresponding obligation in the Economic Chapter.38
This lacuna was addressed by the Resolution on Growth and Employment
whereby:39
The Council is . . . called upon to take the multi-annual employment programmes
. . . into account when formulating the broad [economic] guidelines, in order to
strengthen their employment focus. The Council may make the necessary recommendations to the Member States, in accordance with [Article 99(4) [ex 103(4)]
EC].

Added stimulus was provided in the Amsterdam Presidency Conclusions,

which referred, for the first time, to full employment as the ultimate goal
but did not specify a precise target.40 Whilst this might suggest an equivalence of political status for the twin objectives of economic stability and
employment growth, the legal effectiveness of the employment guidelines is
undermined by the lack of a specific hard law obligation on the Council
to act in accordance with the employment priorities and the absence of a
matching Treaty commitment. Article 4 EC ensures that the economic activities of both the Member States and the Community must be pursuant to
the primary objective of maintaining price stability and an open market
economy with free competition.41 This entails compliance with the guiding
principles of stable prices, sound public finances and monetary conditions
and a sustainable balance of payments.42 The Stability and Growth Pact is
34

OJ 1997, C236/1.
OJ 1997, C236/3.
Under the procedure laid down in Art 104(11) [ex 104c(11)] EC. The Pact was swiftly
reinforced on 7 July 1997 by Reg 1466/97/EC on the strengthening of the surveillance of budgetary positions and the surveillance and co-ordination of economic policies, OJ 1997, L209/1;
and Council Reg 1467/97/EC on speeding up and clarifying the implementation of the excessive deficit procedure, OJ 1997, L209/6. Discussed by S Ball, The European Employment
Strategy: The Will but not the Way? (2001) 30 Industrial Law Journal 353 at 361.
37
Resolution on Growth and Employment, point 1.
38
See Art 99(2) [ex 103(2)] EC.
39
Point 5. Emphasis added.
40
Presidency Conclusions, p 3.
41
Art 4(2) EC.
42
Art 4(3) EC.
35
36

472 The European Employment Strategy

the principal mechanism for guaranteeing such compliance. Hence, while
the employment guidelines are to be taken into account in the formulation
of the economic guidelines as a matter of policy, the economic imperative
is more explicit in the EC Treaty and is ultimately paramount.
In the Presidency Conclusions at Luxembourg the European Council
sought to closely align the two sets of guidelines on the basis that:43
The idea is, while respecting the differences between the two areas and between the
situations in the individual Member States, to create for employment, as for economic policy, the same resolve to converge towards jointly set, verifiable, regularly
updated targets.

Unfortunately, this rhetorical commitment was not reflected in the detail of

the Council Resolution approving the 1998 Employment Guidelines.44 The
Commission, seeking to add substance to the concept of full employment,
attempted to introduce quantitative employment targets to match the EMU
convergence criteria. The draft guidelines contained a long-term target
of 70 per cent labour market participation broadly in line with the US and
Japan.45 In the Commissions view, a five-year target participation rate of
65 per cent was achievable, up from the 1997 level of 60.5 per cent. This
would involve the creation of at least 12 million jobs. The Commission also
sought to establish targets for reducing the gap between male and female
employment. The European Council, viewing quantitative targets as a
hostage to fortune, proposed merely to arrive at a significant increase in
the employment rate in Europe on a lasting basis.46 Nevertheless, while the
European Council preferred to limit the number of quantifiable targets, the
Commissions proposed structure was endorsed and a cyclical process put
in place that has been retained, largely untouched, throughout the first five
years of the Luxembourg process.
The architecture of the EES now consists of six horizontal objectives, four
vertical pillars and approximately 20 individual guidelines. The horizontal
objectives were first included in the 2001 Employment Guidelines and they
will be placed in context once we have discussed the priorities introduced
at the Lisbon European Council in March 2000. Before assessing the
methodology and effectiveness of the process in more detail, let us first
consider the policy impulses behind the guidelines. The four pillars are:
improving employability; developing entrepreneurship; encouraging
adaptability; and strengthening equal opportunities. Detailed examination
of the 1998 Employment Guidelines reveals several contradictory influences
reflecting many underlying and unresolved tensions inherited from the
Essen priorities.47
43
44
45
46
47

Para 3. Emphasis added.

Council Resolution of 15 Dec 1997, OJ 1998, C30/1.
COM(97) 497.
Presidency Conclusions, para 52.
See Szyszczak in Shaw, n 9 above at 202.

The European Employment Strategy Comes of Age 473

First, the language used is laden with the revisionist terminology of the
Third Way policy agenda associated with Bill Clintons New Democrats
in the US and the New Labour administration of Tony Blair elected in the
UK in May 1997. Seeking to transcend Old Left statism and New Right
neo-liberalism,48 the Third Way has served as a leitmotif for a series of
policy responses to fundamental changes and dilemmas posed by globalisation, individualism and the remoteness of government.49 Hence, the
emphasis of governmental activity has been switched from welfare to
workor from passive to active labour market measuresand promoting
public/private partnerships rather than traditional nationalisation. Under
this model, social progress is founded upon individual empowerment and
the vital role of governments is to foster competitive solidarity50 by
enabling, not commanding, the individual and harnessing the power of the
market to serve the public interest.51 Notable among the first set of guidelines were specific commitments that closely resembled Blairs New Deal
for the unemployed and related strategies. Take, for example, the firm
targets set in the pillar of employability under which Member States will
ensure that every unemployed person is offered a new start before reaching one year, or in the case of young persons, six months of unemployment,
in the form of training, retraining, work practice, a job, or other employability measure.52 Active labour market measures to secure employability
include training for at least 20 per cent of the unemployed, more apprenticeships and the promotion of lifelong learning.53
Secondly, the guidelines were influenced by the highly contested but prevailing view of the OECD54 and neo-liberal economists that labour market
rigidities, such as business taxes, wage structures and benefit disincentives,
are at the root of unemployment in Europe and have contributed to a
widening of the employment gap with the US.55 In particular, the pillar of
entrepreneurship has a distinctly deregulatory edge and owes much to the
North American model, which is perceived as highly mobile, flexible and
business friendly. Commitments include: cutting burdens for businesses;
48
See T Blair, The Third Way: New Politics for the New Century (Fabian Society, London,
1998). Discussed by Kenner (1999, International Journal of Comparative Labour Law and
Industrial Relations) n 32 above.
49
See generally, A Giddens, The Third Way (Polity Press, Cambridge, 1998) pp 2768.
50
See W Streeck, Competitive Solidarity: Rethinking the European Social Model, MPIfG
Working Paper 99/8 (Max-Planck-Institut fr Sozialforschung, Cologne, September 1999)
p 3.
51
Blair, n 48 above, p 7.
52
Guideline 1 in the 1998 Employment Guidelines, Council Doc 13200/97 adopted in a
Council Resolution of 15 Dec 1997.
53
Ibid. Guidelines 35.
54
See for example, The OECD Jobs Study: Evidence and Explanations. Part II: The
Adjustment Potential of the Labour Market (OECD, Paris, 1994).
55
See H Siebert, Labor Market Rigidities: At the Root of Unemployment in Europe (1997)
11 Journal of Economic Perspectives 37; cf S Nickell, Unemployment and Labour Market
Rigidities: Europe versus North America (1997) 11 Journal of Economic Perspectives 55.

474 The European Employment Strategy

reducing tax and social security obstacles to self-employment and setting
up small businesses; and reversing the long-term trend towards higher taxes
and charges on labour.56 However, although the Commission sought to
focus policy on correcting the problems caused by such rigidities57 and
recommended a guideline on wage moderation,58 the Member States did
not accept the full thrust of these arguments and the resulting guidelines
were somewhat platitudinous.
Thirdly, the pillar of adaptability was a by-product of the Commissions
Green Paper on Partnership for a New Organisation of Work59 and earlier
initiatives60 which, as a counterpoint to the deregulatory thrust of the entrepreneurship pillar, sought to match flexibility with security by emphasising
new forms of work organisation based on high skills, high trust and high
quality flexible firms.61 Adaptability offers the prospect of a distinctly
European solution in which organisational innovation is the means to boost
growth in employment within a framework capable of preserving decent
labour standards and sustainable levels of social protection. From this perspective, globalisation, far from being a threat to the European economy,
can be seen as an opportunity to be grasped.62 The Green Paper emphasised the partnership model whereby both sides of industry accept the
challenge to fundamentally renew their organisation.63 The guidelines on
adaptability aim to modernise work organisation and forms of work primarily through sectoral and enterprise agreements.64 The Commissions
recent success in reviving the European Company Statute65 and introducing a Directive on establishing a general framework for informing and consulting employees66 must be understood in this context. Member States are
also encouraged under the guidelines to introduce more adaptable types of
employment contract.67 Both the language and content of the ensuing
56

1998 Employment Guidelines 812.

See Employment In Europe 1997, COM(97) 479, p 3.
58
See Trubek & Mosher, n 6 above at 9.
59
COM(97) 127. For the background, see ch 7.
60
Such as the ADAPT Community initiative introduced in the Structural Funds programming period 19941999 which, under Art 146 [ex 123] EC, is intended to facilitate workers
adaptation to industrial changes and changes in production systems, in particular through
vocational training and retraining. For details, see the Social Fund Reg 2084/93/EEC, OJ
1993, L193/39.
61
See S Deakin and H Reed, The Contested Meaning of Labour Market Flexibility: Economic Theory and the Discourse of European Integration in Shaw, n 9 above, 7199 at 72.
62
See A Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in
Europe (OUP, Oxford, 2001) p 193.
63
COM(97) 127, para 82.
64
1998 Employment Guideline 13.
65
Reg 2157/2001/EC on the Statute for a European Company (SE), OJ 2001, L294/1; and
Dir 2001/86/EC supplementing the Statute for a European company with regard to the involvement of employees, OJ 2001, L294/22.
66
Dir 2002/14/EC, OJ 2002, L80/29.
67
1998 Employment Guideline 14.
57

The European Employment Strategy Comes of Age 475

framework agreements on Part-time Work and Fixed-term Work68 chime
with this agenda.
Fourthly, the pillar on strengthening equal opportunities arose from
the strategy of mainstreaming of gender equality in the Fourth Action
Programme on Equal Opportunities for Men and Women69 and the
Community obligation to aim to eliminate inequalities and promote equality between men and women in Article 3(2) EC. The equal opportunities
pillar stresses four interlinked themes:70 tackling gender gaps in employment generally and particular sectors; reconciling work and family life,
including adequate childcare provision; facilitating return to work after
absence; and, as a by-product of the Helios II programme,71 integrating
people with disabilities into working life. The equal opportunities pillar
also provides a platform for the Community initiative EQUAL which
utilises the structural funds to promote a horizontal approach to combating all forms of discrimination and integrating persons excluded from the
labour market by means of transnational co-operation under Articles 13
and 137 EC.72
Next, we need to examine the methodology of the EES. The annual cycle
can be divided up into four stages:73
(1) The Council adopts employment guidelines on the basis of a recommendation from the Commission following consultation with Community institutions74 and the Employment Committee.75
(2) Each Member State submits a national action plan outlining the
employment situation and steps taken to implement the guidelines and
comply with any recommendations after consulting national social
partners.
(3) The Commission and Council issue a joint employment report consisting of a general section summarising the employment situation in the
EU across the four pillars and a detailed assessment of the performance
of each Member State taking account of any recommendations adopted
by the Council.
68

Respectively, Dir 97/81/EC, OJ 1998, L14/9, and Dir 99/70/EC, OJ 1999, L175/43.
See COM(95) 381 and Decision 95/593/EC on a medium-term Community action programme on equal opportunities for men and women (1996 to 2000), OJ 1995, L335/37.
70
1998 Employment Guidelines 1619.
71
Decision 93/136/EEC, establishing a Third Community Action Programme to assist
Disabled People, OJ 1993, L56/30.
72
See COM(2000) 853.
73
Following the procedure laid down in Art 128 EC.
74
The European Parliament, the Economic and Social Committee and the Committee of
the Regions must be formally consulted.
75
Formally established, in accordance with Art 130 EC, by Decision 2000/98/EC, OJ 2000,
L29/21. The Employment Committee replaces the Employment and Labour Market Committee previously established by Decision 97/16/EC, OJ 1997, L6/32. The social partners are represented on a separate Standing Committee on Employment set up under Decision 99/207/EC,
OJ 1999, L72/33.
69

476 The European Employment Strategy

(4) Based on a proposal from the Commission, and after consultation with
the Employment Committee and the Economic Policy Committee,76 the
Council may adopt recommendations directed at individual Member
States with a view to correcting specific problems in their employment
performance.
Each year the guidelines are revised, progress is closely monitored by reference to performance indicators or benchmarks, new ideas are introduced
and goals are ratcheted up.77 For the Member States, participating in the
EES is akin to stepping onto a steadily moving escalator leading inexorably
towards a convergence of objectives. Thus while the guidelines are normative in character and effect,78 in the sense that it is mandatory for Member
States to take them into account, they are not intended, nor have the capacity to produce, a settled framework of binding rules. Rather, the guidelines
are intended to be transformative over the long-term, imparting a repetitive soft law narrative to be interpreted and reinterpreted by a multiplicity
of actors leading, cumulatively, to a synthesis of policy approaches by
Member States but no single model. The aim is to produce a crossfertilisation of ideas and methods designed to channel an effective and socially protective response to global change by prioritising ends not means.
During the first cycle, 199899, the Commissions approach was to
encourage and persuade rather than censor individual Member States.79
Emphasis was placed on continuity and consistency based on the four
pillars. By April 1998, all Member States had produced national action
plans (NAPs) and, three months later, implementation reports based on the
guidelines. The UK Minister for Europe, in an assessment of the British
Presidency in the first six months of 1998, reiterated the view that employment policy would remain largely a matter for national governments.80 The
value of the exercise was regarded as one of peer review and exchange of
best practice. However, in the 1998 Joint Employment Report a number
of shortcomings in the process were identified.81 One factor had been the
rush to produce NAPs before many Member States had thought through
their strategies or reconciled the plans with their budgetary commitments.82
76
This Committee, originally established in 1974, has been reconstituted to oversee all
aspects of macroeconomic policy coordination: Decision 2000/604/EC, OJ 2000, L257/28.
77
See Trubek and Mosher, n 6 above at 10.
78
See Biagi, n 30 above at 160.
79
For the Commissions detailed analysis, see COM(98) 316. For a comprehensive analysis of the early phases of the Luxembourg process, see J Goetschy, The European Employment Strategy: Genesis and Development (1999) 5 European Journal of Industrial Relations
117.
80
D Henderson, The UK Presidency: An Insiders View (1998) 36 Journal of Common
Market Studies 563 at 567.
81
Employment Policies in the EU and in the Member States (European Communities,
Luxembourg, 1999).
82
Ibid p 15.

The European Employment Strategy Comes of Age 477

Moreover, although the involvement of multiple interlocutors at national
and European levels was welcomed, it also raised concerns about making
the whole process more complex and cumbersome.83
The shared approach of the Commission and Council in this early phase
was to consolidate the existing guidelines and streamline the reporting procedures.84 Nevertheless, several distinctive strands of the evolving EES were
emerging. First, it was soon apparent that the EES was about more than
mere state watching.85 Although the Commission held back at this stage
from proposing any recommendations to individual Member States and
sought to issue selective praise in roughly equal measure, it was noted that
the challenge to improve was greatest in Italy, Spain and Greece.86 The
ground was being prepared for the development of a cajoling and ultimately
naming and shaming87 approach designed to spur competition between
Member States.
Secondly, the Commission and Council used the joint employment report
as a vehicle to initiate a monitoring system to assess the implementation
of the guidelines by describing the starting position of each Member State,
on a comparable basis, with respect to a number of key areas of labour
market performance.88 The method chosen was to highlight the top three
States across eight performance indicators.89 Hence, the best performances
became the reference standard or benchmark for those countries to retain
and for others to emulate.90 The aim was to promote change and achieve
a continuous improvement in national policies through a process of mutual
learning91 and indirect coercion.92 Significantly, the benchmarks chosen
tended to reflect quantitative rather than qualitative factorsstriving to
achieve more jobs possibly at the expense of better jobs93and reflected the
overriding aim of catching up with the employment participation rate of
the US.
Benchmarking has swiftly become the principal methodology of the
EES. At one level benchmarking leads to a Europeanisation or policy
83

Ibid.
Ibid.
85
Szyszczak in Shaw, n 9 above at 209.
86
COM(98) 316, p 5.
87
See Szyszczak (2001, Common Market Law Review) n 7 above at 1147.
88
Joint Employment Report 1998, p 19.
89
Ibid pp 1926. The following performance indicators were used: employment growth;
employment rate; employment gender gap; employment rate 5064; unemployment rate; youth
unemployment ratio; unemployment gender gap; and long-term unemployment share.
90
Finland and Austria emerged as the top performers with four top three rankings
each, followed by Sweden, Luxembourg and Finland with three, the UK, Ireland and the
Netherlands with two, and Germany featured once. Six Member States failed to achieve a
top three place in any category: France, Italy, Spain, Greece, Belgium and Portugal.
91
See de la Porte et al, n 16 above at 292.
92
See Hodson and Maher, n 18 above at 727.
93
See Ball, n 36 above at 370.
84

478 The European Employment Strategy

transfer94 of employment policies, with the Commission playing a vital coordinating role in seeking to engineer convergence, and yet, it can also be
seen as a form of renationalisation95 whereby the process is driven by
national best practice rather then rules imposed from Brussels. The main
weakness of benchmarking, as a tool of governance is that it is best suited
to organisations that have identical, or similar, objectives.96 Difficulties arise
because of the diversity of the EU, differences in the social and political
context of Member States being compared, and variations in the size and
scale of the employment challenge.97 Member States may prefer local solutions to fit with their own circumstances but the benchmarks are top-down
rather than bottom-up and tend to reflect the inherent policy tensions
within the guidelines. Moreover, even if the benchmarks can be agreed, the
ways and means to pursue them are often hotly disputed.98
Thirdly, the social partners were involved, in varying degrees, in formulating and monitoring the first round of NAPs.99 Inclusion of the social partners and, in the longer-term, other members of civil society, is regarded
by advocates of a reformed European governance as crucial both for policy
input, to ensure a grass roots contribution to the detailed analysis of
Europes employment ills, and as a means of involving relevant stakeholders in the process of policy formulation at every level.100 The development
of partnership in policy formulation at national level, originally fostered as
a tool of European governance when the Communitys Structural Funds
were reformed in 1988,101 has become an increasingly important strand of
the deliberative process of the EES. Over time, as we shall see in Section III
of this chapter, this theme has emerged as a central element of the open
method of co-ordination and, as a means of increasing participation and
improving transparency, a main plank of the Commissions White Paper on
European Governance of July 2001.102
Further consolidation took place with the publication of the 1999
Employment Guidelines, which contained only minor modifications.103
Significantly, the additional guidelines were of a qualitative nature and
included: a review of the tax and benefit system to provide incentives for
the unemployed and inactive to enhance their employability;104 and pre94

Hodson and Maher, n 18 above at 722.

See Goetschy (2001, Industrial Relations Journal) n 10 above at 403.
See de la Porte et al, n 16 above at 292.
97
Ibid.
98
Ibid at 295.
99
Joint Employment Report 1998, p 6.
100
See de la Porte et al, n 16 above at 293; cf P Allott, European Governance and the
Re-branding of Democracy (2002) 27 European Law Review 60.
101
See J Scott, Law, Legitimacy and EC Governance: Prospects for Partnership (1998) 36
Journal of Common Market Studies 175.
102
COM(2001) 428.
103
Council Resolution of 22 Feb 1999, OJ 1999, C69/2.
104
Ibid. Guideline 4.
95
96

The European Employment Strategy Comes of Age 479

ventative and active policies to meet the employment integration needs of
the disabled, ethnic minorities and other disadvantaged groups.105
The 1999 Joint Employment Report and the 2000 Employment Guidelines marked the end of the pre-Lisbon phase of the Luxembourg process.
For the first time the Commission proposed recommendations to individual Member States under the procedure in Article 128(4) EC.106 In the
Commissions view, the EU was failing to fulfil its employment potential
and lacked a sufficiently vibrant entrepreneurial culture. The estimated full
employment potential of the Uniondefined by the Commission as the
level of employment that would be achieved if all Member States performed
as well as the best, or as well as the USwas some 30 million people
twice the number of recorded unemployed.107 Hence, although the EU had
marginally improved its performance since 1995, the gap between the EU
and US had widened considerably.108 The Commission identified eight areas
from across the four pillars where national implementation remained insufficient.109 These were: the fight against youth unemployment; preventing
long-term unemployment; tax reforms and unemployment benefit reforms;
job creation in the service sector; making the tax system more friendly;
modernising the organisation of work; the fight against gender inequalities;
and improving indicators and statistical tools.
Significantly, the least criticised countries were those with high social
standards, strong productivity levels and low unemployment (Denmark,
Sweden and Finland). Other countries with low unemployment or a rapidly
improving position were also praised (Luxembourg, the Netherlands,
Portugal and Austria). Notably, the UK, which had attuned itself most
closely with the North American model and had achieved a participation
rate above 70 per cent, was criticised, nonetheless, for a gender gap in fulltime employment and persisting long-term unemployment among older
people, ethnic minorities, lone parents and deprived communities. However,
the Commission reserved its strongest criticism for three laggards who
were responsible, in its view, for depressing the EU employment rate
(Germany, France and Italy) through a combination of high labour costs
and low participation rates.110
Not surprisingly, the Commissions suggestions met with a frosty
response from several Member States who were irritated by excessive
105

Ibid. Guideline 9.
The Commissions proposals were issued on 8 Sep 1998:
http://europa.eu.int/comm/dg05/empl&esf/empl99.
107
Community Policies in Support of Employment (Brussels, European Commission, 2000)
p 2.
108
The US Bureau of Labor Statistics estimated job growth of 14% in the US between 1996
and 2006, compared with 19% over the preceding 10 years: Employment in Europe, 1999
(European Commission, Brussels, 1999) p 86.
109
See further, Goetschy (2001, Industrial Relations Journal) n 10 above at 411.
110
See Employment in Europe 2000 (European Commission, Brussels, 2000) p 6.
106

480 The European Employment Strategy

finger-pointing111 and regarded the EES as essentially a revolving process
of information exchange between the European Council and national
administrations. However, the Commission was tactically astute, identifying shortcomings in the performance of all Member States. Eventually a
Council Recommendation on the implementation of the Member States
employment policies was adopted in February 2000.112 The Council warned
that recommendations should be used sparingly, should concentrate on priority issues and should be based on sound and accurate analysis.113 Nevertheless, of the 55 recommendations proposed by the Commission, 52 were
finally approved. The adoption of the Recommendation was a coup for
the Commission, which now regards specific recommendations to Member
States as a central part of the annual process. This view appears to have
been reluctantly accepted by the Council, which, by issuing further recommendations on the same basis in 2001114 and 2002,115 has regularised the
process within the annual cycle.
Recommendations are effective as a means of applying political and peer
pressure on Member States to converge towards a particular benchmark
but the structural reforms that they require may be alien to the policy objectives or traditions of some countries.116 Therefore, while compliance with
the recommendations may lead to the transposition and diffusion of policies from one Member State to another,117 the effectiveness of such action
will vary according to the particular social and political context and the
appropriateness of the policy solution. As Szyszczak notes, the real test, in
the absence of a power to sanction, will be how far the recommendations
are observed in practice.118
One other feature of the first phase was the introduction of parallel
processes designed to complement and mainstream the EES in accordance
with Article 127(2) EC. For example, at Cardiff in June 1998 the European
Council introduced a new process of co-ordination of economic reforms
alongside the Luxembourg process. The Cardiff process involves cyclical
co-ordination of structural reforms in services, products and capital
markets. Further, at the Cologne European Council of June 1999, a third
pillar of co-ordination was introduced in the form of macroeconomic
dialogue under the European Employment Pact,119 effectively superseding
the pre-Amsterdam Confidence Pact for Employment.120 Macroeconomic
111
112
113
114
115
116
117
118
119
120

See de la Porte et al, n 16 above at 295.

Recommendation 2000/164/EC, OJ 2000, L52/32.
Ibid recital 3.
OJ 2001, L22/27.
OJ 2002, L60/70.
See de la Porte et al, n 16 above at 295.
See Szyszczak (2001, Common Market Law Review) n 7 above at 1145.
Szyszczak in Shaw, n 9 above at 218.
See paras 720 and Annex I of the Presidency Conclusions.
Action for Employment in Europe, COM(96) 485.

The European Employment Strategy Comes of Age 481

dialogue is intended to involve the social partners and employment, fiscal
and monetary policy-makers within existing institutions. In the course of
this dialogue, ideas are exchanged on how to co-ordinate the employment
strategy and economic reforms.121 The status of employment as the EUs
highest policy priority is a precondition for such dialogue. Sensitive reforms
in areas such as wages, social security reforms and taxation, can be pursued
indirectly through dialogue as an alternative to explicit top-down guidelines and recommendations that would almost certainly be unworkable. As
with the earlier Confidence Pact, the main aim is to stimulate activity on
the ground and, in particular, encourage the parties at national, regional
and sectoral levels to sign up to social pacts that allow structural reforms
to go ahead at a pace that is acceptable to all actors.122
Each of these processes is aimed at building a consensus around economic
and social policies leading to convergence through networking and multilevel co-ordination. The introduction of new processes is intended to create
an atmosphere of continuous revolution leading to organisational change
and greater efficiency. Naming each process after European Council venues
not only satisfies the hosts, but also emphasises the growing importance of
the European Council rather than the Commission or the European Parliament in what is essentially an inter-governmental process where flexibility of procedure and choice of actors is, as Barnard observes,123 being used
to achieve labour market flexibility, in particular functional flexibility at
micro level.124
Multi-dimensional and multi-annual policy co-ordination is attractive not
only because it is driven by a desire to avoid conflict and seeks to be pluralistic but also, as an ongoing process, it offers the prospect of long-term
depoliticised European solutions to seemingly intractable national problems. In the view of the Commission, it is vital to promote new forms of
European governance to give people a greater say in how Europe is run and
build new forms of partnership between the different levels of governance
in Europe.125 There are, however, a number of disadvantages. In particular,
the involvement of a multiplicity of actors in myriad processes leads to
organisational overload and complexity. Moreover, the ad hoc nature and
remoteness of such processes, which may be regarded as little more than a
circuitous dialogue between lites, runs counter to incessant demands for
121

Annex I of the Presidency Conclusions, Council Resolution, paras 17.

For examples, see Gold et al, n 21 above; and M Rhodes and Y Mny, The Future
of European Welfare: A New Social Contract (Macmillan, Basingstoke, 1998) and M Rhodes,
Globalization, Labour Markets and Welfare States: A Future of Competititve Corporatism?
178203 at 18994.
123
See C Barnard, Flexibility and Social Policy in G de Brca and J Scott (eds) Constitutional Change in the EU: From Uniformity to Flexibility (Hart, Oxford, 2000) 197217 at
215.
124
See further Rhodes, n 122 above.
125
Strategic Objectives 20002005: Shaping the New Europe, COM(2000) 154, p 5.
122

482

The European Employment Strategy

greater transparency and legitimacy. Above all, in order to make such

processes effective, clear long-term strategic goals are required together with
a more systematic methodological approach to co-ordination that complements the traditional Community method of policy formulation and decision-making. It was with this task in mind that Europes leaders gathered
at Lisbon in March 2000 determined to make their mark on the new
millennium.

(2) The Lisbon Process and the Open Method of Co-ordination

In preparation for the Lisbon meeting the Commission published a
Communication entitled Strategic Objectives 20002005: Shaping the
New Europe .126 The Commission identified four strategic objectives to be
pursued over a five-year period: promoting new forms of European governance; a stable Europe with a stronger voice in the world; a new economic
and social agenda; and a better quality of life.127 Taking up themes later
echoed in its policy document on the Social Policy Agenda,128 the Commission called for policies aimed at building a competitive and inclusive
knowledge-based economy capable of promoting strong and sustained
growth, full employment and social cohesion.129 Each of the strategic objectives was intended to mark a distinctive European response to the challenge
of globalisation for:130
Europes challenge must be to make globalisation compatible with the common
interest . . . We must maximise its potential and minimise the undesirable sideeffects.

Over the space of just 41 paragraphs, the European Council at Lisbon

sought to confront the quantum shift arising from globalisation and
the knowledge-driven economy.131 Responding to the challenge posed by
the Commission, the European Council initially observed that these changes
were affecting every aspect of peoples lives and would require a radical
transformation of the European economy, before ambitiously declaring that
the Union must shape these changes in a manner consistent with its values
and concepts of society and also with a view to the forthcoming enlargement.132 In order to secure this ambition the European Council sought to
strengthen employment, economic reform and social cohesion. Over the
126
127
128
129
130
131
132

COM(2000) 154, p 5.
Ibid p 5.
COM(2000) 379.
COM(2000) 154, p 9.
Ibid p 8.
Lisbon European Council Presidency Conclusions, 23/24 Mar 2000, para 1.
Ibid.

The European Employment Strategy Comes of Age 483

next decade, the Union would set itself a new strategic goal to become
the most competitive and dynamic knowledge-based economy in the world
capable of sustainable economic growth with more and better jobs and
greater social cohesion.133 Achieving this goal would require an overall
strategy that would include: structural reforms for competitiveness and
innovation; modernising the European social model, investing in people
and combating social exclusion; and applying an appropriate macroeconomic policy mix.134 This strategy would be designed to enable the
Union to regain the conditions for full employment and to strengthen
regional cohesion against a sound macroeconomic background with an
average economic growth rate of 3 per cent a realistic prospect.135
Three significant steps taken at Lisbon to underpin this new strategy are
worthy of particular note. First, a mid-term review of the EES was to be
conducted to give new impetus to the process.136 Although the EES had
enabled Europe to substantially reduce unemployment there were still 15
million people out of work.137 More concrete targets were now required
and increased involvement of the social partners in drawing up, implementing and following up the guidelines. The review would address four
key areas:138 improving employability and reducing skills gaps; giving higher
priority to lifelong learning; increasing employment in services; and furthering all aspects of equal opportunities including reconciliation between
work and family life. New benchmarks would be set on lifelong learning
and improved childcare provision. Most importantly, in an important shift,
the Member States, having now firmly identified full employment as the
measure of success in achieving the strategic goal, were prepared to lay
down precise targets to raise the average employment rate from 61 per cent
to 70 per cent by 2010 and increase womens employment participation
from 51 per cent to 60 per cent over the same period.139
Each Member State would now be expected to set national targets for an
increased employment rate while recognising their different starting points.
Enlarging the labour force would be the key to reinforcing the sustainability of social protection systems.140 Hence, despite the professed commitment
to achieving an increase in the quantity and quality of jobs, the new targets
emphasised more rather than better jobs. Moreover, while the Presidency
Conclusions repeatedly referred to countries developing their own solutions, the final paragraph steered the Member States towards Third Way
133
134
135
136
137
138
139
140

Ibid para
Ibid.
Ibid para
Ibid para
Ibid.
Ibid para
Ibid para
Ibid.

5.
6.
28.
29.
30.

484 The European Employment Strategy

policies deemed necessary to achieve the strategic goal by relying primarily on the private sector and public-private partnerships.141
A second important step taken at Lisbon was to implement the open
method of co-ordination (OMC) as part of a more coherent and systematic approach to improving and extending the Luxembourg, Cardiff, and
Cologne processes and facilitating the achievement of the strategic goal.142
The OMC, which is designed to help Member States progressively develop
their own policies, involves the following:143
fixing guidelines for the Union combined with specific timetables for
achieving the goals that they set in the short, medium and long terms;
establishing, where appropriate, quantitative and qualitative indicators
and benchmarks against the best in the world and tailored to the needs
of different Member States and sectors as a means of comparing best practice;
translating these European guidelines into national and regional policies
by setting specific targets and adopting measures, taking into account
national and regional differences;
periodic monitoring, evaluation and peer review organised as mutual
learning processes.
The European Council would now assume a pre-eminent guiding and coordinating role by holding a meeting every spring devoted to economic and
social questions.144 The spring meeting would consider an annual synthesis report on progress based on agreed structural indicators relating to
employment, innovation, economic reform and social cohesion.145
An additional layer of the OMC would be the instigation of a High
Level Forum bringing together institutions, social partners and other bodies
to take stock of the Luxembourg, Cardiff and Cologne processes and the
contributions of the various actors to enhancing the European Employment
Pact.146 Further, with a view to increasing the legitimacy of the OMC:147
A fully decentralised approach will be applied in line with the principle of subsidiarity in which the Union, the Member States, the regional and local levels, as
well as the social partners and civil society, will be actively involved, using variable
forms of partnership. A method of benchmarking best practices on managing change
will be devised by the European Commission networking with different providers
and users, namely the social partners, companies and NGOs.

One ambitious possibility for partnership under the OMC was highlighted.
The European Council issued a special appeal to companies to assume a
141
142
143
144
145
146
147

Lisbon European Council Presidency Conclusions, 23/24 Mar 2000, para 41.
Ibid paras 3540.
Ibid para 37.
Ibid para 36.
Ibid.
Ibid para 40.
Ibid para 38.

The European Employment Strategy Comes of Age 485

corporate sense of social responsibility regarding best practices on lifelong
learning, work organisation, equal opportunities, social inclusion and sustainable development.148 In order to further this initiative the Commission
has issued a Green Paper on a European framework for Corporate Social
Responsibility.149 Hence, corporate social responsibility may be regarded as
a quid pro quo for pro-enterprise labour market and fiscal policies and an
acceptance of more flexible working methods by trade unions. To put it
another way, as Allott wryly observes, we are witnessing the governmentalising of the corporation and the corporatising of government.150
The OMC is a dynamic process that appears to know no bounds. According to Hodson and Maher, it may be seen as a new mode of governance
for three reasons.151 Firstly, in areas such as economic and employment
policy, the OMC has emerged as a mechanism for dealing with a specific
issue by co-ordinating national responses within a framework of commonly
agreed parameters. Secondly, as EU policy moves into politically sensitive
areas, the traditional Community method of centralised policy formulation
is more problematic due to difficulties in achieving policy convergence and
popular dissatisfaction with the Union. New methods of Europeanisation
are required to overcome these problems. Thirdly, by proffering national
co-ordination as an alternative to centralised harmonisation, the OMC provides a pragmatic rather than principled answer to the legitimacy question
without fully overcoming problems of litism and opacity. At this stage it
is too soon to determine whether the OMC, as a systematised soft law
method, will be embedded as a permanent feature of European governance
or a transitional step to a transfer of competence to the EU.152 For the time
being the OMC, viewed as a radical form of subsidiarity,153 appears to be
uniquely suited as a vehicle for driving forward integration by legitimating
new institutional practices, using softer more flexible forms of law and
involving actors at subnational and transnational levels.154
The momentum for the OMC as a horizontal method of EU governance
has swiftly gathered pace. At Lisbon the OMC was extended, in varying
forms of intensity, to a wide range of areas including: research and development; the information society; economic reforms; social protection; social
inclusion and enterprise policy. The Commissions Social Policy Agenda,155
approved at the Nice European Council,156 creates the potential for the
extension of the OMC to all areas of social policy, an approach consistent
148
149
150
151
152
153
154
155
156

Ibid para 39.

COM(2001) 366.
See Allott, n 100 above at 61.
Hodson and Maher, n 18 above at 72122.
Ibid.
Ibid at 719.
See de Brca, n 17 above at 8.
COM(2000) 379.
Presidency Conclusions, 7/9 Dec 2000, Annex I.

486

The European Employment Strategy

with amendments to the EC Treaty in the draft Treaty of Nice.157 At Stockholm, the first annual spring European Council on economic and social
questions, the OMC was extended to the areas of education and pensions.158
In a further development, the OMC has been incorporated into the enlargement process in order to enable applicant countries to assimilate to the EES.
Each applicant country is now required to draw up a NAP to prepare its
labour market for EU membership and non-binding recommendations can
be issued.159 In a separate development the Baltic Sea region has launched
a sectoral programme on labour market policy modelled on the European
Employment Pact.160
A third significant development at Lisbon, arising as a natural consequence of the implementation of the OMC, has been a deepening of the
process of Europeanisation in the related areas of modernising social protection and promoting social inclusion. Action in these areas is regarded
as essential for achieving the targets for full employment and as part of a
wider programme to modernise the European social model under the
umbrella of the Social Policy Agenda, considered in the next section of this
chapter.
Turning first to the area of social protection, the introduction of the OMC
can be seen as an intensification of a soft law process instigated in the form
of Council recommendations161 and Commission communications in the
1990s.162 Reform of national social protection systems is now regarded as
essential both in the context of labour market participation, as part of an
active welfare state to ensure that work pays,163 and as a response to the
demographic challenge arising from the estimate that by 2010 the number
of retired people will have increased rapidly while the share of the workingage population will have diminished.164 Hence, action in this area is necessary to meet key benchmarks on raising employment rates and reducing
public debt.165 In a follow-up Communication, the Commission underlined
157
Draft Art 137(2)(a) ECsubject to ratification, OJ 2001, C80/1. Discussed below at
pp 499500.
158
Presidency Conclusions, 23/24 Mar 2001, paras 11 and 32.
159
See Hodson and Maher, n 18 above at 725.
160
The countries involved are Denmark, Estonia, Latvia, Lithuania, Poland and Russia. Ibid
at 727.
161
See Recommendation 92/441/EEC on common criteria concerning sufficient resources
and social assistance in social protection schemes, OJ 1992, L245/46; and Recommendation
92/442/EEC on the convergence of social protection objectives and policies, OJ 1992, L245/49.
See further, ch 7.
162
The Future of Social Protection: Framework for a European Debate, COM(95) 466; and
Modernising and Improving Social Protection in the European Union, COM(97) 102.
163
Lisbon European Council Presidency Conclusions, para 31.
164
Stockholm European Council Presidency Conclusions, para 7. According to the Commission the old-age dependency ratiothe relationship between the working population and
those beyond the retirement agewill more than double from 24% in 2001 to 49% by 2050.
See The Lisbon StrategyMaking Change Happen, COM(2002) 14, p 16.
165
Stockholm European Council Presidency Conclusions, para 7.

The European Employment Strategy Comes of Age 487

the growing sense of concern about demographic changes in the following
terms:166
. . . the prospect of population ageing and the retirement of the baby boomer generation represents a major challenge to [the EUs historic achievements]. Population
ageing will be on such a scale that, in the absence of appropriate reforms, it risks
undermining the European social model as well as economic growth and stability
in the European Union.

The increasing importance of this issue is reinforced by the fact that, under
the draft Treaty of Nice, the modernisation of social protection systems is
added to the list of areas of social policy where the Community supports
and complements the activities of the Member States.167 However, harmonisation will not be permitted in this area, which remains distinct from
social security and social protection of workers168 where directives may
be adopted. Further, an advisory Social Protection Committee, closely
modelled on the Employment Committee, was established in June 2000 to
promote co-operation on social protection policies between Member States
and with the Commission.169 The Social Protection Committee is formally
recognised in the draft Treaty of Nice.170 Despite the location of these provisions in the Social Chapter, it is clear that the desire to modernise social
protection systems is founded on economic considerations. This is borne
out by the publication of reports by a High-Level Working Party on Social
Protection set up to examine the future of social protection as regards pensions, working in conjunction with the Economic Policy Committee, which
has been studying the financial implications of an ageing population.171 This
process is now being taken a stage further with the publication of national
strategy reports on the reform of pensions in the framework of the OMC172
with the triple aim of: safeguarding the capacity of systems to fulfil their
social objectives; ensuring financial sustainability; and adapting their capacity to meet the new needs of society.
Despite these initiatives, the infrastructure of the OMC in the field of
social protection is underdeveloped. Although the Commission proposed
166
The Future Evolution of Social Protection from a Long-Term Point of View: Safe and
Sustainable Pensions, COM(2000) 622. See also the follow-up Communication, Supporting
National Strategies for Safe and Sustainable Pensions through an Integrated Approach,
COM(2001) 362.
167
Draft Art 137(k) EC.
168
Draft Art 137(c) EC.
169
OJ 2000, L172/26. The Committee has two members from each Member State and the
Commission and meets monthly.
170
Draft Art 144 EC.
171
See the Joint Report of the Social Protection Committee and the Economic Policy
Committee, November 2001. Available at: <http://europa.eu.int/comm/employment_social/
soc-prot/social/index_en.htm>.
172
Barcelona European Council Presidency Conclusions, 15/16 Mar 2002, Part I, para 25
and Part II, Employment and Social Policy, para 5.

488

The European Employment Strategy

applying the techniques of the EES to the area of social protection and
creating a European model based on the creation of central pillars,173 the
European Council has sought to avoid the imposition of benchmarks, guidelines and NAPs. Instead, the emphasis is on dialogue and co-operation
rather than co-ordination.174 In part, this can be explained by the inadequacy of national statistics making it difficult to formulate valid comparisons for benchmarking purposes and target setting.175 However, this
problem also affects the EES. More fundamentally, there are differences in
the conception and arrangement of European welfare states within specific
institutional structures176 that have been painstakingly constructed and
fought over for generations. Member States fear an intrusion by the EU into
their cherished national social welfare systems177 and are determined to preserve their basic ethos and structures as far as possible, even if they accept
the need to modernise or talk the language of modernisation. Indeed, as a
means of reinforcing Member States independence of action in this area,
the draft Treaty of Nice adds an additional safeguard whereby measures
adopted under Article 137 EC:178
. . . shall not affect the right of Member States to define the fundamental principles
of their social security systems and must not significantly affect the financial equilibrium thereof.

This statement amounts to no more than a codification of the established

position of the Court that, while Member States are willing to share objectives and co-operate with each other on social welfare issues at the level of
the European Council, they remain determined to ensure that Community
law does not detract from their powers to organise their social security
systems.179
By contrast with the rather selective approach to the OMC in the area
of social protection, the co-ordination of policies for promoting social inclusion and combating social exclusion and poverty,180 one of the original
Essen priorities, is closer to the Lisbon model but is, nonetheless, much
173

See A Concerted Action for Modernising Social Protection, COM(99) 347. The four
pillars proposed by the Commission were employment, health care, old age and social exclusion. The Council added equal opportunities and the constructive use of technologies but
accepted the pillars only within a framework of co-operation. See the Conclusions of the
Employment and Social Affairs Council, 29 Nov 1999. See further, Szyszczak (2001, Common
Market Law Review) n 7 above at 1143.
174
See de la Porte et al, n 16 above at 297.
175
Ibid.
176
Ibid.
177
Ibid.
178
Draft Art 137(4) EC.
179
See Case 238/82, Duphar [1984] ECR 523, para 16. See T Hervey, Social Solidarity:
A Buttress Against Internal Market Law? in Shaw, n 9 above, 3147 at 31.
180
The positive terminology of promoting social inclusion is used interchangeably in the
various documents and reports with more negative references to combating social exclusion.

The European Employment Strategy Comes of Age 489

weaker than the EES. Significantly, the combating of social exclusion has
also been added to the list of areas in Articles 137 EC by the draft Treaty
of Nice,181 although as with the modernisation of social protection systems,
legislative harmonisation will not be permitted. The OMC in this area was
initiated by the publication of common objectives on poverty and social
exclusion at the Nice European Council in December 2000.182 Not surprisingly, at this exploratory stage, the common objectives are rather vague
and much less specific than the employment guidelines. The objectives are:
to facilitate participation in employment and access by all to resources,
rights, goods and services; to prevent the risks of exclusion; to help the most
vulnerable; and to mobilise all relevant bodies. Gender equality is to be
mainstreamed in all actions aimed at achieving the objectives.
In the light of these broad objectives, the Member States were invited to
submit NAPs on social inclusion during June 2001, indicating their priorities and efforts over a bi-annual cycle. Following the Commissions assessment of the NAPs,183 the Council and Commission approved a Joint
Inclusion Report at the Laeken European Council in December 2001.184 The
Joint Inclusion Report contains a set of common indicators and examples
of best practice based on a report of the Social Protection Committee,
although the Commission notes a general lack of rigorous evaluation of
policies and programmes by the Member States.185 Moreover, cyclical activity under the OMC has now been supplemented by more conventional
Community action under Article 137(2) EC in the form of a European
Parliament and Council Decision establishing a programme to encourage
co-operation between Member States to combat social exclusion.186 This
is consistent with the objective of mainstreaming the objective of fighting
poverty and social exclusion into relevant strands of policy, at both national
and Community level.187
The common indicators are neither guidelines nor benchmarks. Rather
the objective is to use the indicators to monitor progress towards the general
goal set at Lisbon of making a decisive impact on the eradication of
poverty by 2010.188 Under the indicators, which will not be harmonised
at EU level,189 a low income threshold has been set at 60 per cent of median
181

Draft Art 137(j) EC.

Annexed to the Presidency Conclusions.
183
COM(2001) 565.
184
Presidency Conclusions, 14/15 Dec 2001, para 28 and Annex IV.
185
COM(2001) 565, Executive Summary, Part I, para 5.
186
Decision 50/2002/EC, OJ 2002, L10/1. The action programme is financed to the tune
of 75 million.
187
Lisbon Presidency Conclusions, para 33.
188
Report on Indicators in the Field of Poverty and Social Exclusion (Social Protection
Committee, Brussels, Oct 2001) p 2.
189
Ibid p 3.
182

490 The European Employment Strategy

incomes and related primary indicators concern the most important
elements deemed to lead to social exclusion.190 In 1997, more than 60
million people18 per cent of the EU populationwere living in households with an income below the threshold.191 Whilst these methodological variations may be deemed consistent with the inherent flexibility and
dynamism of the OMC, they also reflect the fact that the Treaty provides
no framework for co-ordinating an approach to the highly complex
and multidimensional phenomenon of social exclusion/inclusion.192 In due
course, this process will almost certainly lead to benchmarking and, over
time, the indicators may be converted to non-binding guidelines with some
involvement of stakeholders in the process based on partnerships of all
concerned.193 However, in the short to medium-term this issue remains
extremely sensitive,194 a point underlined when, at the spring 2002
European Council in Barcelona, proposed targets for halving the number
of people at risk of poverty by 2010195 were rejected in favour of the general
goal agreed at Lisbon.196
Increasingly, post-Lisbon, the EUs heightened activity in the areas of
social protection and social exclusion revolves around the twin objectives
of economic growth and social cohesion. Full employment is posited as the
best safeguard against unacceptable levels of poverty and exclusion and the
most effective means of sustaining social protection systems in an ageing
Europe. Moreover, to highlight the interdependence of the Lisbon priorities, the aims of modernising social protection and promoting social inclusion have been mainstreamed in the 2001 Employment Guidelines.197
However, the EU is not primarily concerned with eradicating poverty as a
matter of fairness or equality, or as a means of closing the income gap, or
as an act of social solidarity. Rather, as the European Council note, the
creation of a society with greater cohesion and less exclusion is regarded,
primarily, as a precondition for better economic performance.198 However,
190
Report on Indicators in the Field of Poverty and Social Exclusion (Social Protection
Committee, Brussels, Oct 2001) p 2. The primary indicators include: distribution of income;
persistence of low income; median low income gap; regional cohesion; long-term unemployment; people living in jobless households; early school leavers not in education or training;
life expectancy at birth; and self-perceived health status. The report also lists secondary indicators that support the lead indicators and describe other dimensions of the problem.
191
COM(2001) 565, Executive Summary, Part I, para 10.
192
See further, Towards a Europe of Solidarity: Intensifying the fight against social exclusion, fostering integration, COM(92) 542. Discussed in ch 7.
193
See Art 2(3) of Council Decision 2002/50/EC, OJ 2002, L10/1.
194
See de la Porte et al, n 16 above at 298.
195
COM(2002) 14, p 16. The target would have been based on the average level in 1997
(the latest available year) of 18% of the EU population considered to be at risk of poverty
after account is taken of support from welfare systems. There is considerable variety among
the Member States with the share of the population below the threshold ranging from 8% to
23%.
196
Presidency Conclusions, 15/16 Mar 2002, para 24.
197
Decision 2001/63/EC, OJ 2001, L22/18, recital 6 of the preamble.
198
Nice Presidency Conclusions, Annex II, p 2.

The Social Policy Agenda 491

paid work does not automatically provide a passport to social inclusion.199
Whether or not it does so depends on the quality of work offered200 because,
as Lister observes,201 to the extent that the unemployed are moving into or
staying in low paid and insecure jobs at the bottom of an increasingly
polarised labour market, they will continue to occupy a marginalised position which is inconsistent with full and genuine inclusion. Slowly, however,
as the EES adapts post-Lisbon, the importance of the quality of work is
rising up the agenda as it becomes increasingly clear that higher productivity depends on decent employment as well as full employment.202

III THE SOCIAL POLICY AGENDAFROM ECONOMIC TO SOCIAL,

FROM SOCIAL TO ECONOMIC?

(1) Quality, Quality, Quality

Shortly after the Lisbon meeting the Commission proceeded with the publication of its Social Policy Agenda (SPA),203 subsequently approved at the
Nice European Council in December 2000.204 Over the course of the same
long weekend, the draft Treaty of Nice was negotiated and the EU Charter
of Fundamental Rights205 was issued as a non-binding solemn proclamation, providing a new framework of EU common values based on solidarity and justice.206 We will explore the potential of the EU Charter in
chapter 12, but for now it is important to appreciate the immediate significance of the SPA.
The primary purpose of the SPA is to meet the challenge of the new strategic goal by highlighting the essential linkage between Europes economic
strength and its social model. While this approach can be traced back to
the White Paper on Social Policy of the mid-1990s,207 the SPA marks a break
from the deregulatory strategies advanced in the earlier, more influential,
199
See R Lister, Citizenship, Exclusion and the Third Way in Social Security Reform:
Reflections on T.H. Marshall (2000) 7 Journal of Social Security Law 70 at 83.
200
See A Atkinson, Preface in A Atkinson & J Hills (eds) Exclusion, Employment and
Opportunity (Centre for Analysis of Social Exclusion, London, 1998) p 1. See Lister, ibid.
201
Ibid.
202
See Ball, n 36 above at 373.
203
COM(2000) 379. For discussion see Szyszczak (2001, Common Market Law Review)
n 7 above; C Barnard, S Deakin and R Hobbs, Capabilities and Rights: An Emerging Agenda
for Social Policy? (2001) 32 Industrial Relations Journal 464; and P Syrpis, Smoke Without
Fire: The Social Policy Agenda and the Internal Market (2001) 30 Industrial Law Journal
271.
204
Presidency Conclusions, para 13.
205
OJ 2000, C364/1.
206
Presidency Conclusions, Annex I, para 11.
207
COM(94) 333. See Barnard et al (2001, Industrial Relations Journal) n 203 above at
476.

492 The European Employment Strategy

White Paper on Growth, Competitiveness, Employment.208 Traditionally,
Community-level social policy has been perceived as a beneficial by-product
of economic integration and as a complement to national social legislation.
European social legislation has been motivated by a desire to manage structural change and provide a minimum level of employment and social
protection against economic vicissitudes in circumstances where it is not
possible, or deemed counterproductive, to find national solutions.
In the SPA, the Commission rebuts the conventional passive view of
European social policy and proposes instead that the new guiding principle will be to strengthen the role of social policy as a productive factor.209
Social policy is productive because it represents an investment in human
resources with beneficial economic effects. Therefore, according to the
Commission, there is a positive correlation between social expenditure and
levels of productivity.210 Viewed from this perspective, an improved and
modernised European social model is capable of underpinning economic
dynamism and employment growth.211 Moreover, recognition of fundamental social rights by means of the EU Charter can be seen as a means of
facilitating individuals to fulfil their economic potential.212 This runs
counter to the argument that social regulation of the employment relationship necessarily entails economic costs that must be weighed against the
social gains achieved.213 It follows that economic, employment and social
policies must be understood as mutually reinforcing and, with the right
policy mix, can create a virtuous circle of economic and social progress.214
In order to create this virtuous circle the Commission calls for economic
policies founded on competitiveness and dynamism, social policies based
on quality and cohesion, and employment policies that promote full
employment and quality of work.215 Hence, the promotion of quality is presented as the driving force for a thriving economy, more and better jobs,
and an inclusive society because:216
Quality of work includes better jobs and more balanced ways of combining working
life with personal life . . . Quality of social policy implies a high level of social protection, good social services available to all people in Europe, real opportunities for
all, and the guarantee of fundamental social rights . . . Quality in industrial relations
is determined by the capacity to build consensus on both diagnosis and ways and
means to take forward the adaptation and modernisation agenda.
208

Bulletin of the European Communities Supplement 6/93.

COM(2000) 379, p 5.
Ibid pp 56.
211
Ibid p 7.
212
See Barnard et al (2001, Industrial Relations Journal) n 203 above at 466. See further,
Supiot, n 62 above, pp 190214.
213
COM(2000) 379, p 7.
214
Ibid p 6.
215
Ibid.
216
Ibid pp 1314.
209
210

The Social Policy Agenda 493

When approving the SPA at Nice, the European Council focused on attaining quality in work because of its importance for growth and as an incentive to work.217 Policies on quality in work should address working
conditions, health and safety, remuneration, gender equality, balance
between flexibility and job security, social relations.218 In order to make
the rhetoric of quality more meaningful a fresh set of indicators on quality
should be produced by the Employment Committee.219
In a separate Communication on Quality,220 the Commission have
attempted to put some flesh on the bones. According to the Commission,
quality reflects the desire, not just to defend minimum standards, but
to promote rising standards and ensure a more equitable sharing of
progress.221 Quality also depends on retaining the European social model
of mainly public social spending in preference to the US model, which
relies heavily on private expenditure with benefits unevenly spread among
the population.222 In seeking to define quality in work, or better jobs, the
Commission emphasise not only the existence of the job but also the characteristics of employment.223 In order to provide a framework for the analysis of quality in work and develop appropriate indicators, the Commission
has divided the main characteristics into two dimensions:224
Job characteristics: objective and intrinsic characteristics, including: job satisfaction,
remuneration, non-pay rewards, working time, skills and training and prospects for
career advancement, job content, match between jobs characteristics and worker
characteristics;
The work and wider labour market context: gender equality, health and safety, flexibility and security, access to jobs, work-life balance, social dialogue and worker
involvement, diversity and non-discrimination.

The two dimensions have been sub-divided into ten areas with detailed indicators under each heading.225 Both the Employment Committee and the
European Council have approved the Commissions proposals.226 It has

217
218
219
220

Presidency Conclusions, Annex I, Part I(c).

Ibid.
Ibid.
Employment and Social Policies: A Framework for Investing in Quality, COM(2001)

313.
221

Ibid p 3.
Ibid p 5. The Commission highlight the fact that 40% of the US population does not
have access to primary health care, even though spending per head as a proportion of GDP
is higher than in Europe.
223
Ibid p 7.
224
Ibid p 8.
225
Ibid. Annex II. The ten areas are: intrinsic job quality; skills, lifelong learning and career
development; gender equality; health and safety at work; flexibility and security; inclusion and
access to the labour market; work organisation and work-life balance; social dialogue and
worker involvement; diversity and non-discrimination; overall work performance.
226
Council Document 14913/01, annexed to the Laeken Presidency Conclusions.
222

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The European Employment Strategy

become quickly apparent, however, that compiling the indicators is problematic and the subject matter is extremely sensitive for certain Member
States. Many of the Commissions draft indicators refer to the unavailability of data. Indeed the Commission have warned about the need to avoid
interpreting the indicators in a simplistic way and have advised Member
States to relate them closely to policy objectives and standards.227 As if
to underline the sensitivity of the indicators, Spain has issued a statement
objecting to a separate indicator on industrial accidents because a methodology for collecting data does not exist.228 Hence, while quality is now
a central part of the overall policy equation, the success of the SPA will
depend on whether there is the necessary political willat all levelsto
establish an effective system for defining, monitoring and implementing the
indicators.
Nonetheless, the importance of the quality indicators should not be
underestimated. By focusing on characteristics of employment, in the broadest sense, they offer a vision of the concept of quality that includes the
quality of the work experience from the perspective of the worker. Thus
quality in work addresses not only issues such as pay and rising standards,
both at work and in the wider environment, but also the personal and
professional development of the worker. Such an approach, if followed
through, would take arguments concerning ergonomics and humanising the
world of workwhich have tended to be advanced from an objective standpointto a new stage.
One method of implementing the quality indicators by means of the
OMC is through the employment guidelines. Following the endorsement of
both the working methods and importance of the EES at Lisbon, the 2001
Employment Guidelines were revamped. Adopted for the first time in the
form of a binding Council Decision,229 the Guidelines were prefaced by a
set of overarching horizontal objectives superimposed above the four pillars
and vertical guidelines around which Member States should articulate their
responses as part of a coherent overall strategy for achieving full employment.230 Further, following a decision of the Stockholm European
Council,231 it was agreed that quality in work should be included as a specific horizontal objective in the 2002 Employment Guidelines.232 The new
Horizontal Objective B incorporates both of the quality in work dimensions drawn from the Commissions Communication, which are put
forward as areas for consideration for Member States who will endeav227

COM(2001) 313, p 10.

Council Document 14913/01, addendum. The relatively high level of industrial accidents
in the Spanish construction industry have been highlighted in Commission reports on health
and safety over many years.
229
Decision 2001/63/EC, OJ 2001, L22/18, recital 6 of the preamble.
230
Ibid. Annex.
231
Presidency Conclusions, para 27.
232
Decision 2002/177/EC, OJ 2002, L60/60.
228

The Social Policy Agenda 495

our to ensure that policies across the four pillars contribute to maintaining
and improving the quality of work.233 In addition, references to quality
have been integrated into specific thematic guidelines.234
Other horizontal objectives also emphasise quality factors. For example,
Member States are obliged to develop comprehensive and coherent strategies
for lifelong learning235 that will include national targets for increasing human
resources and participation in further education and training.236 Further,
Member States shall develop a comprehensive partnership with the social
partners for the implementation, monitoring and follow-up of the EES.237
The shift of emphasis is also detectable in the detailed 2002 Employment
Guidelines which include: developing policies for active ageing;238 promoting social inclusion by access to employment while being aware of the danger
of marginalising the working poor;239 encouraging the take-up of entrepreneurial activities;240 modernising work organisation;241 and supporting
adapatability in enterprises as a component of lifelong learning.242 The guidelines on gender mainstreaming have also been considerably strengthened.
Member States are now obliged to address: equal pay; the gender impact of
tax and benefit systems; consultation with gender equality bodies; gender
impact assessments under each guideline; and separate indicators to measure
progress in gender equality in relation to each guideline.
While the incorporation of quality into the guidelines and horizontal
objectives is a significant development, tension between the objectives of
job creation and the provision of decent work remain.243 Thus, although
the 2001 and 2002 Employment Guidelines are inculcated with the quality
agenda, the quantitative aspects of the Lisbon priorities remain to the fore.
Indeed the pressure for quantitative outcomes has been accentuated by the
decision of the Stockholm European Council to set interim targets for the
overall employment rate of 67 per cent (57 per cent for women) by 2005,244
and add a new long-term target employment rate of 50 per cent for older
233
234

Ibid. Annex.
Explanatory Memorandum to the draft 2002 Employment Guidelines, COM(2001) 511,

p 3.
235

Decision 2002/177/EC, OJ 2002, L60/60, Horizontal Objective C.

See for example, Guideline 4, ibid which includes targets for: halving by 2010 the number
of 1824 year olds with only lower-secondary level education who are not in further education or training; and increasing the proportion of the adult working age population (2564
year olds) participating at any given time in education and training.
237
Ibid. Horizontal Objective D. Discussed below at pp 503505.
238
Ibid. Guideline 3.
239
Ibid. Guideline 7.
240
Ibid. Guideline 9.
241
Ibid. Guidelines 1314.
242
Ibid. Guideline 15.
243
See Ball, n 36 above at 374.
244
Presidency Conclusions, para 9. According to the latest data, there is an 18% gender
gap in employment between men and women. Significantly, there is also a 14% gender pay
gap but no specific target for its reduction was referred to at Stockholm. See COM(2002) 89,
p 4.
236

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The European Employment Strategy

persons (aged 5564) by 2010.245 These new targets have been incorporated into the first horizontal objective in the 2002 Employment Guidelines.246 Quality in work forms the second horizontal objective. Although
separate horizontal objectives direct Member States to set priorities in a balanced manner across the pillars and objectives, respecting the integrated
nature and equal value of the guidelines,247 and adhere to the quality indicators,248 the clear message is more jobs first, better jobs second.
More generally, by emphasising quality, in all its aspects, the Commission
has provided a rationale for reviving dormant legislative proposals under
the cover of the SPA. For example, the primary aim of the draft directive
on working conditions for temporary workers249 is to improve the quality
of temporary work by ensuring that the principle of non-discrimination
is applied to temporary workers.250 This is reinforced by the secondary
aim, which is to establish a suitable framework for the use of temporary
work to contribute to the smooth functioning of the labour and employment market.251 While the proposal has been launched under Article 137(2)
EC, its centre of gravity lies with the Employment Title and the link between
the quality of work and economic performance. The Commission has
sought to underline this link by explicitly presenting the draft directive as
an example of productive social policy on the basis that it will stimulate
the creation of quality jobs, promote diverse forms of employment and help
reconcile flexibility and security.252 References to the rights of every worker
to decent working conditions, derived from the Social Charter253 and the
Charter of Fundamental Rights254 are confined to the preamble.
Similar considerations lie behind the revival of proposals for worker
involvement which can be seen as contributing to improving partnership,
managing change, promoting quality in industrial relations and quality in
corporate decision-making. In March 2002, Directive 2002/14 on establishing a general framework for informing and consulting employees in the
European Community was finally adopted after four years of debate.255 The
245
Presidency Conclusions, para 9. In 2001 the estimated rate of employment participation
among this group was 38.3%COM(2002) 89, p 4.
246
Decision 2002/177/EC, OJ 2002, L60/60, Horizontal Objective A.
247
Ibid. Horizontal Objective E.
248
Ibid. Horizontal Objective F.
249
COM(2002) 149. The Commission published the proposal on 20 Mar 2002 after the
social partners had failed to reach agreement within the timescale provided for under Art
138(4) EC.
250
Draft Art 2(a).
251
Draft Art 2(b).
252
Explanatory Memorandum, p 2. See also, draft recital 3.
253
Draft recital 2.
254
Draft recital 1.
255
Dir 2002/14/EC, OJ 2002, L80/29. Under Art 11(1) the implementation date is 23 Mar
2005. For the original proposal see OJ 1999, C2/3; and for the revised proposal, COM(2001)
296.

The Social Policy Agenda 497

Directive applies to all companies with 50 employees or more, representing just 3 per cent of all EU companies but, significantly, 50 per cent of all
employees.256 Originally envisaged as an instrument that would help facilitate change in times of crisis and avoid or mitigate the effects of corporate
restructuring, as vividly demonstrated by the Renault affair,257 the thrust
of the Directive, as adopted, is closer to the wider aims of the EES and the
SPA. In particular, the Directive is now based on the concepts of anticipation, prevention and employability that are to be incorporated into the
policies of individual undertakings by strengthening the social dialogue
with a view to promoting change compatible with preserving the priority
objective of employment.258 Indeed, the assimilation of the aims of the
Directive with those of the EES has made it easier for Member States to sell
this measure to a somewhat sceptical corporate audience.
Likewise the European Company Statute (ECS), now introduced as a
Regulation259 and accompanying Directive,260 has been repositionedafter
30 years on the drawing boardas a measure that will combine greater
freedom for transnational companies in the internal market with employee
influence over decision-making.261 In the context of the SPA and the EES,
the ECS is presented as a means of improving the quality of work and industrial relations by involving workers more in managing changes in the
economy and labour market arising from globalisation.262
Ultimately, the successful delivery of quality in work, social policy and
industrial relations in the EU will depend, on the one hand, on the correlation between economic competitiveness, productivity and employment
growth and, on the other, the capacity of national and European actors to

256
See the Commission Press Release, New Worker Information and Consultation Directive a modern business tool , 17 Dec 2001. Available at:
<http:europa.eu.int/comm./employment_social/news/>.
257
See ch 7 for discussion.
258
Recital 10 of the preamble.
259
Reg 2157/2001/EC on the Statute for a European company (SE), OJ 2001, L294/1.
Under Art 2(4) a public limited-liability company registered in one Member State with a subsidiary company in another Member State for at least two years may voluntarily transform
itself into a European Company. The purpose, according to recital 1 of the preamble, is to
enable the company to plan and reorganise its business on a Community scale. In return, the
company must abide by the rules governed by the Reg (Art 9).
260
Dir 2001/86/EC supplementing the Statute for a European company with regard to the
involvement of employees, OJ 2001, L294/22. Art 1(2) provides for obligatory employee
involvement in the European Company. While the original proposals sought to establish a
uniform method of employee involvement in the European Company, Art 2(h) allows for diversity based on a negotiated procedure. Employee involvement may include any mechanism,
including information, consultation and participation, through which employees representatives may exercise an influence on decisions to be taken by the company. The legal base for
both measures was Art 308 [ex 235] EC, the general powers provision. Under Art 14(1) the
implementation date is 8 Oct 2004.
261
See the Nice Presidency Conclusions, Annex I, Part II(a).
262
Ibid.

498 The European Employment Strategy

develop and utilise an effective range of legislative and non-legislative
means. It is to this question that we shall now turn.

(2) Delivering the Social Policy AgendaHarmonisation, Co-ordination,

Co-operation and Partnership
When the SPA was published in June 2000 it was quickly apparent that this
was not a conventional action programme. Whereas the Social Action
Programme 19982000 had contained a familiar list of proposals for
Community legislation to complete and consolidate the framework of
minimum social standards,263 the ambitious vision of the SPA is to be
achieved primarily through the OMC and the activity of all stakeholders
and actors based on an improved form of governance.264 Indeed, notwithstanding the explicit objective in favour of harmonisation in Article 136 [ex
117] EC, the Commission declared that:265
The new Social Policy Agenda does not seek to harmonise social policies. It seeks
to work towards common European objectives and increase co-ordination of social
policies in the context of the internal market and the single currency.

In other words, the EUs objectives can be achieved without harmonisation

of social policies. The combined effect of the Amsterdam Treaty, the
Luxembourg process and the Lisbon strategic goal, has been to move social
policy from the margins to the centre of the EUs endeavours. Within this
new paradigm266 it is possible for policies and actions to be fashioned
across the full range of social policy fieldswhich may or may not lead to
harmonisationwithout the need for strict reference to Community or
national competences, so long as the ultimate aim is the achievement of the
strategic goal. Thus to fulfil the EUs ambitious priorities of full employment, more and better jobs, lifelong learning and closing the gender gap, a
combination of all existing means will be appliedthe OMC, legislation,
social dialogue, structural funds, programmes, mainstreamingall underpinned by policy analysis and research.267 Moreover, consistent with a
dynamic approach to subsidiarity, the level at which action is taken is less
important than the action itself and its effectiveness. The only criterion for
determining the intensity of the action and which level is appropriate is one
of outcome rather than process268in other words, ends not means.

263
264
265
266
267
268

COM(98) 259, p 1.
COM(2000) 379, p 14.
Ibid p 7.
See Szyszczak (2001, Common Market Law Review) n 7 above at 1125.
COM(2000) 379, pp 1415.
See de Brca, n 17 above at 15.

The Social Policy Agenda 499

Significantly, the purpose of legislation as a technique under the SPA is
to develop or adapt standards to ensure the respect of fundamental
social rights and to respond to new challenges.269 Legislation is regarded
as ongoing rather than merely programmatic or simply concerned with
minimum standards. Moreover, the OMC may lead to co-operation, convergence, or even harmonisation. As a malleable method for furthering the
SPA, the OMC is best understood as a refined soft law technique which,
through a range of toolshigh-level pronouncements, peer pressure, task
forces, guidelines, performance indicators, benchmarking, scoreboards
and recommendationsmay induce compliance with EU objectives, even
without binding legislation or formal sanctions, in areas that may be wholly
within the competence of the Member States. Barnard and Deakin have
aptly described the OMC in the context of social policy as an example
of reflexive harmonisation,270 a technique where a range of transnational
instruments are deployed to set parameters for the laws and/or policies of
the Member States, each combining to steer national laws and practices
in the direction of EU objectives.271
In the draft Treaty of Nice, the Member States have attempted to bring
the Social Chapter into line with the de facto development of the OMC and
their ambitions for the SPA. Draft Article 137 EC, as revised, will consolidate the existing fields of permitted legislative activity, adding only the
Lisbon priorities of combating social exclusion and modernising social protection systems.272 Article 137(2)(a) EC, as drafted, will add the following:
[The Council] may adopt measures designed to encourage cooperation between
Member States through initiatives aimed at improving knowledge, developing
exchanges of information and best practices, promoting innovative approaches and
evaluating experiences, excluding any harmonisation of the laws and regulations of
the Member States.

This provision will apply to all listed areas of activity in the Social Chapter.
It precedes the retained legal base under which the Community may continue to adopt directives,273 although this does not necessarily indicate an
order of preference in the choice of methods. Legislative action short of harmonisation will also be possible in all areas, in which case qualified majority voting and the co-decision procedure will apply.274 Most activities falling
269

COM(2000) 379, p 14.

C Barnard and S Deakin, In Search of Coherence: Social Policy, the Single Market and
Fundamental Rights (2000) 31 Industrial Relations Journal 331.
271
See Barnard et al (2001) n 203 above at 478.
272
Draft Art 137(1)(j) and (k) EC, OJ 2001, C80/1. The only other substantive change is
the deletion of the final field listed in the current Art 137(3) ECfinancial contributions for
promotion of employment and job creationa duplication of Art 129 EC in the Employment
Title.
273
Draft Art 137(2)(b) EC, which will replace Art 137(2)EC.
274
In accordance with the procedure under Art 251 [ex 189b] EC.
270

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The European Employment Strategy

under the umbrella of the OMC would appear to be covered by this

provision, but the reference to cooperation rather than coordination suggests caution on the part of the Member States who are, perhaps, unwilling to constitutionalise the dynamic and flexible OMC in the Treaty.
When approving the SPA at Nice, the European Council sought to
emphasise the importance of outcomes rather than processes by inviting
the Commission to present an annual scoreboard on the progress of implementation.275 Scoreboards are a means of measuring performance delivery
across a whole policy area at regular intervals. However, unlike the Internal Market Scoreboard, which the Commission uses to name and shame
Member States who have implementation deficits,276 the SPA Scoreboard
is a much tamer affair, amounting to little more than a progress report with
a very similar format to earlier annual reports on the implementation of the
Social Charter Action Programme. Nevertheless, although the Scoreboard
does not name names, it is now synchronised with the publication of an
expanded list of EU Best Performance Indicators277 which provide league
tables of the top three states in areas such as employment, productivity,
economic growth, education and training and poverty. This information
feeds into the annual synthesis report submitted to the European Council
at its economic and social meeting every spring.
In the second annual SPA Scoreboard published in February 2002278 the
full range of planned legislation, areas for the development of the OMC,
action programmes, structural fund activity and social dialogue, has been
presented. Legislation is highlighted in fields such as worker involvement,
temporary work and non-discrimination. In most areas, apart from the EES
and social exclusion, the OMC is at a very early stage of development. One
area where the OMC has been formally introduced is pensions where, in
response to heightened concerns about the budgetary impact of ageing,
common objectives have been set and national reporting will follow.279
Other activities which may ultimately lead to the introduction of the OMC
include: the establishment of a High-Level Task Force on skills and mobility;280 a new health and safety strategy with an emphasis on monitoring and
preventing occupational accidents and diseases;281 the introduction of long275
Nice Presidency Conclusions, Annex I, p 5. The first scoreboard was issued in February
2001, COM(2001) 104.
276
The Internal Market Scoreboard was introduced in May 1997. For the November 2001
Scoreboard see: <http://europa.eu.int/comm/internal_market/en/update/score/score9.htm>.
277
Updated online on: <http://europa.eu.int/comm/eurostat>. For a summary see
COM(2002) 14, pp 89.
278
COM(2002) 89.
279
Ibid p 20. Approved by the Laeken European Council, Dec 2001.
280
Final report, 14 Dec 2001:
<http://europa.eu.int/comm/employment_social/general/index_en.htm>. See also, Recommendation 2001/613/EC on mobility within the Community for students, persons undergoing
training, young volunteers, teachers and trainers, OJ 2001, L215/30.
281
A New Community Strategy on Health and Safety at Work (20022006) COM(2002)
118.

The Social Policy Agenda 501

term objectives on health care;282 new targets on the provision of childcare;283 and the publication of indicators on the gender pay gap.284
These developments reveal both the inherent dynamism of Community
soft law and the potential of the OMC to develop and extend its tentacles
across the breadth of social policy. However, much of this activity is uncoordinated, unpredictable and lacks clear direction or purpose. The OMC
or at least some of its elementsis most likely to be extended to those areas
most closely linked to meeting the targets on employment and ensuring the
viability of social protection systems in the light of the budgetary requirements of the Stability and Growth Pactpensions, social exclusion, care
for the elderly and childcare. In the majority of areas, where Community
legislation is not an option and the OMC is unlikely to develop, evidence
from the Scoreboard suggests that delivery of the SPA in general and the
drive for quality in particular, will depend on co-operation backed up by
influential, but not coercive, soft law. Ultimately, therefore, much will
depend on the capacity of national, local and sectoral actors to ensure that
the Member States maintain the political will and the capacity to deliver
their strategic objectives.
For this reason the reinforcement of the social dialogue and attempts to
involve other partners and stakeholders from civil society285 in the overall
delivery and governance of the SPA are of particular significance. According to the Commission:286
Governance means rules, processes and behaviour that affect the way in which
powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence.

282
The Future of Health Care and Care for the Elderly: Guaranteeing Accessibility, Quality
and Financial Viability, COM(2001) 723. The Communication proposes three generalised
long-term objectives: ensuring that everyone has access to health care; improving the quality
of health care systems; maintaining the financial stability of care systems.
283
Barcelona European Council Presidency Conclusions, 15/16 Mar 2002, para 32. The
purpose of childcare targets is to remove disincentives for female labour force participation.
The European Council has agreed that Member States should strive to provide childcare by
2010 to at least 90% of children between 3 years old and the mandatory school age and at
least 33% of children under 3 years of age.
284
Framework Strategy on Gender Equality Work Programme for 2001, COM(2001) 119.
See also, the European Parliaments own-initiative report, A5/2001/275.
285
According to the Economic and Social Committee, civil society includes the following:
trade unions and employers organisations (the social partners); non-governmental organisations; professional associations; charities; grass roots organisations; organisations that involve
citizens in local and municipal life with a particular contribution from churches and religious
communities. See the Opinion of the Economic and Social Committee on The Role and Contribution of Civil Society Organisations in the Building of Europe, OJ 1999, C329/30. For
discussion, see K Armstrong, Civil Society and the White PaperBridging or Jumping the
Gaps? in Joerges, n 6 above, Part 10; cf Allott, n 100 above who, at 62, traces the origins of
the term civil society back to writings of Adam Ferguson a leading light of the Scottish
Enlightenment in the 18th Century.
286
European Governance: A White Paper, COM(2001) 428, p 8.

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The European Employment Strategy

Concerns about the way in which the EU exercises its power lie at the heart
of the Commissions White Paper on European Governance.287 In essence, the
theory goes that by laying the foundations of good governance288 through
reaching out to its citizens and involving them in shaping policy, the EU will
reap the benefits in the form of better policies, regulation and delivery. As
Armstrong explains,289 the appeal of the concept of European civil society
lies in the hope that it can provide an intermediating civic sphere to connect
society to transnational governance. In other words, European civil society
can offer an equally important but differentiated voice from the ethnically
national demos290 and may ultimately lead to what Preu describes as a
societas civilis sive politica, ie a civil society beyond the physical boundaries
of the nation-states.291 This can also be seen as a response to the growth of
increasingly effective transnational protest movements seeking to roll back
or restrain globalisation. The Commissions hope is that citizens will increasingly grow to accept the EU rather than protest against it.292 For some critics,
writing from the perspective of liberal democracy, such notions are extremely
dangerous and anti-democratic because they separate the people from their
government.293 In effect what is being contemplated is, to apply Streecks
apposite term, neo-voluntarism,294 a process through which the EU is filtering decision-making through civil society by using the concept of partnership to secure consensus or a plurality of support for, and ownership of, its
objectives at the grass roots.
In the White Paper, the Commission is mainly concerned with facilitating the development of a structured European civil society by helping to
foster a reinforced culture of consultation and dialogue, in which the
European Parliament will play a prominent role.295 Suggestions include: a
code of conduct setting minimum standards on what to consult on, when,
whom and how to consult; and partnership arrangements with organisations in civil society who will have be more extensively consulted.296 In
return, the selected organisations would be expected to tighten up their
287
European Governance: A White Paper, COM(2001) 428, p 3. For an excellent set of
critical contributions, see Joerges et al, n 6 above.
288
Ibid p 10. The Commission identifies five principles that underpin good governance:
openness, participation, accountability, effectiveness and coherence.
289
Armstrong, n 285 above at 3.
290
See J Weiler, Epilogue: The European Courts of Justice: Beyond Beyond Doctrine or
the Legitimacy Crisis of European Constitutionalism in A-M Slaughter, A Stone Sweet and
J Weiler (eds) The European Courts and National Courts: Doctrine and Jurisprudence (Hart,
Oxford 1998) 36591 at 384.
291
See U Preu, Problems of a Concept of European Citizenship (1995) 1 European Law
Journal 267.
292
Ibid at 7.
293
See Allott, n 100 above at 60.
294
W Streeck, Neo-Voluntarism: A New European Social Policy Regime? (1995) 1
European Law Journal 31 at 52.
295
COM(2001) 428, p 16.
296
Ibid.

The Social Policy Agenda 503

internal structures, furnish guarantees of openness and representativeness,
and prove their capacity to relay information or lead debates in the Member
States.297 The main problem with this approach is that it ignores the multilevel and multi-dimensional nature of civil society and focuses narrowly on
managing existing relationships.298 The Commission is offering different
levels of involvement, or at the most consultation by way of partnership
arrangements, in return for the acceptance of responsibility and imposed
norms of governance.299 In practice, therefore, despite the rhetoric of the
White Paper, the Commission is extremely cautious about opening up discourse and extending genuine and unconditional involvement to a wider
plurality of actors and, therefore, these proposals only scratch at the surface
of the legitimacy crisis.
The EU is on safer ground when dealing with the European social partners.
Indeed, one of the main threads running through the SPA is the need for the
social partners to play a pro-active role in anticipating and managing change
and adapting to the new working environment.300 According to the
Commission and the European Council,301 the best way to manage corporate change and, if necessary, restructuring, which is regarded as essential for
modernisation, is through dialogue in order to anticipate the need to change,
take preventative action and find solutions that are consistent with the pillars
of employability and adaptability. The general framework Directive for
informing and consulting employees302 will be of critical importance in this
respect but there are several other strands of this policy. For example, there
is an explicit link here with the notion of quality in industrial relations. In the
SPA the Commission proposed to consult the social partners on, first, modernising and improving employment relations and, second, on the need to
establish, at European level, voluntary mechanisms on mediation, arbitration
and conciliation for conflict resolution.303 This consultation has been taking
place in parallel with the establishment of a European Monitoring Centre on
Change and the convening of a High-Level Group on industrial relations and
managing change, which is paying specific attention to the issue of industrial
relations in an enlarged Union.304 Further input into policy development
arises at an annual Social Summit, which is convened by the Commission
on the eve of each spring European Council.305
297

Ibid.
Armstrong, n 285 above at 7.
299
Ibid at 79.
300
COM(2000) 379, p 17.
301
See the Barcelona European Council Presidency Conclusions, para 22.
302
Dir 2002/14/EC, OJ 2002, L80/29.
303
COM(2000) 379, p 17.
304
See the 2002 Scoreboard, COM(2002) 89, p 14.
305
See Social Summit: Commission calls on social partners to play their full part in
the Lisbon strategy, European Commission, 14 Mar 2002: <http://europa.eu.int/comm/
employment_social/news/>.
298

504 The European Employment Strategy

Within the context of the EES, the social partners were initially invited
to negotiate agreements to modernise the organisation of work under the
adaptability pillar of the employment guidelines.306 The involvement of the
social partners in the process was further reinforced when, in June 2000,
the European Council invited them to play a more prominent role in defining, implementing and evaluating the employment guidelines, focusing particularly on modernising work organisation, lifelong learning and increasing
the employment rate, particularly for women.307 Partnership now features
as Horizontal Objective D, which includes the following statement:308
Within the overall framework and objectives set by these guidelines, the social partners are invited to develop, in accordance with their national traditions and practices, their own process of implementing the guidelines for which they have the key
responsibility, identify the issues upon which they will negotiate and report regularly on progress, in the context of the national action plans if desired, as well as
the impact of their actions on employment and labour market functioning. The
social partners at European level are invited to define their own contribution and
to monitor, encourage and support efforts undertaken at national level.

As Goetschy309 notes, the social partners are expected to create a process

within a process, in effect their own sphere of action. Thus, within the
adaptability pillar, the social partners are given sole responsibility for
the guidelines concerning modernising work organisation,310 and supporting adaptability in enterprises as a component of lifelong learning.311 In relation to the latter, the social partners are invited to conclude agreements that
will facilitate adaptability and innovation. However, in the area of modernising work organisation, delegation to the social partners is more substantial. The social partners are invited to negotiate and implement
agreements on such matters as, inter alia, new technologies, new forms of
work, the reduction of working hours and overtime, the development
of part-time working and access to career breaks. In return, for reasons of
accountability, they must report annually on which aspects of modernising
work organisation have been covered by the negotiations as well as the
status of their implementation and the impact on employment and labour
market functioning.
Goetschy suggests a number of possibilities arising from the strengthening of the social dialogue within the EES.312 First, social partners at
306
Modernising the Organisation of Work, COM(98) 592, p 4. This proposal was incorporated as Guideline 16 in the 1999 Employment Guidelines.
307
Santa Maria da Feira European Council Presidency Conclusions, 19/20 June 2000, para
34.
308
Decision 2002/177/EC, OJ 2002, L60/1. Originally introduced as Horizontal Objective
C in the 2001 Employment Guidelines.
309
Goetschy (2001, Industrial Relations Journal) n 10 above at 408.
310
Guideline 13.
311
Guideline 15.
312
Goetschy (2001, Industrial Relations Journal) n 10 above at 409.

The Same Resolve to Converge?

505

European and national levels could decide on areas suitable for benchmarking and define their own criteria. Secondly, actions under the guidelines may lead to sectoral or cross-industry agreements, which may tie in
with areas of negotiation under the Social Chapter. Thirdly, the social partners may seek to elaborate new guidelines of their own which may be
adopted by the Council. Fourth, the European social partners can actively
monitor the participation of their national affiliates in the drawing up and
implementation of NAPs and promoting ideas such as social pacts.313
In chapter 6, the issue of the representativeness and democratic legitimacy of the social partners was discussed in the context of their role in the
legislative process under the provisions in the Social Chapter.314 A number
of problems were identified including lack of accountability, litism and
levels of representation in the workplace. Moreover, the involvement of the
social partners in the legislative process undermines the institutional role of
the European Parliament. Indeed, the further expansion of the role of the
social partners into the sphere of the Employment Title might be regarded
as a form of neo-syndicalism in which the power of the state is gradually
replaced by the social power of corporate entities.315 In the context of the
adaptability pillar of the employment guidelines, however, and specifically
in the area of modernisation of work, the role of the social partners is much
more clearly defined and relevant. The social partners are the principal
stakeholders who will be most directly affected by changes in the organisation of work and who are most likely to have practical solutions for
managing change. Further, the requirement for an annual report, which is
not contained in the Social Chapter, strengthens the accountability and
transparency of the process, consistent with the notion of good governance
in the White Paper.

IV THE SAME RESOLVE TO CONVERGE?

From the above analysis it is far from clear that the legislative and nonlegislative techniques available to the EU, particularly the OMC, are robust
enough to successfully Europeanise social policy and deliver a revamped
European social model based on the concept of quality. The partnership principle holds the prospect of a more imagining and responsive
form of EU governance316 but, in its present inchoate state, there is a danger
that the OMC and other forms of co-operation will reinforce a trend
towards minimum government and deregulation.317 In the Governance
313
314
315
316
317

See further, Rhodes, n 124 above.

Arts 138 and 139 EC.
See Allott, n 100 above at 64.
See Scott, n 101 above at 176.
Ibid.

506 The European Employment Strategy

White Paper the Commission propose that more use should be made of
primary legislation limited to essential elementsbasic rights and obligations and conditions to implement them.318 The European Parliament, in
a generally favourable response to the SPA, warned that in seeking to apply
all existing means the Union should not lose sight of that fact that binding
legislation:319
. . . will often be the most effective tool in the Unions areas of competence because
it guarantees enjoyment of social rights, aims to establish minimum social standards
at Community level and at the same time maintains democratic parliamentary influence and judicial control over the Unions decisions.

Undoubtedly, Community legislation will often be the most effective

method of giving substance to an evolving conception of European fundamental social rights for individuals. All too often, however, there is confusion between ends and means.320 Invariably, whenever social legislation is
adopted at Community level, the completion of the process is hailed as a
great victory, not least for the EU institutions, but the benefits for individuals may be less tangible. Soft law has many advantages over hard law, not
only because it is easier to achieve,321 but also, where it is targeted at combating disadvantage or improving societal outcomes, it may offer, or lead
to, more coherent and effective long-term solutions to intractable problems,
irrespective of whether the area of policy in question is one of Community
or national competence. Potentially the OMC can serve as an instrument
for strengthening integration while allowing for a diverse range of localised
responses to globalisation.322
In seeking to develop the OMC, the challenges for the EU are fourfold.
First, the methodology of the OMC, particularly data collection and benchmarking, has to be strengthened and applied more systematically. Secondly,
greater emphasis needs to be placed on delivering the qualitative aspects
of the SPA. Thirdly, ways and means must be found to address the participation deficit by including stakeholders in the process of defining, implementing and reporting under the OMC in order to enhance its legitimacy.
Fourthly, more attention should be given to compliance with recommendations or other forms of guidance and developing a system by which individual Member States and the European Council can be made more
accountable for their actions.
318

COM(2001) 428, p 20.

See A5-O291/2000. For further discussion, see Syrpis, n 203 above at 28081.
For a classic exposition of this argument, see CAR Crosland, The Future of Socialism,
Revised edn (Jonathan Cape, London, 1964) pp 647.
321
See K Abbott and D Snidal, Hard and Soft Law in International Governance (2000)
54 International Organization 421 at 423.
322
See S Sciarra, Global or Re-nationalised? Past and Future of European Labour Law in
F Snyder (ed) The Europeanisation of Law: The Legal Effects of European Integration (Hart,
Oxford, 2000) 26991 at 28083.
319
320

The Same Resolve to Converge?

507

Is the maturing EES capable of meeting these challenges? The 2002

employment package offers mixed messages.323 According to data presented to the Barcelona European Council, the employment rate in the EU
reached 64 per cent in 2001,324 within a whisker of the Commissions midterm projection of 1997. If the present rate of growth continues the target
employment rate of 67 per cent by 2005 is attainable, although the attacks
on the US on 11 September 2001 will undoubtedly have serious direct and
indirect economic and social consequences.325 The apparent success of the
EES in terms of employment growth, which may be largely accounted for
by benign economic circumstances and the activities of the markets, belies
the fact that the relative performance of the Member States has been
extremely variable and only very limited progress has been made in the
direction of promoting quality in work.
Underneath the surface, however, the performance of individual Member
States is far from satisfactory. The Commissions detailed assessment of the
implementation of the 2001 Employment Guidelines reveals that most
Member States have failed to set overall or specific national employment
targets,326 an option suggested in Horizontal Objective A of the Employment Guidelines.327 One group of Member States have already reached, or
are very close to reaching, the employment target and have set ambitious
national targets.328 Another group have comparatively low overall employment rates, in some cases below 60 per cent and have failed to set
comprehensive national targets.329 In the 2002 Recommendation on the
implementation of Member States employment policies,330 the main
emphasis is on structural problems that stand in the way of Member States
in the second group achieving the target employment rates. While the individual recommendations touch upon quality issues concerning adaptability
and equal opportunities, particularly the importance of lifelong learning,
the focus is on employability (incentives to work) and entrepreneurship
(incentives to create jobs).
Whereas most Member States have made some progress towards meeting
the quantitative targets and have sought to respond to the individual
323

Adopted by the Council on 3 Dec 2001. See COM(2002) 89, p 7.

COM(2002) 14, p 8. For detailed statistics, see the draft joint employment report for
2001, COM(2001) 438.
325
COM(2002) 14, p 5.
326
SEC(2001) 1398.
327
Decision 2001/63/EC, OJ 2001, L22/18, Annex.
328
SEC(2001) 1398, pp 78. Member States in this group are: Austria, Denmark, Sweden,
Finland, the Netherlands, Portugal, and the UK. Only Denmark, the Netherlands, Sweden,
and the UK exceed the 2010 target for overall employment and womens employment.
Denmark is the top performer with 76.3% overall and 71.6% among women.
329
Ibid. This group includes: Belgium, France, Greece, Ireland, Italy, Spain, Germany, and
Luxembourg. Italy has the lowest participation rates of 53.5% overall and 39.6% among
women.
330
Decision 2002/178/EC, OJ 2002, L60/70.
324

508

The European Employment Strategy

recommendations, the Commission note that the majority have not engaged
with the idea of quality.331 Where quality is addressed in the NAPs, it tends
to be linked to labour supply rather than quality in work.332 Member States
have placed the most emphasis on the employability and entrepreneurship
pillars in the NAPs, which is hardly surprising in the light of the bias in the
recommendations.333 Some progress has been made in developing indicators and benchmarks at local level and involving the social partners in the
process.334 At this stage, however, there is little evidence to indicate that the
introduction of quality and partnership as horizontal objectives will have a
significant impact on the next round of NAPs.
Over time, the introduction of the horizontal objectives may help to
redirect the EES towards the quality issues highlighted in the SPA but
the signs are not encouraging. The Commissions preparatory report for
the Barcelona European Council highlights a delivery gap across the
board with specific reference to the mainly quantitative best performance
indicators.335 In response, the Council has proposed a simplification, but
not watering down, of the process and, in particular, fewer employment
guidelines.336
In conclusion, the SPA has at last provided EU social policy with a rationale337 30 years on from the Paris declaration that economic expansion is
not an end in itself.338 After Lisbon, economic strength and rising social
standards are regarded as indissoluble. It follows that fundamental social
rights and values can be asserted both as a justification for autonomous
action under the Social Chapter and as a foundation for a reoriented
European social model. We can also see that globalisation begets a process
of Europeanisation that carries with it opportunities to manage and shape
change at the level of the individual, while Member States retain responsibility for preserving and reinforcing the essential values of social solidarity.
Nevertheless, prospects for a fusion of the economic and the social will
depend upon an equal pull of compliance. At Barcelona the Member States
determined to synchronise the two sets of guidelines,339 once again exhibiting the same resolve to converge. However, such integrationist rhetoric
will lack conviction so long as the employment guidelines remain formally
subordinate to the economic guidelines and while the recommendations to
individual Member States are not backed up with sanctions. While this
imbalance persists, social policy responses will continue to be driven by the
331
332
333
334
335
336
337
338
339

SEC(2001) 1398, p 6.
Ibid p 9.
Ibid p 6.
Ibid.
COM(2002) 14, pp 59.
Barcelona European Council Presidency Conclusions, Part II, p 14.
See Szyszczak (2001, Common Market Law Review) n 7 above at 1126.
Oct 1972. See Bulletin of the European Communities Supplement 2/74, p 14.
Barcelona European Council Presidency Conclusions, Part II, p 14.

The Same Resolve to Converge?

509

strict budgetary discipline of the Stability and Growth Pact. Moreover, the
dextrous language of modernisation, employability, adaptability, and
flexibility remains highly contested. In this climate of uncertainty there is
a danger that tensions within the employment guidelines will be exacerbated, leading perhaps to more jobs at the expense of better jobs,340 flexibility before security, and social exclusion rather than inclusion. Two
possible scenarios can be contemplated. One possibility is that targeted
hard law within the Community sphere, supplemented by the OMC, cooperation, and bottom-up partnership in the national sphere, can improve
the prospects for delivery of high quality social policies. Another possibility is that sophisticated, often technocratic, forms of soft law such as the
OMC, although presented as a more legitimate and inclusive alternative
to the flawed Community method, may be used as a smokescreen behind
which the welfare state can be dismantled.341 Such is the fluidity of these
reflexive, self-regulatory processes342 that each of these scenarios is perfectly
valid. It is precisely for this reason that individuals require a visible EU
guarantee of fundamental social rights to cement in place the new consensus on social policy.343
340

See Ball, n 36 above at 367.

For a helpful analysis of the arguments, see Trubek and Mosher, n 6 above at 3.
342
See I-J Sand, Understanding the New Forms of Governance: Mutually Interdependent,
Reflexive, Destabilised and Competing Institutions (1998) 4 European Law Journal 271 at
272.
343
See C Barnard and S Deakin, Social Policy in Search of a Role: Integration, Cohesion
and Citizenship in A Caiger and D Floudas (eds) 1996 Onwards: Lowering the Barriers
Further (Wiley, Chichester, 1996) 17795 at 195.
341

12
The EU Charter of Fundamental
RightsTowards a European Social
Constitution?
I INTRODUCTION

UROPES ECONOMIC CONSTITUTION1 has been painstakingly constructed over a 50-year period. Economic freedoms and
market integration form its predominant rationale. Until recently
employment and social policies have been advanced as a function of the
economic integration process rather than an independent aspiration. The
significance of the Social Policy Agenda2 lies with the fact that it subverts
the liberal economic paradigm by positing employment and social policies
based on the quality of work as intrinsic elements of the efficient process
of market functioning. Nonetheless, at its core, the EU still lacks a social
constitution. Indeed, what is often portrayed as Europes social deficit3 will
persist so long as the notion of EU citizenship is located within the domain
of economic freedoms rather than social values such as solidarity and participation. The high level proclamation of the EU Charter of Fundamental
Rights4 marks a symbolic attempt to place indivisible rightscivil,
1
See M Streit and W Mussler, The Economic Constitution of the European Community:
From Rome to Maastricht (1995) 1 European Law Journal 5; C Joerges, European
Economic Law, the Nation-State and the Maastricht Treaty in R Dehousse (ed) Europe After
Maastricht: An Ever Closer Union? (Law Books in Europe, Munich, 1994) 2962; N Walker,
European Constitutionalism and European Integration [1996] Public Law 266; and M
Poiares Maduro, We the Court: The European Court of Justice and the European Economic
Constitution (Hart, Oxford, 1998).
2
COM(2000) 379, approved at the Nice European Council, 7/9 Dec 2000, Presidency Conclusions, Annex I. Discussed in ch 11.
3
See M Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and
Social Rights in the EU in P Alston (ed) The EU and Human Rights (OUP, Oxford, 1999)
44972; and P Davies, Market Integration and Social Policy in the Court of Justice (1995)
24 Industrial Law Journal 49.
4
The Charter was issued as a solemn proclamation by the European Parliament, the
Council and the Commission on 7 Dec 2000. For the full text, see OJ 2000, C364/1. For
essential explanatory documentation, see the Charter website at:
<http://europa.eu.int/comm/justice_home/unit/charte/index_en.html>.

512

The EU Charter of Fundamental Rights

political, economic and socialat the centre of the EUs enterprise and,
despite its non-binding status, may yet act as a portent for the emergence
of a European social constitution based on a foundation of shared social
values.
In this final chapter we will explore the potential of the Charter as a tool
for constitutionalising fundamental social values within the EU legal order.
In the first part the origins of the Charter will be traced before proceeding
to consider several inter-related questions in the remaining sections. What
is the substance of the fundamental social rights, freedoms and principles
that form the Charters common values?5 What is its legal scope? Finally,
in the light of the post-Nice agenda6 of constitutional reflection,7 to what
extent does the Charter offer a new framework for the development of
justiciable social rights and recognition of basic social entitlements for
European citizens?
II THE ORIGINS OF THE CHARTER

The lineage of the social elements of the Charter can be traced back to the
Tindemans Report of 19758 and an attempt in the 1980s by the Economic
and Social Committee to draw up a catalogue of inalienable basic social
rights derived from the Treaties and international law. Significantly,
the Committees aim was to remind the Community institutions and the
Member States of existing social rights and not to draw up a separate Social
Charter.9 Nevertheless, the Commission proceeded with its own proposal
for a Community Social Charter that, although adopted only as a nonbinding solemn declaration by a majority of Member States,10 has been a
catalyst for legislative and programmatic action at Community and national
levels.11 The Social Charter seeks to persuade Member States to guarantee
fundamental social rights for workers but as we discussed in Chapter 4,
all references to social citizenship were deleted from the final text. Europes
social identity wasand indeed remainshighly contested12 and the time
5

First recital of the preamble.

See especially, J Shaw, The Treaty of Nice: Legal and Constitutional Implications (2001)
7 European Public Law 195 at 21113.
7
See K Lenaerts and E De Smijter, A Bill of Rights for the European Union (2001) 38
Common Market Law Review 273 at 299.
8
COM(75) 481.
9
Doc CES 270/89.
10
At the Strasbourg European Council, Dec 1989. The text of the Charter is reproduced
in Social Europe 1/90, pp 4650.
11
By early 2001 there were 43 references to the Social Charter in Community legislation.
See further, L Betten, The EU Charter on Fundamental Rights: a Trojan Horse or a Mouse?
(2001) 17 International Journal of Comparative Labour Law and Industrial Relations 151 at
158.
12
See M Poiares Maduro, Europes Social Self: The Sickness Unto Death in J Shaw (ed)
Social Law and Policy in an Evolving European Union (Hart, Oxford, 2000) 32549 at 326.
6

The Origins of the Charter 513

was not yet ripe for a broad inclusive vision of social citizenship within
a European integration project that lacked a human rights foundation.
However, in the wake of the post-Maastricht legitimacy crisis, issues of
citizenship, social solidarity and fundamental rights were swiftly brought
to the fore.
The immediate process leading to the Charter stemmed from the March
1996 report of an ad hoc Comit des Sages.13 Significantly, the authors
of the report sought to end the tradition schism14 between civil and political rights, on the one hand, and economic and social rights, on the other,
by proposing a bill of rights encompassing indivisible civic and social
rights to be incorporated into the Amsterdam Treaty. The objective was to
render the embryonic concept of EU citizenship meaningful in the eyes of
the people of Europe. In the event, the revised EC Treaty left the limited
EU citizenship provisions unchanged and contained only a small nod in
the direction of social rights. Article 136 [ex 117] EC proclaims that the
Community and the Member States shall have in mind fundamental social
rights, such as those set out in the ESC and the Community Social Charter,
when pursuing their social policy objectives. In itself, however, this generalised commitment does not form a basis for establishing justiciable social
rights.
In the aftermath of the Amsterdam Treaty the Commission sought to
rekindle the flame ignited by the Comit. The Social Affairs Directorate
appointed a group of legal experts who published a report on affirming fundamental rights in the European Union.15 The experts called for recognition of both economic and social rights contained in the ECHR, the ESC
and ILO conventions, and concluded that all rights should be set out in a
single text to be inserted into the Treaties.16 The timing of the experts report
was propitious. 1998 marked the fiftieth anniversary of the Universal
Declaration of Human Rights17 an event heralded by a range of activities,18
including a separate Commission report calling for, inter alia, the establishment of a centre for monitoring human rights based on the model of
the Racism Monitoring Centre.19 Moreover, the adoption of the Revised
13

For a Europe of Civic and Social Rights (European Communities, Luxembourg, 1996).
See M Gijzen, The Charter: A Milestone for Social Protection in Europe? (2001) 8
Maastricht Journal 33 at 35.
15
Affirming Fundamental Rights in the European Union Time to Act (European Commission, Brussels, 1999). Available at:
<http://europa.eu.int/comm/justice_home/unit/charte/index_en.html>.
16
Ibid p 17.
17
GA Res 217A (III) 10 Dec 1948.
18
See G de Brca, The Drafting of the European Union Charter of Fundamental Rights
(2001) 26 European Law Review 126.
19
Leading by Example: A Human Rights Agenda for the European Union for the Year
2000 (EUI, Florence, 2000). For an adapted version, see P Alston and J Weiler, An Ever
Closer Union in Need of a Human Rights Policy: The European Union and Human Rights
in Alston, n 3 above, 366.
14

514

The EU Charter of Fundamental Rights

ESC in 1996,20 and the launch of the ILOs Declaration on Fundamental

Principles and Rights at Work in 1998,21 increased the visibility of fundamental social rights on the international stage. At Cologne, in June 1999,
the European Council finally accepted responsibility to act by declaring
that:22
Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for her legitimacy. The obligation of the Union to respect
fundamental rights has been confirmed and defined by the jurisprudence of the European Court of Justice. There appears to be a need, at the present stage of the Unions
development, to establish a Charter of fundamental rights in order to make their
overriding importance and relevance more visible to the Unions citizens.

Once again the Union was deploying the language of rights for the twin
purposes of legitimation and integration.23 The European Council added
substance to its rhetoric by referring both to the ECHR and the common
constitutional traditions of the Member States, and also to the citizens
guarantee of economic and social rights in Article 136 [ex 117] EC derived
from the Community Social Charter and the ESC.24 This declaration was
significant not only because of the expressed desire to deepen the culture
of fundamental rights in the EU, but also as a bold attempt to place classic
civil liberties and core social rights on an equal footing. However, from the
outset, there was an underlying ambiguity behind the whole exercise. The
idea of the Charter was seen as an alternative to Community accession to
the ECHR25 or incorporation of the ESC.26 Moreover, in a barely concealed
compromise, the European Council indicated that, when the Charter was
eventually adopted, it would be in the form of a non-binding political
declaration and it will then have be considered whether and, if so, how the
20
The Revised ESC entered into force in July 1999. For discussion, see N Casey, The
European Social Charter and Revised European Social Charter in C Costello (ed) Fundamental
Social Rights: Current Legal Protection and the Challenge of the EU Charter of Fundamental Rights (Irish Centre for European Law, Dublin, 2001) 5575.
21
Available at: <www.ilo.org>. For discussion, see J Bellace, The ILO Declaration of Fundamental Principles and Rights at Work (2001) 17 International Journal of Comparative
Labour Law and Industrial Relations 269.
22
Presidency Conclusions, 34 June 1999, Annex IV, para 1. Emphasis added.
23
For a prescient analysis, see G de Brca, The Language of Rights and European
Integration in J Shaw and G More, New Legal Dynamics of European Union (Clarendon
Press, Oxford, 1995) 2954 at 3943.
24
Cologne Presidency Conclusions, para 2.
25
In Opinion 2/94 [1996] ECR I1759, the Court ruled, on the basis of the principle of
conferred powers in the first paragraph of Art 5 [ex 3b] EC, that the Community had no competence to accede to the ECHR, as human rights were not included among the Communitys
objectives in Art 2 EC. For discussion, see The Human Rights Opinion of the ECJ and
its Constitutional Implications (CELS Occasional Paper No 1, Cambridge, 1996); G Gaja,
Opinion 2/94, Accession by the Communities to the European Convention for the Protection
of Human Rights and Fundamental Freedoms (1996) 33 Common Market Law Review 973;
and L Betten and N Grief, EU Law and Human Rights (Longman, Harlow, 1998) pp 11123.
26
For discussion of this option, see ch 4.

The Origins of the Charter 515

Charter should be integrated into the treaties.27 Hence, on the one hand,
the European Council wished to keep alive the pretence of a legally binding
Charter as a token gesture to the minority of Member States that might
support such a move,28 while, on the other hand, the driving purpose behind
the initiative was to offer a visible declaration of the EUs existing commitments directed, as de Brca observes, not at lawyers or politicians but
the ordinary citizen to help to secure a degree of popular legitimacy for a
political entity which continues to be contested and questioned.29
In order to furnish the Charter with legitimacy, the European Council
constituted a novel EU body composed of representatives of the Governments, the Commission, the European Parliament and national parliaments.30 The body, which renamed itself the Convention, was established
outside the Treaties and signified a new form of constitution building
in Europe.31 The Convention consulted widely and set up working parties.
Representatives of the Court of Justice and the European Court of Human
Rights sat as observers and a wide variety of expert groups were invited to
submit their opinions. The Convention established a powerful inner core
group, the grandiloquently titled Praesidium, to work through the detailed
text and produce drafts. The idea was to have the widest possible exchange
of views and maximum transparency. Indeed the Conventions inclusiveness
was intended to mark a fresh approach, running counter to the exclusiveness and opacity of the traditional IGC process, which was running in parallel.32 As a decision-making body, however, the Convention was criticised
for lacking a formal mechanism for the participation of civil society in its
work, except through hearings and the involvement of parliamentary representatives.33 Nevertheless it represented an open, inherently flexible and
more inclusive forum for constitutional development in the EU.
While the structure and working methods of the Convention were innovative, its work was hampered by a fundamental difference of perception
among the participants that reflected the contradictions and ambiguities of
the whole project.34 According to Lord Goldsmith, the UK Governments

27

Cologne Presidency Conclusions, para 4.

As an indication, in Opinion 2/94, the compatibility of accession to the ECHR was
broadly supported by eight Member States (Austria, Belgium, Denmark, Finland, Germany,
Greece, Italy and Sweden) and opposed by five (France, Ireland, Portugal, Spain and the UK).
29
See de Brca (2001, European Law Review) n 18 above at 130.
30
The formal representation was: Member State governments (15); European Commission
(1); European Parliament (16); national parliaments (30). Therefore parliamentary representatives were in a clear majority with 46 out of a total of 62 seats. For the details, see the
Tampere European Council Presidency Conclusions, 1516 Oct 1999, Annex.
31
See de Brca (2001, European Law Review) n 18 above at 126.
32
Ibid at 132.
33
See T Eicke, European Charter of Fundamental RightsUnique Opportunity or Unwelcome Distraction [2000] European Human Rights Law Review 280 at 281.
34
See de Brca (2001, European Law Review) n 18 above at 128.
28

516

The EU Charter of Fundamental Rights

representative, the discussions were not about minting new rights but
rather an exercise in increasing the visibility of existing rights.35 Many
NGOs sought to use the Convention as a platform to argue for new rights
not yet firmly established at international level and were, not surprisingly,
disappointed.36 Moreover, shortly after the first draft of the Charter was
published in July 2000,37 it became abundantly clear that the final text
would be issued in the form of a non-binding political declaration and
the question of legal force would be deferred to a later date.38 In order to
breathe fresh life into the process, and unite the disparate members of the
Convention around a common objective, the President, Roman Herzog,39
successfully recommended that the Charter should be drafted as if it had
mandatory legal force.40 The Convention wished to send a clear signal to
the outside world that the European Union must not be any less bound to
its citizens than are the Member States under their own constitutional
laws.41 This led to a period of intensive negotiations before publication
of the final text in October 2000.42 In a remarkably smooth process the
Charter was endorsed at political level at a meeting of Union leaders in
Biarritz43 before its adoption at Nice on 7 December 2000.
The publication of the Charter as a solemn proclamation of the
European Parliament, the Council and the Commission was intended to
send a message of unity of purpose as a prelude to a decisive act of constitution building at the Nice IGC in preparation for the enlargement of the
Union to include the countries of central and eastern Europe, the Baltic
region and the eastern Mediterranean.44 In the event any feelings of optimism associated with the proclamation of the Charter were swiftly dispelled
35
See Lord Goldsmith, A Charter of Rights, Freedoms and Principles (2001) 38 Common
Market Law Review 1201 at 1207.
36
Ibid.
37
CHARTE 4422/00, CONVENT 45. An online version can be found at:
<http://www.eiro.eurofound.ie/2000/08/Features/eu0008268f.html>.
38
Both the Commission and the European Parliament advocated the case for the Charter
to become legally binding. See COM(2000) 644, para 11, and European Parliament resolutions A50064/2000, especially points 7(a) (f) and (g) and B5767/2000. See also, Economic
and Social Committee Resolution 105/2000 and Committee of the Regions Resolution
140/2000.
39
Formerly President of Germany.
40
See COM(2000) 559 final, para 3.
41
Doc CHARTE 4105/00.
42
CHARTE 4487/00, CONVENT 50. For the text with explanatory notes produced by the
Praesidium, see CHARTE 4473/00, CONVENT 49. Regrettably the version in the Official
Journal does not include the explanatory note even though it is indispensable. See further, D
Curtin and R van Ooik, The Sting is Always in the Tail: The Personal Scope of Application
of the EU Charter of Fundamental Rights (2001) 8 Maastricht Journal 102 at 103.
43
13/14 Oct 2000. This was not a formal European Council meeting. A summary of the
proceedings can be found at: <http://www.presidence-europe.fr/pfue/static/acces5.htm>.
44
Following the decision at the Helsinki European Council of Dec 1999 to pursue negotiations with an additional six countries, making a total of 13 possible entrants between 2005
and 2015 including: Czech Republic, Hungary, Poland, Romania, Bulgaria, Slovakia, Slovenia, Estonia, Latvia, Lithuania, Cyprus and Malta. Negotiations with Turkey are on hold.

The Charters Social Rights and Principles 517

by four days of bad-tempered squabbling45 on the French Riviera. The
draft Treaty of Nice46 that emerged is primarily concerned with adapting
the institutional design of the Union.47 The main changes concern the representation of the Member States in the composition and appointment of
the institutions and their operational efficiency in a Europe of 20 or more
countries.48 For the time being, however, the Treaty and the whole process
of enlargement is on hold following a negative vote in the Irish referendum
of 7 June 2001. In the meantime, attention has been focused on a declaration annexed to the draft Treaty, which calls for a deeper and wider debate
on the future of the Union involving wide-ranging discussions with all interested parties including civil society.49 This process should address, inter alia,
the status of the Charter along with other post-Nice issues such as a more
precise delimitation of powers between the EU and the Member States, simplification of the Treaties and a review of the role of national parliaments
in the European architecture.
Following the launch of a Declaration on the Future of the European Union
at the Laeken European Council of December 2001,50 a Convention on the
Future of the European Union has been established closely modelled on
the Convention formed to draft the Charter. The new Convention, chaired by
the former French President, Valery Giscard dEstaing, is due to draw up
recommendations on a possible Constitution of the European Union in
time for a decision to be taken at a further IGC to be held in 2004. In the
meantime the Conventions discussions will be in the public domain and
organisations representing civil society will receive regular information
through a network called the Forum.51 This means that any decision to incorporate the Charter in a new basic treaty, or to accede to the ECHR,52 will
have to be considered as part of a broader constitutional package.53

III THE CHARTERS SOCIAL RIGHTS AND PRINCIPLESTEXT

AND STRUCTURE

The EU Charter of Fundamental Rights is divided up into three discrete

parts: a preamble; the main body consisting of 50 enumerated rights,
45

See Shaw, n 6 above at 195.

OJ 2000, C80/1. The Treaty was formally adopted on 26 Feb 2001.
47
See K St C Bradley, Institutional Design in the Treaty of Nice (2001) 38 Common Market
Law Review 1095.
48
Ibid at 1097.
49
Declaration No 23 annexed to the Final Act of the Conference.
50
Issued on 15 Dec 2001. Available at: <http://europe.eu.int/futurum>.
51
See A Arnull, Editorial: From Opinion 2/94 to the Future of Europe (2002) 27
European Law Review 1 at 2.
52
Laeken Declaration, Part II.
53
See B de Witte, The Legal Status of the Charter: Vital Question or Non-Issue? (2001)
8 Maastricht Journal 81 at 88.
46

518

The EU Charter of Fundamental Rights

freedoms and principles54 set out in six chapters; and a final chapter of
horizontal provisions that define its legal scope and the level of protection
that it offers.
As with the Social Charter, the preamble serves as a point of reference
for the value orientation55 of the document and the aspirations of its signatories. From the outset the authors sought to legitimate the whole enterprise by proclaiming that the peoples of Europe wish to share a peaceful
future based on common values.56 Moreover, just as fundamental rights
are regarded as indispensable for legitimacy,57 the process of European
integrationor ever closer union58is dependent upon the furtherance of
these shared values. In other words, should the Charter be integrated into
the Treaties, its core values, or what Fitzpatrick describes as the apex of the
EU pyramid,59 would be based, for the first time, on fundamental rights.
Next, the central aspirations are presented thus:60
Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based
on the principles of democracy and the rule of law. It places the individual at the
heart of its activities, by establishing the citizenship of the Union and by creating
an area of freedom, security and justice.

This highly nuanced paragraph contains three interlinked strands, each

of which offers a tantalising glimpse of the potential of the Charter if not
the actualit. First, the values espoused in the Charter are declared to be
indivisible, an ambition that is underlined by references to both civil and
political rightshuman dignity, freedom and equalityand social rights
solidarity. Within the EUs conception of fundamental rights, the inclusion of solidarity among the Charters common values has the effect of
elevating social rights to the level of human rights61 and is perhaps the most
important achievement of the Charter in its present form as a political
declaration. The EU institutions, not least the Courts, will be bound to take
note of the central position that social values now occupy when carrying
out their obligations. Therefore, the Charters social values are capable
of having a mainstreaming effect62 for new legislation and programmatic
54

Seventh recital of the preamble.

See M Weiss, The Politics of the EU Charter of Fundamental Rights in B Hepple (ed)
Social and Labour Rights in a Global Context (CUP, Cambridge, 2002, forthcoming).
56
First recital.
57
See A von Bogdandy, The European Union as a Human Rights Organization? Human
Rights and the Core of the European Union (2000) 37 Common Market Law Review 1307
at 1307.
58
First recital.
59
See B Fitzpatrick, Converse Pyramids and the EU Social Constitution in Shaw, n 12
above, 30324.
60
Second recital. Emphasis added.
61
See Gijzen, n 14 above at 42.
62
Ibid.
55

The Charters Social Rights and Principles 519

action, and also serve as a basis for judicial interpretation of EU law within
the scope of application of the Treaties. Secondly, the Charters values are
presented as universal. Most of the enumerated rights are guaranteed to
everyone or every worker.63 Where this is the case, the logic of the principle of universalism suggests that the reach of the Charter must extend to
third-country nationals who are seeking to rely on social rights falling
within the scope of EU law.64 Thirdly, the Charter fills a void, identified previously by OLeary,65 by making an explicit link between fundamental rights
and EU citizenship. Although the citizenship provisions in the Charter
merely restate the acquis,66 the inclusion of solidarity, along with civil and
political rights, offers the prospect of an emerging social conception of citizenship which fits more closely with Marshalls classic definition of citizenship as full membership of a community.67
The remaining recitals reflect the compromises reached by the Convention
in the light of the Cologne mandate and what was likely to be acceptable to
the Member States. First, reference is made to respect for the diversity of the
cultures and traditions of the peoples of Europe as well as the national identities of the Member States.68 In the area of social policy, where the Community defers to diverse forms of national practices,69 this statement provides
a pretext for imposing conditions on the exercise of rights and the recognition of principles. Hence, several of the provisions concerning employment
law and social security rights are conditional upon national laws and practices.70 Secondly, the delicate balance between new rights and making existing rights more visible is reflected by a recital that refers to the need to
strengthen the protection of fundamental rights in the light of changes in
society, social progress and scientific and technological development.71 The
Charter is presented as a living instrument that the Courts can interpret teleologically rather than the regressive creation that Weiler feared.72 Thirdly, the
63
See C Costello, The Legal Status and Legal Effect of the Charter of Fundamental Rights
of the European Union in Costello, n 20 above, 12750 at 144.
64
See Gijzen, n 14 above at 38; and Lenaerts and De Smijter, n 7 above at 278.
65
See generally, S OLeary, The Relationship between Community Citizenship and the
Protection of Fundamental Rights in Community Law (1995) 32 Common Market Law
Review 519.
66
See N Reich, Union CitizenshipMetaphor or Source of Rights? (2001) 7 European
Law Journal 4 at 6.
67
See T Marshall, Citizenship and Social Class and Other Essays (CUP, Cambridge, 1950).
For further discussion, see Reich, ibid.
68
Third recital.
69
Art 136 [ex 117] EC.
70
Art 27 (workers right to information and consultation within the undertaking); Art 28
(right of collective bargaining and action); Art 30 (protection in the event of unjustified dismissal); Art 34 (social security and social assistance); Art 35 (health care); Art 36 (access to
services of general economic interest).
71
Fourth recital.
72
See J Weiler, Editorial: Does the European Union Truly Need a Charter of Rights? (2000)
6 European Law Journal 95 at 96; cf Eicke, n 33 above at 286.

520

The EU Charter of Fundamental Rights

Charter reaffirms rights derived from the common constitutional traditions

of the Member States, the Treaties and international lawincluding the two
Social Chartersbut preserves the powers and tasks of the Community and
the Union in accordance with the principle of subsidiarity.73 In this way the
Charter recognises a wide range of sources of fundamental rights without
transferring any competences from the national to the Union level. Fourthly,
the enjoyment of the rights in the Charter entails unspecified responsibilities
and duties with regard to other persons, the human community and future
generations.74
Finally, the preamble refers to the 50 vertical provisions that follow
as rights, freedoms and principles.75 This phrase suggests a distinction
between specific enforceable rights and general unenforceable principles.76
Goldsmith explains that this formulation was arrived at after a long and
difficult debate.77 As the UK Government representative he argued assiduously, and with some success, for the inclusion of what he describes as a
new concept that the economic and social rights in the Charter are mere
principles that will only be realised as exercisable rights to the extent that
they are implemented by national law or, in those areas where there is such
competence, by Community law.78 In essence, Goldsmith argues that economic and social rights are different and, by implication, inferior to civil
and political rights because they are usually not justiciable and are recognised and given effect to in different ways in the Member States who have
primary competence in most of these areas.79 Goldsmiths contention strikes
at the heart of the notion of indivisibility of rights. It is based on an assumption that economic and social rights, such as those contained in the ESC,80
or the UN International Covenant on Economic, Social and Cultural
Rights81 are less important because they are not subject to judicial oversight. In fact, both the Council of Europe82 and the UN83 have introduced
73

Fifth recital.
Sixth recital.
75
Seventh recital.
76
See A Heringa and L Verhey, The EU Charter: Text and Structure (2001) 8 Maastricht
Journal 11 at 14.
77
Goldsmith, n 35 above at 1212.
78
Ibid at 1213.
79
Ibid at 1212.
80
For a summary of the social rights contained in the ESC and Revised ESC, see ch 4,
pp 1123.
81
999 UNTS No 3. See also, the UN International Covenant on Civil and Political Rights,
999 UNTS No 171. Both Covenants were adopted in 1966.
82
Following the 1991 Amending Protocol of the ESC, a more effective European Committee of Social Rights has replaced the Committee of Independent Experts. See further, Casey, n
20 above; and T Novitz, Remedies for Violation of Social Rights within the Council of Europe
in C Kilpatrick, T Novitz and P Skidmore (eds) The Future of Remedies in Europe (Hart,
Oxford, 2000) 23151.
83
The UN Committee on Economic, Social and Cultural Rights. See further, M Craven, A
View from Elsewhere: Social Rights, the International Covenant and the EU Charter of Fundamental Rights in Costello, n 20 above, 7793 at 87.
74

The Charters Social Rights and Principles 521

increasingly sophisticated supervisory committees that have developed an
impressive body of legal assessments on the interpretation of these instruments. Further, Member States retain primary competence in many of the
areas included among the civil and political rights in the Charter but this
does not prevent them from being recognised as fundamental rights. Goldsmiths distinctive conception of rights and principles is not referred to
in the explanatory text issued by the Praesidium. Moreover, he was not
entirely successful. Eventually, after lengthy negotiations, the Chapter on
Solidarity emerged as a mix of clear individual rights, guiding principles
that the EU recognises and respects, and pure objectives.84 As we shall see,
this compromise creates particular difficulties of interpretation and leaves
a question mark over the status of social rights within the Charters construct of fundamental rights.
The Charters substantive rights are set out in six chapters headed:
Dignity; Freedoms; Equality; Solidarity; Citizens Rights and Justice. The
rights and principles of most relevance to EU employment and social law
are found mainly, but not exclusively, in the chapter on Solidarity. In this
section the main provisions will be presented, and briefly developed, before
analysis, in the next section, of their legal scope and effectiveness as determined by the horizontal clauses in Articles 5154.
Included within chapter I on Dignity we can find rights to human
dignity,85 to the integrity of the person,86 and the prohibition of slavery and
forced labour.87 Article 1 declares that: Human dignity is inviolable. It must
be respected and protected. The dignity of the human person occupies the
pole position because it is not only a fundamental right in itself but constitutes the real basis of each of the substantive fundamental rights laid
down in the Charter.88 Therefore, consistent with the Courts interpretation
of fundamental rights in P v S,89 human dignity is an integral part of the
principle of non-discrimination, which is contained in Article 21. Furthermore, Article 31(2) grants workers the right to working conditions that
respect their health, safety and dignity. The source of this provision is
84
See B Hepple, The EU Charter of Fundamental Rights (2001) 30 Industrial Law Journal
225 at 228.
85
This is drawn from the preamble of the 1948 Universal Declaration of Fundamental
Rights where it is declared that: Whereas recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family is the foundation of freedom, justice
and peace in the world. It follows that the Charter must not be used to harm the dignity of
another person and that the dignity of the human person is part of the substance of the rights
laid down in the Charter (see CHARTE 4473/00, CONVENT 49, p 3).
86
Art 3.
87
Art 5.
88
See the explanatory note, CHARTE 4473/00, CONVENT 49, p 3.
89
See Case C13/94, P v S and Cornwall CC [1996] ECR I2143, para 22, where the Court
held that: To tolerate [discrimination against transsexuals] would be tantamount, as regards
such a person, to a failure to respect the dignity and freedom to which he or she is entitled,
and which the Court has a duty to safeguard.

522 The EU Charter of Fundamental Rights

Article 26 of the Revised ESC, which refers to the obligation on the parties
to promote awareness, information and prevention of sexual harassment in
relation to work and the need to take appropriate measures to protect
workers from such conduct.90 This provides a platform for advancing
legislation and programmatic action under Articles 13 and 141(3) [ex 119]
EC.91
Furthermore, Article 5(2) on the prohibition of forced or compulsory
labour, although explicitly derived from Article 4(2) ECHR,92 owes its
origins to the long-established principle that labour is not a commodity.93
Hence, Article 5(2) reinforces the Courts finding in Katsikas94 that, under
the Acquired Rights Directive,95 an employee cannot be compelled to
continue in an employment relationship with an employer because such an
obligation would jeopardise the fundamental rights of the employee who
must be free to choose his employer and cannot be obliged to work for an
employer that he has not freely chosen.96
Chapter II on Freedoms contains the following provisions, inter alia,
drawn, for the most part, directly from the ECHR:
right to liberty and security (Article 6);97
respect for private and family life (Article 7);98
protection of personal data (Article 8);99
right to marry and found a family (Article 9);100
freedom of thought, conscience and religion (Article 10);101
freedom of expression and information (Article 11);102
freedom of assembly and association (Article 12);103
90

See the explanatory note, CHARTE 4473/00, CONVENT 49, p 29.

Stemming also from Commission Recommendation 92/131/EEC on the protection of
the dignity of men and women at work, OJ 1992, L49/1. See now, Art 2(3) of the Race Equality Dir, 2000/43/EC, OJ 2000, L180/22; Art 2(3) of the Framework Employment Dir,
2000/78/EC, OJ 2000, L303/16; and the Commissions revised proposal to amend Dir
76/207/EC on equal treatment between men and women, COM(2001) 321, draft Art 1a.
Discussed in ch 9.
92
See the explanatory note, CHARTE 4473/00, CONVENT 49, p 7.
93
See further, P OHiggins, Labour is not a CommodityAn Irish Contribution to
International Labour Law (1997) 26 Industrial Law Journal 225.
94
Cases C132/91 and C138139/91, Katsikas v Konstantinidis [1992] ECR I6577.
95
Dir 77/187/EEC, OJ 1977, L61/26.
96
Paras 312. See B Hepple, Social Values and European Law [1995] Current Legal
Problems 39 at 524.
97
Conveys the same meaning and scope as Art 5 ECHR.
98
Corresponds to the rights contained in Art 8 ECHR.
99
Derived from Art 286 [ex 213b] EC and Dir 95/46/EC on the protection of individuals
with regard to the processing of personal data and the free movement of such data, OJ 1995,
L281/31. See also, Art 8 ECHR and Council of Europe Convention of 28 Jan 1981 for the
Protection of Individuals with regard to the Automatic Processing of Personal Data, ratified
by all EU Member States.
100
This is broader than Art 12 ECHR, which refers only to men and women of marriageable age.
101
Corresponds to Art 9 ECHR.
102
Follows Art 10 ECHR.
103
Based on Art 11 ECHR.
91

The Charters Social Rights and Principles 523

right to education (Article 14);104
freedom to choose an occupation and engage in work (Article 15);105
freedom to conduct a business (Article 16).106
Article 52(3), discussed below, provides that where the rights laid down in
the Charter correspond with those in the ECHR the meaning and scope of
those rights shall be the same. In respect of the right to freedom of assembly and association in Article 12, for example, this has been interpreted
by the Strasbourg Court in the context of Article 11 ECHR, as including
both the right to join and not to join a trade uniona negative right of
association.107
Article 15(3) contains the only express reference to nationals of thirdcountries who are authorised to work in the territories of the Member
States and are entitled to working conditions equivalent to those of citizens
of the Union. Viewed in isolation, this provision conveys a broad conception of citizenship as a common bond transcending nationality.108
However, neither the citizenship provisions in the EC Treaty, which are tied
to nationality of a Member State,109 nor the requirement for unanimity for
legislative measures in respect of the working conditions of third-country
nationals,110 are affected, a situation that would remain unchanged even if
the Charter were to become legally binding.111
Chapter III on Equality enumerates the following rights:
equality before the law (Article 20);112
non-discrimination (Article 21);113
cultural, religious and linguistic diversity (Article 22);114
104
Derived from the common constitutional traditions of the Member States and Art 2 of
the Protocol to the ECHR. The right to education also includes vocational and continuing
trainingArt 10 ESC and point 15 of the Social Charter. Art 14(2) states that this right
includes the possibility to receive free compulsory education. According to the explanatory
note, CHARTE 4473/00, CONVENT 49, p 16, this does not require all establishments that
provide education to be free of charge. Nor does it exclude certain specific forms of education having to be paid for, if the State takes measures to grant financial compensation.
105
Drawn from Art 1(2) ESC and the case law of the Court of Justiceeg Case 44/79,
Hauer v Land Rheinland-Pfalz [1979] ECR 3727.
106
Based on case law: eg Case 4/73, Nold v Commission [1974] ECR 491.
107
Sigurjonnson v Iceland [1993] Series A no 264; Young, James & Webster [1981] Series
A no 44. See also, Art 5 ESC, Art 22 of the International Covenant on Civil and Political
Rights; Art 8 of the International Covenant on Economic, Social and Cultural Rights; and
ILO Convention Nos 87 and 98.
108
See AG Jacobs in Case 274/96, Bickel & Franz [1998] ECR I7637, at paras 234 of
his opinion. See further, Reich, n 66 above at 1013.
109
Art 17(1) [ex 8] EC.
110
Under Art 137(3) EC.
111
See Reich, n 66 above at 23.
112
This is a basic tenet of national constitutions. Also recognised by the Court of Justice:
eg Case 283/83, Racke v Hauptzollamt Mainz [1984] ECR 3791.
113
Based on Art 12 [ex 6] EC and Art 13 EC. Further sources are Art 14 ECHR and Art
11 of the Convention on Human Rights and Biomedicine.
114
Derived from Art 6 [ex F] TEU and Art 151 [ex 128] EC, the provisions on culture.

524 The EU Charter of Fundamental Rights

equality between men and women (Article 23);
rights of the child (Article 24);115
rights of the elderly (Article 25);116
integration of persons with disabilities (Article 26).117
Article 21(1) lays down a general right to non-discrimination as follows:118
Any discrimination based on any ground such as sex, race, colour, ethnic or social
origin, genetic features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Article 22(2) replicates the prohibition of discrimination on grounds of

nationality contained in Article 12 [ex 6] EC. By contrast, the grounds of
discrimination emphasised above are in addition to those referred to in
the exhaustive list in Article 13 EC,119 although the words racial or ethnic
origin in that provision may imply discrimination based on colour, genetic
features and membership of a national minority.120 There is a danger that
the inclusion of additional classifications of discrimination may further
accentuate the hierarchical essentialist model of EU equalities law and raise
unrealistic expectations of programmatic and legislative action in areas that
fall outside the competence of the Community. Conversely, the reference to
discrimination on the grounds of social origin, which had been specifically
excluded during the drafting stage of Article 13 EC, amounts to a political
recognition of disadvantage arising from multiple or cumulative discrimination in society.121
Article 23 on equality between men and women states that:122
Equality between men and women must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures
providing for specific advantages in favour of the under-represented sex.
115
Based on the New York Convention on the Rights of the Child of 20 Nov 1989,
ratified by all EU Member States.
116
Drawn from Art 23 of the Revised ESC. See also points 2425 of the Social Charter.
This article did not appear in the original draft.
117
Based on Art 15 ESC and point 26 of the Social Charter.
118
Emphasis added.
119
Art 13 EC provides that: Without prejudice to the other provisions of this Treaty and
within the limits of the powers conferred upon it by the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament,
may take appropriate action to combat discrimination based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation.
120
The Race Equality Dir, 2000/43/EC, OJ 2000, L180/22, contains no specific definition
of the term racial or ethnic origin although it is made clear in recital 6 that the EU rejects
theories that attempt to determine the existence of separate human races and the use of the
term racial origin does not imply acceptance of such theories.
121
See ch 9 for discussion of these concepts.
122
Emphasis added.

The Charters Social Rights and Principles 525

On the face of it the right to equality between the sexes appears to be no
more than a concise version of Article 141 [ex 119] EC. Article 23 does,
however, shift the emphasis from formal to substantive equality by declaring that equality between men and women must be ensured. In the light
of Article 23, there is potential for the Court to reconsider its case law
in this area, in particular the need for a comparator in sex discrimination
cases,123 on the basis that the absence of a comparator should not be
allowed to undermine the fundamental rights guarantee. The second paragraph of Article 23 contains the essence of Article 141(4) EC but, as part
of the Charter, it is indicative of not just a right to equal opportunities but
also of meaningful participation in society.124 Further, by contrast with
Article 21, where the prohibition of discrimination is expressed negatively,
Article 23 amounts to a positive commitment to the principle of equality
and serves to reinforce the Courts approach in recent cases such as
Badeck,125 Gerster126 and Schrder.127 Nevertheless, while Article 23 holds
the potential for a more positive approach it will, at the same time, have
to be reconciled with the clear wording of the equality directives.
Moreover, by stressing the application of the equality principle in all
areas, Article 23 is consistent both with the general obligation to promote
gender equality in Articles 2 and 3(2) EC and the practice of mainstreaming and specific actions targeted at increasing the participation of women.
In addition, it provides a platform for advancing the alternative paradigm
of imposing positive duties on states, public bodies and employers to
promote equality in their respective spheres.128
Chapter IV on Solidarity comprises employment rights, social entitlements
and other miscellaneous rights to, inter alia, access to a free placement
service,129 health care,130 and a high level of environmental and consumer
protection.131 Employment rights and social entitlements include:
information and consultation within the undertaking (Article 27);
collective bargaining and action (Article 28);
protection in the event of unjustified dismissal (Article 30);
123

For a recent example, see Case C218/98, Abdoulaye v Renault [1999] ECR I5723.
See Weiss, n 55 above.
Case C158/97, Badeck and others v Hessischer Ministerprsident [2000] ECR I1875.
126
Case C1/95, Gerster v Freistaat Bayern [1997] ECR I5253.
127
Case C50/96, Deutsche Telekom AG v Schrder [2000] ECR I743. See ch 10 for a
full discussion of this case law.
128
See S Fredman, Equality: A New Generation? (2001) 30 Industrial Law Journal 145
at 16364.
129
Art 29based on Art 1(3) ESC and point 13 of the Social Charter. This is no more than
a right for job seekers to receive information about employment vacancies and, as such, can
also be implied from Art 15(1) on the right to engage in work and to pursue a freely chosen
or accepted occupation. See further, Weiss, n 55 above.
130
Art 35derived from Art 12 ESC and point 10 of the Social Charter.
131
Arts 37 and 38.
124
125

526 The EU Charter of Fundamental Rights

fair and just working conditions (Article 31);
prohibition of child labour and protection of young people at work
(Article 32);
family and professional life (Article 33);
social security and social assistance (Article 34).
It is immediately apparent that the chapter on Solidarity does not provide a
comprehensive catalogue of fundamental social rights. The drafting
Convention appears to have taken a rather cursory view of the ESC and the
Social Charter despite the explicit reference to the visibility of these instruments in the Cologne mandate. For example, the right to work,132 the right
to a fair remuneration133 and the right to housing are among provisions in the
ESC or Revised ESC that are not included in the negotiated text of the
Charter.134 In his insightful analysis of the workings of the Convention, Goldsmith justifies this vanishing act on the grounds that social and economic
rights are usually not justiciable in the same way as other rights.135 It is
undoubtedly the case that certain social rights, such as the right to social assistance or housing, concern positive social entitlements provided by governments but that does not mean that they are inherently non-justiciable.136
Goldsmith rather lamely suggests that it would be difficult to provide for a
right to an adequate level of housing in a legal text137 but this does not absolve
the EU and the Member States from responsibility to formulate policies and
programmes in a manner consistent with international guidance.138
The distinction between rights and principles in the solidarity provisions is far from clear. For example, Article 27 states that workers or their
representatives at the appropriate levels are guaranteed the right to information and consultation within the undertaking in good time in the cases
and under the conditions provided for by Community law and national
laws and practices.139 The precise legal effect of these conditions will be
considered in the next section, with particular reference to Article 28 on
the right of collective bargaining and action,140 and Article 30 on protection in the event of unjustified dismissal,141 where the same rider is attached.
132

Now Art 1 ESC.

Art 4 ESC and point 5 of the Social Charter.
134
Art 31 of the Revised ESC.
135
Goldsmith, n 35 above at 1212.
136
See Craven, n 83 above at 87.
137
Goldsmith, n 35 above at 1212.
138
Craven, n 83 above at 89. Craven refers to the General Comment of the UN
Committee on Economic, Social and Cultural Rights on the Right to Adequate Housing
which encompasses more than simply a roof over ones head and includes matters such as
security of tenure, availability of services, affordability, habitability, accessibility, location
and cultural adequacyGeneral Comment No 4 (1991) UN Doc E/1992/23, annex III, paras
78.
139
Art 27 is consistent with Art 21 of the Revised ESC and points 1718 of the Social
Charter. It also incorporates the notion of social dialogue contained in Arts 138 and 139 [ex
118b] EC.
140
Based on Art 6 ESC and points 1214 of the Social Charter.
141
Draws on Art 24 of the Revised ESC.
133

The Charters Social Rights and Principles 527

For now it is important to note that several of the provisions in the
Solidarity Chapter are not expressed as freestanding rights.
Directive 2002/14 on establishing a general framework for informing
and consulting employees in the European Community142 can be seen as an
attempt to secure this objective through Community law while, as Article
27 indicates, allowing for national diversity. In effect, Article 27 reaffirms
the existing obligation on the Community to act in this area but it does not
resolve the issue of what level is appropriate and under what conditions the
guarantee will operate.143 Furthermore, the Charter makes no reference
to the right of workers, contained in the Revised ESC,144 to take part in the
determination and improvement of the working conditions and working
environment. The absence of any reference to workers participation is a
striking indication of the failure of the Charter to fully address the issue of
inequality in the employment relationship.145
Article 27 is a good example of a right that is derived primarily from
Community law. Articles 31, 32146 and 33(2)147 also fall into this category.
For example, Article 31(1), providing that every worker has the right to
working conditions which respect his or her health, safety and dignity, is
derived mainly from the Framework Directive on Safety and Health at
Work.148 It should be noted, however, that the term working conditions,
drawn from Article 140 [ex 118] EC, is used rather than the much wider
working environment found in Article 137(1) [ex 118a] EC.149 Article
31(2), which grants every worker the right to limitation of maximum
working hours, to daily and weekly rest and an annual period of paid leave,
is based on the Working Time Directive.150 While the exclusion of certain
sectors and activities from that Directive is now being addressed,151 the law,
even after the implementation of a series of supplementary sectoral directives,152 will still not contain an unfettered right to any of the proclaimed
rights apart from a minimum of four weeks paid annual leave. The main
area of contention is likely to concern Article 18(b)(i) of the Working Time

142

Dir 2002/14/EC, OJ 2002, L80/29.

See Hepple (2001, Industrial Law Journal) n 84 above at 22829.
Art 22 of the Revised ESC.
145
See the case made by Hepple (1995, Current Legal Problems) n 96 above at 52.
146
Art 32 is based on Dir 94/33/EC on the protection of young people at work, OJ 1994,
L216/12. See also, Art 7 ESC and points 2023 of the Social Charter.
147
Art 33(2) contains the basic rights set out in the Pregnancy and Maternity Dir,
92/85/EEC, OJ 1992, L348/1; and the Parental Leave Dir, 96/34/EC, OJ 1996, L145/4. See
also Art 8 ESC and Art 27 of the Revised ESC. Art 33(1) provides for a more general family
right, based on the right in Art 16 ESC to legal, economic and social protection.
148
Dir 89/391/EEC, OJ 1989, L183/1. Other sources include Art 3 ESC, Art 26 of the
Revised ESC and point 19 of the Social Charter.
149
See further, Case C84/94, United Kingdom v Council [1996] ECR I5755.
150
Dir 93/104/EC, OJ 1993, L307/18. See also, Art 2 ESC and point 8 of the Social Charter.
151
See Dir 2000/34/EC, OJ 2000, L195/41.
152
Dir 99/63/EC, OJ 1999, L167/33 and Dir 99/95/EC, OJ 2000, L14/29 (both concerning seafarers) and Dir 2000/79/EC, OJ 2000, L302/57 (mobile airline staff).
143
144

528 The EU Charter of Fundamental Rights

Directive which allows Member States discretion to provide for an
individual opt-out from the maximum working week provisions where
workers agree to an employers request to perform such work. In the UK,
where this opt-out is available, it has been widely suggested that, in practice, many workers have little option but to agree to such requests. It is difficult to see how this clause can be reconciled with Article 31.
Under Article 34(1) the Union recognises and respects a range of
entitlements to social security benefits and social services.153 Article 34(3)
applies the same language to the right to social and housing assistance so
as to ensure a decent existence for all those who lack sufficient resources
in order to combat social exclusion and poverty.154 The purpose of this
Article is to reaffirm the European model of social protection while also
respecting the competence of the Member States in these areas. This is consistent with the principle of subsidiarity and helps us to distinguish between
general principles and the pursuit of specific policies.155 Therefore, although
Article 34 may have only a limited practical impact, it provides some political ballast for the preservation of welfare states in Europe based on the
notion of social rights as positive entitlements.
Finally, before we turn to the legal scope and effectiveness of these provisions, it is important to note that Chapter VI on Justice includes a number
of rights concerned with access to justice including: the right to an effective remedy,156 a fair trial,157 the presumption of innocence and the right of
defence.158

IV THE LEGAL SCOPE OF THE CHARTER

Chapter VII, Articles 5154, contains general provisions that are intended
to define the legal scope of the Charter and the level of protection it offers,
153
Based on Arts 137(3) and 140 [ex 118] EC, Art 12 ESC and point 10 of the Social
Charter. Art 34(1) refers to social entitlements in cases such as maternity, illness, industrial
accidents, dependency or old age, and in the case of loss of employment, in accordance with
the rules laid down by Community law and national laws and practices.
154
This paragraph draws on Arts 3031 of the Revised ESC and point 10 of the Social
Charter.
155
On this point, see the explanation by Hepple (1995, Current Legal Problems) n 96 above
at 50.
156
Art 47, first paragraph, derived from Art 13 ECHR and buttressed by more extensive
protection provided by the Court of Justice guaranteeing an effective remedy: Case 222/84,
Johnston v Chief Constable of the RUC [1986] ECR 1651; Case 222/86, UNECTEF v Heylens
[1987] ECR 4097; and Case C97/91, Borelli v Commission [1992] ECR I6313.
157
Art 47, second and third paragraphs. Included within this provision is a right to legal
aid for those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. In Airey [1979] Series A vol 32/11, the European Court of Human Rights
held that provision should be made for legal aid where the absence of such aid would make
it impossible to ensure an effective remedy.
158
Art 48corresponding with Art 6(2) and (3) ECHR.

The Legal Scope of the Charter

529

on the assumption that it may become a binding document in due

course.159 Therefore, in order to determine both the effectiveness of the
Charter as a soft law instrument and its potential legal scope in the future
if it is incorporated into the Treaties, it is necessary to explore these provisions in depth.
Article 51 outlines the scope of the Charter. Under Article 51(1) the
provisions in the Charter are addressed to the institutions and bodies160
of the Union with due regard to the principle of subsidiarity and to the
Member States only when they are implementing Union law. In accordance with their respective powers they shall respect the rights, observe the
principles and promote the application of the Charter. Therefore, on
the one hand, the purpose of the Charter is to enhance the legitimacy of
the EU by ensuring that it complies with internationally recognised standards of fundamental rights in all of its activities, without granting the
Union a specific competence to accede to the ECHR or ESC. The national
government representatives were clearly determined to block the notion of
an independent EU human rights policy, as advocated by Alston and
Weiler.161 Hence, the reference to subsidiarity, which is intended to prevent
the Charter having a centralising effect.162
The Member States, on the other hand, are regarded as individually
bound by the obligations in the Charter under international law.163 In fact
this is not strictly the case as many Member States have not signed up to,
for example, the Revised ESC, or all relevant ILO Conventions. However,
the adoption of the Charter as a high level inter-institutional political declaration, and the unique manner of its drafting, strengthens its legitimacy
and creates an expectation of conformity with the individual fundamental
rights that it enumerates without creating a strict legal obligation on the
Member States.164 Further, a clear message is being sent to applicant states
that the Charter now provides the reference point for the assessment of the
fundamental rights criteria required for EU accession.165
159

See Costello, n 63 above at 128.

According to the explanatory note, this would include all institutions listed in Art 7
[ex 4] EC and bodies set up by the Treaties or secondary legislation. See CHARTE 4473/00,
CONVENT 49, p 46. For discussion, see Curtin and van Ooik, n 42 above at 1048.
161
See n 19 above. For a powerful critique, see von Bogdandy, n 57 above.
162
See von Bogdandy, ibid at 1316.
163
A point that is reinforced by Art 6(1) [ex F(1)] TEU, which refers to Member States
observance of common principles including liberty, democracy, respect for human rights and
fundamental freedoms, and the rule of law.
164
See especially, J Kenner, EC Labour Law: the Softly, Softly Approach (1995) 11 International Journal of Comparative Labour Law and Industrial Relations 307; and F Snyder,
Soft Law and Institutional Practice in the European Community, EUI Working Paper LAW
No 93/5 (EUI, Florence, 1993).
165
In this respect the Charter is to be read in conjunction with Art 7 TEU whereby a
Member State found to have been guilty of a serious and persistent breach of fundamental
rights and other principles listed in Art 6(1) [ex F(1)] TEU can have certain of their EU rights
suspended. Under the draft Treaty of Nice, Art 7 TEU will be strengthened to allow action to
160

530 The EU Charter of Fundamental Rights

Nevertheless, unlike the Social Charter, the Charter of Fundamental
Rights is not directly addressed to the Member States except in so far as
when they are implementing Union law. An earlier draft had used the formulation that Member States would be bound by the Charter only when
acting within the scope of Community law,166 a statement that is consistent with the case law of the Court.167 Rather confusingly, the Conventions
explanatory note suggests that Member States will be bound when they act
in the context of Community law.168 Viewed in isolation, Article 51(1)
would appear to be a restriction on the Courts powers of interpretation
and application of fundamental rights.169 However, Article 53 states that
nothing in the Charter shall be interpreted as restricting or adversely affecting human rights in their field of application by Union law. According
to the explanatory text this is intended to maintain the level of protection
currently afforded.170 This would appear to leave the Court free to apply
the rights in the Charter horizontally in preliminary references involving
private parties, consistent with its case law on sex equality171 and nondiscrimination on grounds of nationality,172 binding employers and
entities which regulate employment.173

be taken against a Member State where there is a clear risk of a serious breach by that State.
The Council may address appropriate recommendations to the State in question, acting by
a four-fifths majority and after obtaining the assent of the European Parliament, on a reasoned
proposal by one-third of Member States, by the European Parliament or by the Commission.
The purely procedural stipulations in Art 7 TEU, which include a procedure for the Member
State under review to be heard and for an independent report to be submitted to the Council,
will be subject to review by the Court under Art 46 [ex L] TEU. These changes are intended
to give the EU power to act where there is a potential violation of human rights principles
and have been introduced as a direct response to the events in Austria where, following the
electoral success of the far-right Freedom Party in Oct 1999, the EU found itself unable to
act decisively.
166
CHARTRE 4360/00.
167
See Cases C60 and 61/84, Cinthque v Fdration Nationale des Cinmas Franais
[1985] ECR 2605, para 25; Case C12/86, Demirel v Stadt Schwaebisch Gmund [1987] ECR
3719, para 28; and Case C260/89, ERT v Pliroforissis & Kouvelas [1991] ECR I2925,
para 42, where the Court held that it has no power to examine the compatibility with the
European Convention on Human Rights of national rules which do not fall within the
scope of Community law. On the other hand, where such rules do fall within the scope of
Community law, and reference is made to the Court for a preliminary ruling, it must provide
all the criteria of interpretation needed by the national court to determine whether those rules
are compatible with the fundamental rights the observance of which the Court ensures
and which derive in particular from the European Convention on Human Rights.
168
See CHARTE 4473/00, CONVENT 49, p 46. See further, L Besselink, The Member
States, the National Constitutions and the Scope of the Charter (2001) 8 Maastricht Journal
68 at 76.
169
See de Brca (2001, European Law Review) n 18 above at 137.
170
See CHARTE 4473/00, CONVENT 49, p 50.
171
See Case 43/75, Defrenne v Sabena II [1976] ECR 455.
172
See Case C281/98, Angonese v Cassa di Risparmio di Bolzano SpA [2000] ECR I4139.
173
See Costello, n 63 above at 144.

The Legal Scope of the Charter

531

The Court has ruled that Member States may be held liable for legislative or administrative decisions in all situations which fall within the scope
ratione materiae of Community law.174 For example, the Court has ruled
that actions of Member States in areas such as education,175 vocational
training,176 public transport,177 and health,178 may fall within the scope of
Community law if they are incompatible with, or a restraint upon, the exercise of market rights, such as the free movement rules. In this respect it is
important to note that the Race Equality Directive will prohibit discrimination on the grounds of racial or ethnic origin in a wide range of fields
including, inter alia, social protection, social security, social advantages,
education and healthcare.179 The new Directive will present a fresh challenge for the Court when ruling on the policy choices of Member States in
areas of national competence. Moreover, the Charters emphasis on indivisible values of human dignity, freedom, equality and solidarity180 adds
weight to Poiares Maduros suggestion that the Court should elevate the
assessment of reasonableness of public intervention in the market from
market integration rules to the realm of classical social and economic fundamental rights.181
The main thrust of Article 51(1) must be understood in the context of
Article 6(2) [ex F(2)] TEU which places a duty on the Union to respect fundamental rights derived both from the ECHR and the constitutional traditions common to the Member States. This means that there is a positive
obligation on the Commission when proposing legislation, and the European Parliament and Council when performing their legislative roles, to take
full account of the Charter. While this obligation does not carry binding
force in itself, the Charter adds meaning and legal certainty to the responsibility of the Community and the Member States in Article 136 [ex 117]
EC to have in mind fundamental social rights when pursuing their objectives under the Social Chapter. According to the Commission, the Charter
will produce all its effects, legal and others, whatever its nature.182 In performing their judicial roles, the Court of Justice and the Court of First
Instance will be obliged to have cognisance of the rights in the Charter.
In particular, the Courts will have to re-evaluate their narrow approach to
174
Case C85/96, Martinez Sala v Freistaat Bayern [1998] ECR I2691, para 63. For
discussion, see Poiares Maduro in Alston, n 3 above at 4567.
175
For example, see Case 152/82, Forcheri v Belgian State [1983] ECR 2323.
176
See Case 293/83, Gravier v City of Lige [1985] ECR 593; and Case 24/86, Blaizot v
University of Lige [1988] ECR 379.
177
See Case 32/75, Christini v SNCF [1975] ECR 1085.
178
See Case C158/96, Kohll v Union des caisses de maladie [1998] ECR I1931; and Case
C120/95, Decker v Caisse de maladie des employs privs [1998] ECR I1831.
179
Art 3(1) of Dir 2000/43/EC, OJ 2000, L180/22. See ch 9 for discussion.
180
Second recital of the preamble.
181
See Poiares Maduro in Alston, n 3 above at 464.
182
COM(2000) 644, para 10.

532

The EU Charter of Fundamental Rights

the locus standi rules for non-privileged applicants in judicial review proceedings183 to ensure compliance with the access to justice provisions in the
Charter.184
When carrying out their legislative functions, it will be difficult for the
EU institutions to ignore the Charter.185 For example, the Commissions
draft directive on working conditions for temporary workers,186 which is
based on Article 137(1) EC, is designed to ensure full compliance with
Article 31 of the Charter that proclaims the right of every worker to fair
and just working conditions.187 Moreover, the proposal also refers to the
Social Charter,188 emphasising that it has continuing relevance and a quite
distinctive function because, unlike the Charter of Fundamental Rights, it
places particular responsibility on the Member States to guarantee the fundamental social rights that it enumerates.189 Hence, the recent Directive on
establishing a general framework for informing and consulting employees,190 which applies to undertakings with more than fifty employees even
if they are based in only one Member State, demonstrates that the Social
Charter still retains potency as a catalyst for social legislation and is not
wholly superseded by the new Charter.191
While Article 51(1) opens up possibilities for utilising the Charter, Article
51(2) limits its scope as follows:
This Charter does not establish any new power or task for the Community or the
Union, or modify powers and tasks defined by the Treaties.

The purpose of this clause is to prevent the Charter being used as a Trojan
horse to expand social policy even if it enters into legal force.192 For
example, although the Charter recognises and respects the entitlement to
social security and social assistance,193 this right is purely symbolic, or at
183
With the exception of the privileged institutional applicants, Art 230 [ex 173] EC
restricts standing for judicial review proceedings thus: Any natural or legal person may, under
the same conditions, institute proceedings against a decision addressed to that person or
against a decision which, although in the form of a regulation or a decision addressed to
another person, is of direct and individual concern to the former. For analysis of the Courts
approach, see A Arnull, The European Union and its Court of Justice (OUP, Oxford, 1999)
pp 409.
184
Arts 4750.
185
COM(2000) 644, para 10.
186
COM(2002) 149.
187
Draft first recital of the preamble.
188
Draft second recital of the preamble, which refers to the achievement of harmonisation
of the living and working conditions of temporary workers in accordance with point 7 of the
Social Charter.
189
Point 27 of the Social Charter.
190
Dir 2002/14/EC, OJ 2002, L80/29. This Directive is also based on Art 137(1) EC.
191
But see Hepple (2001, Industrial Law Journal) n 84 above at 230.
192
The fear expressed by the Confederation of British Industry is that the Charter will be
a Trojan horse imposing social policy through the back doorThe Times, 1 June 2000.
See Betten, n 11 above at 151.
193
Art 34(1).

The Legal Scope of the Charter

533

least adds nothing to existing Community rules concerning free movement

and non-discrimination. Further, the limitation in Article 51(2) is reinforced
by Article 52(2), concerning the scope of guaranteed rights, which declares
that rights recognised by the Charter, which are based on the Treaties, shall
be exercised under the conditions and within the limits defined by the
Treaties. In order to illustrate the effect of these limitations of scope let us
consider two possible scenarios.
The first scenario concerns Article 30, which recognises the right of every
worker to protection against unjustified dismissal, in accordance with Community law and national laws and practices. According to Goldsmith,194
the UK had to fight very hard to include this formulation in the final draft.
From his perspective, economic and social rights are mere principles that
will only be realised as exercisable rights to the extent that they are implemented by national law or, in those areas where there is such competence,
by Community law.195 Goldsmith was acutely aware that the UKs national
legislation on unfair dismissal, which excludes workers in the first year of
their employment contract, was under threat.196 Article 137(3) EC provides
a legal base for Community legislation to provide protection against dismissal but only subject to a requirement of unanimity in the Council. Thus,
although Article 51(1) makes it an imperative for the Commission to bring
forward a proposal in this area, the effect of Article 30, read in conjunction with Article 51(2), is that, even if the Charter becomes legally binding,
it only creates a moral obligation on the Council to act. In turn, the UK
would be entitled to veto such a proposal in its entirety or seek to secure
an amendment that would exclude the most vulnerable workers from the
right to protection against unjustified dismissal.
Article 28, concerning the right of collective bargaining and action provides us with another interesting scenario. Workers and employers, or their
respective organisations have, in addition to the right to negotiate and conclude collective agreements at the appropriate level, the right in cases of
conflicts of interest, to take collective action to defend their interests, including strike action. As with Article 30, this right applies only in accordance
with Community law and national law and practices. Let us suppose that
the Commission wishes to propose a directive to harmonise the law on the
right to strike.197 Immediately this would conflict with the exclusion of the
right to strike from the scope of Community legislative action under Article
137(6) EC. The effect of Article 52(2) is, according to the explanatory

194

Goldsmith, n 35 above at 1213.

Ibid.
See Betten, n 11 above at 163.
197
For advocacy of action in this area, see P Germanotta and T Novitz, Globalisation and
the Right to Strike: The Case for European-Level Protection of Secondary Action (2002) 18
International Journal of Comparative Labour Law and Industrial Relations 67.
195
196

534

The EU Charter of Fundamental Rights

note,198 to preserve the status quo because the Charter does not alter the
system of rights and conditions conferred by the Treaties and Community
legislation. Further, Article 51(2) may inhibit the Community from exercising its powers in this respect, making it difficult to justify legislation
based on another ground such as common market approximation under
Article 94 [ex 100] EC.199 This inconsistency undermines both the visibility of the Charter and its effectiveness. Member States, such as the UK, who
have domestic legislation that does not comply with ILO Convention No
87 or Article 6(4) ESC, from which the right in Article 28 is derived, are
under no compulsion to act. As Weiss200 observes, the Community is obliged
by the Charter to promote a right in an area where it has no power
to harmonise laws, which might lead one to suggest that Article 28 is
nugatory in effect.
Article 51(1) will also oblige the Court of Justice and the Court of First
Instance, within their respective jurisdictions, to take account of the Charter
when carrying out their duties of interpretation under Article 220 [ex 164]
EC.201 This opens up a number of possibilities but also carries with it certain
dangers. The Court has developed the concept that respect for fundamental rights forms an integral part of the general principles of law protected
by the Court of Justice.202 Fundamental rights have been utilised incrementally to perform an important gap-filling function, enabling the Court
to assert the supremacy of Community law within the framework and
structure of the Treaties.203 As de Witte204 observes, by using unwritten
principles instead of, or in addition to, rights expressly contained in the
constitution, supreme courts enlarge their scope for creative law-making.
For Weiler205 the ability of the Court to draw from the legal system of each
Member State as an organic and living laboratory of human rights protection is one of the Communitys truly original features. Indeed in cases

198

CHARTE 4473/00, CONVENT 49, p 48.

On the basis that this would prevent distortions of competition and help to establish the
common market in accordance with Art 2 EC. Utilisation of Art 94 EC in this regard would
be possible notwithstanding the limited scope of the narrower internal market concept in Art
14 [ex 7a] EC and its distinct legal base for approximation measures in Art 95 [ex 100a] EC.
See ch 3 for discussion of this issue in the context of the Courts judgment in Case C376/98,
Germany v European Parliament and Council (Tobacco Advertising) [2000] ECR I8419.
200
See Weiss, n 55 above.
201
This is based on the revised text of Art 220 [ex 164] EC in the draft Treaty of Nice. If
ratified, the new Treaty will expand the jurisdiction of the Court of First Instance. See OJ
2000, C80/1. See further Shaw, n 6 above, at 2038.
202
See Case 11/70, Internationale Handelsgesellschaft v Einfuhr-und Vorratsstelle Getreide
[1970] ECR 1125, para 4.
203
Ibid. See B de Witte, The Past and Future Role of the European Court of Justice in the
Protection of Human Rights in Alston, n 3 above, 85997 at 863.
204
Ibid at 865.
205
See Weiler (2000, European Law Journal) n 72 above at 96.
199

The Legal Scope of the Charter

535

such as Rutili,206 Johnston,207 Wachauf 208 and P v S,209 the Court has been
able to identify Community provisions as specific manifestations of more
general principles enshrined in the ECHR and national constitutions210 and
therefore reflective of common values.211 The Court has resolved that
the Community cannot accept measures that are incompatible with the
observance of fundamental rights thus recognised and guaranteed,212 but
it has no power to examine the compatibility with fundamental rights of
national rules that do not fall within the scope of Community law.213 Therefore, fundamental rights as developed by the Court have provided a source
of inspiration for the interpretation and application of Community law
amounting to an unwritten charter of rights.214
Weiler fears that the adoption of the Charter runs the risk of inducing
a more inward looking jurisprudence and chilling the constitutional dialogue.215 Where, for example, rights in the Charter are derived from the
case law of the Court this may inhibit further innovation and induce a
freezing effect.216 Equally, the explanatory note may unduly influence the
Court even though it has no legal value and is simply intended to clarify
the provisions of the Charter.217 For example, in D and Sweden v Council,218
the issue at stake concerned recognition by the Council of a same-sex
206
Case 36/75, Rutili v Minister for the Interior [1975] ECR 1219, para 32. See P Craig
and G de Brca, EU LawText, Cases and Materials, 2nd edn (OUP, Oxford, 1998) pp 3035.
207
Case 222/84, Johnston v Chief Constable of the RUC [1986] ECR 1651, para 18.
208
Case 5/88, Wachauf v Germany [1989] ECR 2609, para 19.
209
Case C13/94, P v S & Cornwall CC [1996] ECR I2143, para 18.
210
See Case 44/79, Hauer v Land Rheinland-Pfalz [1979] ECR 3727, paras 1416.
211
See Craig and de Brca, n 206 above p 305.
212
See Case C260/89, ERT v Pliroforissis & Kouvelas [1991] ECR I2925, para 41. For
a more wide ranging statement, see the opinion of AG Jacobs in Case C168/91, Konstantinidis v Stadt Altensteig, Standesamt, & Landratsamt Calw, Ordnungsamt [1993] ECR I1191.
The AG advised that an EU national is entitled to assume that, wherever he goes in the EU
he will be treated in accordance with a common code of fundamental values, in particular
those laid down in the European Convention on Human Rights. In other words, he is entitled to say civis europeus sum and to invoke that status in order to oppose any violation of
his fundamental rights (para 46).
213
For examples of the application of this rule, see Case C299/95, Kremzow v Austria
[1997] ECR I2629; Case C309/96, Annibaldi v Sindaco del Comune di Guidonia &
Presidente Regione Lazio [1997] ECR I7493; and Case C249/96, Grant v South-West
Trains [1998] ECR I621. Discussed by de Witte, n 203 above at 87074. For a lively debate,
see J Coppel and A ONeill, The European Court of Justice: Taking Rights Seriously? (1992)
29 Common Market Law Review 669; and J Weiler and N Lockhart, Taking Rights Seriously Seriously: The European Court and its Fundamental Rights Jurisprudence (1995) 32
Common Market Law Review 59.
214
See Craig and de Brca, n 206 above, p 296.
215
Weiler (2000, European Law Journal) n 72 above at 96.
216
See de Witte, (2001, Maastricht Journal) n 53 above at 85. De Witte gives the example
of Art 41 on the right to good administration.
217
CHARTE 4473/00, CONVENT 49, p 1. On this point, see Costello, n 63 above at 132.
218
Cases C122/99P and C125/99P [2001] ECR I4139, at para 97 of the opinion. Noted
by E Ellis (2002) 39 Common Market Law Review 151.

536

The EU Charter of Fundamental Rights

partnership that was legally recognised in Sweden. In his opinion, AG

Mischo considered the term spouse in the Communitys Staff Regulations
in the context of Article 9 of the Charter on the right to marry and found
a family. The AG referred directly to the explanatory note, which states that
Article 9 neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex.219 In the light of this advice
he recommended that the Court should follow its earlier case law restricting the meaning of spouse to marital relationships between couples of the
opposite sex.220 In its judgment the Court followed this advice without
making direct reference to the Charter.
Although D might suggest that, to the extent that the Charter is a point
of reference for the Court, it will merely consecrate the status quo,221
the case is perhaps best explained as a classic example of judicial restraint
in a situation where, as in Grant,222 new Community legislation had been
introduced223 or was imminent in an area of acute national sensitivity.224
Article 28 of the Charter, recognising the right of collective bargaining
and action may present the Court with an opportunity to interpret and
apply the Charter more creatively, but it also reveals new dilemmas. We
have discussed the opinion of AG Jacobs and the judgment of the Court in
the pre-Charter case of Albany International225 in a range of contexts, but
the Charter now casts a fresh light on the tension between collective labour
law and competition law. In his extensive opinion, the AG relied primarily
on the case law of the European Court of Human Rights based on Article
11 ECHR concerning freedom of association, the essence of which is replicated in Article 12 of the Charter. The AG was satisfied that, on the basis
of the case law of the Strasbourg Court, the ECHR did not establish a
general right to bargain collectively, and, while he accepted that the right
was recognised by Article 6 ESC and other international instruments upon
which the Member States had collaborated,226 he concluded that there was
insufficient convergence of national legal orders and international legal
instruments on the recognition of a specific fundamental right to bargain
219

CHARTE 4473/00, CONVENT 49, p 12.

See Case 59/85, Netherlands v Reed [1986] ECR 1283.
221
Weiler (2000, European Law Journal) n 72 above at 96.
222
Case C249/96, Grant v South-West Trains [1998] ECR I621. See pp 43542.
223
An amendment to the Staff Regulations had been introduced but was not yet in force at
the material time: Council Reg 781/98/EC, OJ 1998, L113/4. See Ellis, n 218 above at 151.
224
However, recital 22 of the preamble of the Framework Employment Dir, 2000/78/EC,
OJ 2000, L303/16, which prohibits sexual orientation discrimination in employment, states
that the Directive is without prejudice to national laws on marital status and benefits dependent thereon.
225
Case C67/96, Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I5751.
226
ILO Convention Nos 87 and 98; Art 22 of the International Covenant on Civil and
Political Rights; and Art 8 of the International Covenant on Economic, Social and Cultural
Rights.
220

The Legal Scope of the Charter

537

collectively.227 The Court did not address the international instruments in

its judgment although it too ultimately concluded that collective agreements
per se fell outside the competition rules in Article 81 [ex 85] EC.
While the AGs approach is comprehensive, his analysis underplays the
status and autonomy of the ESC and, most importantly, the authority of
the legal experts on the European Committee of Social Rights (ECSR) that
oversees its operation.228 Once again it reveals a bias in favour of first
generation civil and political rights over second generation economic
and social rights. There is, however, a serious underlying problem. The
ECSR is not a court, even if it is quasi-judicial in nature, and therefore, as
Fitzpatrick notes,229 in dealing with the ECHR, the Court of Justice is in
a mode of judges speaking to judges, whereas it tends to perceive other
bodies as non-judicial and discounts their expertise.230 The ECSR is gradually maturing as an expert body that produces a regular, coherent overview
of the ESC and the Revised ESC,231 whereas the Strasbourg Court is concerned only with the interplay between the ESC/Revised ESC and the ECHR
when interpreting and applying the rights protected by the latter.
The emergence of a Charter based on a core concept of indivisible rights
would suggest that the Court is now impelled, in cases concerning the interpretation of provisions derived from the ESC/Revised ESC, to consider the
legal assessments of the ECSR. This would provide a foundation for the
Court to affirm collective bargaining rights, as set out in Article 28, when
ruling on a matter within the scope of Community law.232 However, Article
52(3) may dissuade the Court from acting boldly. Under that provision,
where rights correspond with those guaranteed by the ECHR the meaning
and scope of those rights shall be the same as those laid down by the said
convention. According to the explanatory note this is intended to ensure
consistency between the ECHR and the Charter as determined both by the

227
Para 160. The AG concludes, in para 161, that the right to collective bargaining is
sufficiently protected by the general principle of freedom of contract.
228
The ECSR consists of nine experts assisted by an observer from the ILO. Under the
Amending Protocol of 1991 its functions are to examine the national reports and make a legal
assessment of the states observance of their legal obligations. For further discussion, see Casey,
n 20 above at 56; and Novitz, n 82 above who notes, at 250, attempts by the Parliamentary
Assembly of the Council of Europe to establish either a parallel European Court of Social
Rights or the absorption of the ESC within the ECHR in order to create the basis for strict
legal observance: Recommendation No 1354 on the Future of the European Social Charter
(1998) para 18.
229
See B Fitzpatrick, European Union Law and the Council of Europe Conventions in
Costello, n 20 above, 95108 at 101.
230
Ibid. For example, in Case C249/96, Grant v South-West Trains [1998] ECR I621,
the Court was not prepared to draw on the interpretation of the International Covenant on
Civil and Political Rights by the UN Human Rights Committee, also a quasi-judicial body.
231
Ibid at 101. Until all Member States of the Council of Europe endorse the Revised ESC
the two texts will operate in tandem.
232
See Costello, n 63 above at 137.

538 The EU Charter of Fundamental Rights

text of the ECHR and the case law of the European Court of Human
Rights.233 The Court of Justice is extremely sensitive about its relationship
with its colleagues in Strasbourg, and this feeling of sensitivity has been
heightened and reciprocated following the negotiation and adoption of the
Charter. In a future case the Court may be inclined to follow the European
Court of Human Rights restrictive interpretation of Article 6 ESC in the
context of Article 11 ECHR, for the purposes of judicial consistency and
coherence, rather than adhering to the autonomous but only quasi-judicial
findings of the ECSR. Significantly, there is no mention of the ECSR in
Article 52(3), while the only direct reference to the ESC is in the preamble.
The final sentence of Article 52(3) allows Union laws to lay down more
extensive protection than the ECHR. This would allow the Court leeway
to make direct reference to higher standards laid down in the Charter as
Union law if the Charter enters into legal force.
Article 52(3) is also likely to lead the Court to follow the jurisprudence
of the Strasbourg Court and review its established case law. This possibility was open to the Court in D.234 AG Mischo, basing his interpretation on
the Courts judgment in Grant, was not prepared to make a like-for-like
comparison between the situations of same-sex and opposite-sex couples.
The AG reached this conclusion notwithstanding bolder steps taken in
Strasbourg, where the European Court of Human Rights has now held that
sexual orientation discrimination is a violation of the right to respect for
private life guaranteed by Article 8 ECHR.235 Further, neither the AG nor
the Court referred to the right to non-discrimination in Article 21 of the
Charter, which prohibits sexual orientation discrimination on the basis
of Article 13 EC and also the general non-discrimination clause in Article
14 ECHR which has been broadly interpreted by the European Court of
Human Rights.236 The AG and the Court were undoubtedly influenced
by the fact that only three out of 15 Member States recognised same-sex
partnerships at the material time. However, by September 2001 that figure
had increased to five with legislation pending in several other countries.237
This may allow the Court to review its case law on the basis of the common constitutional traditions of the Member States without having to
concede that its earlier formulation is clearly at odds with Article 52(3).
Article 53 provides a minimum standards guarantee of the level of
protection offered by the Charter:
233

CHARTE 4473/00, CONVENT 49, p 48.

Cases C122/99P and 125/99P [2001] ECR I4139.
235
Appl Nos 33985/96 and 33986/96, Smith and Grady v United Kingdom [2000] 29
EHRR 493. In D the Court found, at para 59, that Art 8 ECHR was not affected by the Staff
Regulations because the refusal to grant the allowance did not affect Ds civil status.
236
Appl No 33290/96, da Silva Mouta v Portugal [2001] 31 EHRR 47.
237
See Ellis, n 218 above at 152. For comprehensive analysis, see R Wintemute and M
Andenas, Legal Recognition of Same-Sex Partnerships: A Study of National, European and
International Law (Hart, Oxford, 2001).
234

The Legal Scope of the Charter

539

Nothing in this Charter shall be interpreted as restricting or adversely affecting

human rights and fundamental freedoms as recognised, in their respective fields of
application, by Union law and international law and by international agreements
to which the Union, the Community or all Member States are party, including
the European Convention for the Protection of Human Rights and Fundamental
Freedoms, and by Member States constitutions.

The purpose of Article 53 is to maintain the level of protection currently

afforded within their respective scope by Union law, national law and international law.238 Consistent with the notion of non-retrogression inherent
within Article 137(5) [ex 118a(3)] EC, Article 53 is designed to prevent the
Charter being interpreted and applied in such a way as to reduce or level
down the protection of rights within the EU and national legal orders.
Moreover, if the Charter becomes legally binding, it is intended that it will
guarantee the minimum standard or floor of fundamental rights protection that it enunciates, but it should not be seen as a ceiling. For example,
existing laws may provide a higher standard of protection, or the Charter
may act as a spur for the elaboration or expansion of the rights that it
contains. Although some concern has been expressed that Article 53
may replace or weaken Member States provisions concerning fundamental rights,239 and may even threaten the supremacy of Community law,
it is better understood as a political safeguard against the diminution
of the enjoyment of rights based on other rules.240
Finally, Article 54 contains a prohibition against any right to engage in
any activity or to perform any act aimed at the destruction of any of the
rights and freedoms or their limitation to a greater extent than is provided
for in the Charter. This is intended to be a straightforward transposition of
a corresponding provision in the ECHR.241 In the context of the Charter,
however, the broad span of enumerated rights, many of which are polycentric, in the sense that they involve competing interests that may have to
be evaluated against each other,242 may cause particular difficulties. For
example, to what extent is the exercise of the right to strike under Article
28 an activity aimed at the destruction or greater limitation of an employers
freedom under Article 16 to conduct a business in accordance with Community law and national laws and practices? Article 52(1) is intended to
help resolve this conundrum.243 Under that provision such limitations are
subject to the proportionality principle and will only be permitted if they
238

See the explanatory note, CHARTE 4473/00, CONVENT 49, p 50.

See the concern expressed by the European Parliaments representatives at the Convention, CHARTE 4199/00, CONTRIB 80, point 12 and considerations F and R of the preamble. Discussed by J Bering Liisberg, Does the EU Charter of Fundamental Rights Threaten
the Supremacy of Community Law? (2001) 38 Common Market Law Review 1171 at 1173.
240
Ibid at 1194.
241
Art 17 ECHR. See the explanatory note, CHARTE 4473/00, CONVENT 49, p 51.
242
See Craven, n 83 above at 87.
243
See the explanatory note, CHARTE 4473/00, CONVENT 49, p 19.
239

540 The EU Charter of Fundamental Rights

are necessary and genuinely meet objectives of general interest recognised
by the Union or they need to protect the rights and freedoms of others.
However, as Article 28 contains an identical limitation to that contained in
Article 16 such arguments are somewhat circular.
Whilst Articles 5154 have been drafted on the basis that the Charter
will eventually enter into legal force, they also help us to determine its
effects as a high-level soft law proclamation. According to the Commission,
the Charter will become mandatory through the Courts interpretation of
it as belonging to the general principles of law.244 Such an interpretation
is certainly consistent with Articles 51 and 53. To date, however, the Court
has exercised extreme caution when the Charter has been raised in pleadings. Indeed the solitary reference to the Charter in a judgment has been in
a competition case concerning the procedural fairness of the Commissions
rules for dealing with complaints.245 When giving judgment the Court of
First Instance applied the Charter to affirm the rights of the individual to
both good administration246 and an effective remedy.247 The Courts AGs
have been less reticent, issuing several opinions where the primary role of
the Charter as a tool for interpreting and affirming established rights and
making them visible has been emphasised.
For example, in BECTU248 the Court was asked to consider the validity
of a trade union challenge to a UK law that denied employees the right to
accrue paid annual leave until after the first 13 weeks of their employment.
Was this rule compatible with the right of every worker to paid leave under
Article 7(1) of the Working Time Directive?249 The trade union argued that
many employees in the entertainment sector were unable to exercise their
right to paid leave because they were employed for periods of less than 13
weeks at a time. The UK pointed to the fact that Article 7(1) of the Directive operates in accordance with the conditions for entitlement to, and
granting of, such leave laid down by national legislation and/or practice.
This formulation, which is strikingly similar to the rider added to several
of the provisions in the Solidarity Chapter, is not contained in Article 31(2)
of the Charter, which simply refers to the right of every worker . . . to an
annual period of paid leave. In his opinion AG Tizzano drew on the
Charter thus:250
Admittedly . . . the Charter . . . has not been recognised as having genuine legislative
scope in the strict sense. In other words, formally, it is not in itself binding. However
244

COM(2000) 644, para 10.

Case T54/99, max.mobil Telekommunikation Service GmbH v Commission [2002]
ECR II (nyr) judgment of 30 Jan 2002.
246
Art 41(1).
247
Art 47.
248
Case C173/99, R v Secretary of State for Trade and Industry, ex parte BECTU [2001]
ECR I4881. For the background and facts of the case, see ch 5.
249
Dir 93/104/EC, OJ 1993, L307/18.
250
Opinion, paras 278. Emphasis added.
245

The Legal Scope of the Charter

541

. . . the fact remains that it includes statements which appear in large measure to
reaffirm rights which are enshrined in other instruments . . .
I think therefore that, in proceedings concerned with the nature and scope of a
fundamental right, the relevant statements of the Charter cannot be ignored: in
particular we cannot ignore its clear purpose of serving, where its provisions so
allow, as a substantive point of reference for those involvedMember States, institutions, natural and legal personsin the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation
of the fact that the right to paid annual leave constitutes a fundamental right.

In the light of the wording in the Charter, and by reference to other international instruments,251 the AG advised that the right to paid leave is
located among workers fundamental rights. It follows that the right to paid
leave in the Directive is an automatic and unconditional right granted
to every worker.252 The reference in the Directive to national laws and
practices concerning the conditions for entitlement means that, although
Member States have some latitude in defining the arrangements for the
enjoyment of paid leave, it does not permit national rules that negate that
right253 or affect its scope.254 In its judgment the Court agreed with the AGs
interpretation of the Directive but did not refer to the Charter. Therefore,
although the clear wording in the Charter affirmed the right to paid leave
and helped to guide the AG and, by implication, the Court, it was not
regarded as an essential point of reference.
While BECTU provides a glimpse of the interpretative potential of the
Charter, its limitations have been revealed in Bowden,255 where the Court
was asked to consider the scope of the Working Time Directive in a case
involving non-mobile workers in the transport sector who were excluded
from its provisions.256 Neither the AG nor the Court referred to the Charter
even though the legislative exclusion denied the workers in question the
right to paid annual leave that had been deemed automatic and unconditional by the same AG in BECTU. The explanation for this is twofold.
First, the Court was acting in deference to the Community legislature that
had recently adopted a Directive that would extend the scope of the Directive to cover non-mobile transport workers.257 Secondly, notwithstanding
the unconditional wording of Article 31(2), the general provision in Article
52(2) effectively precludes the Court from applying the Charter in these
circumstances because it can only be exercised under the conditions and
251
Para 23. The AG referred to Art 24 of the Universal Declaration of Human Rights; Art
2(3) ESC; and Art 7(d) of the UN Charter on Economic, Social and Cultural Rights.
252
Paras 2930.
253
Paras 345.
254
Paras 3945.
255
Case C133/00, Bowden and others v Tuffnells Parcels Express Ltd [2001] ECR I7031.
256
Art 1(3) of Dir 93/104.
257
Dir 2000/34/EC, OJ 2000, L195/41.

542

The EU Charter of Fundamental Rights

within the limits defined by the Treaties. The same logic would apply even
if the Charter were legally binding.
Nevertheless, even in its present form, the Charter will have to be taken
into account for, as AG Lger observed in Hautala:258
. . . aside from any considerations about its legislative scope, the nature of the rights
set down in the Charter of Fundamental Rights precludes it from being regarded as
merely a list of purely moral principles without any consequences . . . The Charter
has undeniably placed the rights which form its subject-matter at the highest levels
of values common to the Member States . . .
As the solemnity of its form and the procedure which led to its adoption would give
one to assume, the Charter was intended to constitute a privileged instrument for
identifying fundamental rights. It is a source of guidance as to the true nature of
the Community rules of positive law.

Moreover, as AG Mischo noted in his opinion in Booker Aquaculture, the

Charter:259
. . . constitutes the expression, at the highest level, of a democratically established
political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order.

These observations highlight the importance of the Charter and its unique
place in the hierarchy of Community soft law. As de Witte260 observes,
the natural temptation of lawyers is to dismiss the Charter as a mere
political declaration and give unquestioned preference to a legally binding
document. Such a temptation must be firmly resisted for several reasons.
First, unlike the Social Charter, the Charter of Fundamental Rights is
both an inter-institutional declaration and has the unanimous endorsement
of the Member States. In addition, it has the cachet of legitimacy bestowed
by a drafting Convention dominated by parliamentarians intended to
engage with civil society and, above all, to be taken seriously.261 Secondly,
the Charter serves to affirm and crystallise262 the content of the catalogue
of fundamental rights referred to in, inter alia, Article 6 [ex F] TEU and
Article 136 [ex 117] EC. Therefore, it places an interpretative obligation
on the Courtthat will be strengthened if the Charter enters into legal
forceto affirm, within the scope of EU law, the existence of justiciable
social rights that may have, hitherto, had an uncertain legal footing. Hence,
the Charter forms part of the acquis, even though it is not binding in itself,
258
Case C353/99P, Council v Hautala [2001] ECR (nyr) paras 803 of the AGs opinion
delivered on 10 July 2001.
259
Cases C20/00 and 64/00, Booker Aquaculture Ltd & Hydro Seafood GSP Ltd v The
Scottish Ministers [2002] ECR (nyr) para 126 of the AGs opinion delivered on 20 Sept 2001.
260
De Witte (2001, Maastricht Journal) n 53 above at 83.
261
See de Brca (2001, European Law Review) n 18 above at 132.
262
For the application of this concept, see O Kahn-Freund, The European Social Charter
in F Jacobs (ed) European Law and the Individual (North-Holland, Amsterdam, 1976)
181211 at 19798.

Conclusion 543
because it clarifies and designates those fundamental rights that constitute
the essence of the common constitutional traditions of the Member
States.263 Thirdly, it places a responsibility on each of the EU institutions
and the Member States, acting within their respective competences, to
develop a fundamental rights culture within the Union.264 Fourthly, it
provides a point of reference for individuals who wish to rely on the
values proclaimed in the Charter to support the exercise of their existing
Community law rights.

V CONCLUSION

From the preceding analysis it is clear that the EU Charter of Fundamental Rights, whatever its ultimate legal status, has many flaws. The Solidarity Chapter offers a highly selective and incomplete list of fundamental
social rights that distinguishes between enforceable rights, many of which
are conditional, and recognition of vague principles.265 The peoples of
Europe are offered tantalising glimpses of rights that are, at once, visible
but unattainable. For the EU institutions, the Charter creates an obligation
to promote each of the enumerated rights but denies them the capacity
to extend their powers or tasks to secure its objectives. At the level of the
individual, the Charter neither directly affects workers and/or citizens
social rights, nor does it guarantee basic social entitlements. Member States
will remain free to pursue independent human rights policies and can pick
and choose their international obligations. Fundamental rights hover over
the Unions activities but their final resting place in the EU constitutional
settlement has yet to be determined.
Despite these limitations, the Charter has the potential to add a new
dimension to the post-Nice process of constitutionalising the Union.
Firstly, although the results to date have been inconclusive, the Charter may
yet add value to the protection of fundamental rights by the Court. For
the first time at Union level a wide range of economic and social rights have
been defined as both indivisible and justiciable.266 The Courts approach to
applying fundamental rights has been highly selective.267 With the exception of the principles of equality and non-discrimination, social rights have,
hitherto, been perceived as less fundamental268 and have assumed a secondary position in the Courts catalogue of judicial protection.269 Only on
263

See Lenaerts and De Smijter, n 7 above at 299.

See Shaw, n 6 above at 199.
See Editorial Comments: The EU Charter of Fundamental Rights still under discussion
(2001) 38 Common Market Law Review 1 at 3.
266
See Betten, n 11 above at 156.
267
See G de Brca, The Role of Equality in European Law in A Dashwood and S OLeary
(eds) The Principle of Equal Treatment in E.C. Law (Sweet & Maxwell, London, 1997) 1334.
268
See de Brca in Shaw and More, n 23 above at 51.
269
See Poiares Maduro in Shaw, n 12 above at 338.
264
265

544 The EU Charter of Fundamental Rights

a handful of occasions has the Court made direct reference to the ESC and
ILO conventions.270 The Charter has made social rights more visible and,
in the process, has altered the hierarchy of rights recognised by the Union.
The challenge for the Court is to adjust its vision to reflect this new reality
by extending the reach of its jurisprudence in order to take full account
of fundamental social rights derived from the ECHR, the ESC and other
sources now recognised by the Charter as part of the common values of
the Union and the Member States.271
Secondly, by placing fundamental rights at the core of the EUs supranational order,272 the Charter mainstreams the common values that it
expounds throughout its activities. As with the Social Charter, the
adoption of the Charter of Fundamental Rights may serve as a catalyst or
a reflex273 for legislative and programmatic action at the EU level where
it can be justified on the grounds of subsidiarity. Undoubtedly the proclamation of the Charter helped to add impetus to the parallel process of
adopting the Commissions anti-discrimination package.274 Moreover,
despite its deficiencies, the inclusion of a Solidarity Chapter in the Charter,
co-existing with an autonomous Social Chapter in the EC Treaty conveys
a message that social policy can no longer be marginalised. Just as the Social
Policy Agenda has provided the EU with a rationale based on the indissoluble link between economic strength and rising social standards, the
Charter offers a transcendent vision of a modern European ius commune
based on a coherentif not wholly completestatement of fundamental
social values.275 In order to make the Charter effective, however, the
Convention on the Future of the European Union will have to consider,
not only, its placement within a putative European constitution, but also,
the establishment of supervisory mechanisms such as an independent committee of experts empowered to receive complaints, issue reports and make
recommendations.276
Thirdly, the recognition of a range of social entitlements in the Charter,
although expressed in general terms, represents an important step in the
process of constructing a European social constitution that would combine
justiciable social rights with a guarantee of decent levels of universal social
protection. Nevertheless, the rhetoric of social solidarity can only be given
substance if further steps are taken. For some the only viable solution lies
270
See for example, Case 149/77, Defrenne v Sabena III [1978] ECR 1365; and Case 24/86,
Blaizot v University of Lige [1988] ECR 379.
271
See de Witte (2001, Maastricht Journal) n 53 above at 85; and Gijzen, n 14 above at
42.
272
See von Bogdandy, n 57 above at 1333.
273
See Kahn-Freund, n 262 above at 184. See generally, R Rogowski and T Wilthagen (eds)
Reflexive Labour Law (Kluwer, Deventer, 1994).
274
See ch 9.
275
See the case made by Hepple (1995, Current Legal Problems) n 96 aobve at 60.
276
See Hepple, ibid and Weiss, n 55 above.

Conclusion 545
with a transfer of competence or a reallocation of functions. Poiares
Maduro277 has presented a powerful case for the idea of European social
entitlements arising from a criterion of distributive justice. Such a notion builds on the earlier conception of a European Sozialstaat278 and
Habermas279 thesis that it is no longer possible for the nation state to guarantee the mechanisms and instruments of social solidarity upon which the
welfare state has been founded. However, there is little evidence to suggest
that a centralised solution based on the EU exercising an independent
redistributive function280 would be effective, desirable or achievable.281
Rather, an alternative, more diverse and localised approach must be sought,
utilising soft law tools such as the open method of co-ordination and partnerships with local actors and networks, to enable individuals and governmental bodies to accept a positive duty to maintain and adapt a European
model of social entitlements by reference to the yardsticks in the Charter.
The proclamation of the Charter of Fundamental Rights marks the
latest stage of a process of realignment of market freedoms and social
rights within the European integration project. In itself, the Charter may
yet prove to be an ephemeron, short-lived and of limited use. As part of
a broader canvas, however, the Charter has the potential to reinforce a
distinctively European conception of social solidarity, in which European
citizenship can be envisioned as not merely a metaphor but a source
of rights.282 Post-Amsterdam, European integration is no longer a simple
function of the market but the construction of a European social constitution has only just begun.
277

See Poiares Maduro in Shaw, n 12 above at 34049.

See S Leibfried and P Pierson, Prospects for Social Europe (1992) 20 Politics & Society
333 at 336.
279
See J Habermas, The Postnational Constellation (Polity Press, London, 2000). Discussed
by Poiares Maduro in Shaw, n 12 above at 347.
280
Poiares Maduro, ibid at 343.
281
See the Declaration on the Future of the European Union, issued at the Laeken
European Council of 14/15 Dec 2001, where the European Council warned, in Part II, against
any attempts to redefine EU competences leading to a creeping expansion of the competence
of the Union or an encroachment upon the exclusive competence of the Member States.
282
See Reich, n 66 above.
278

Bibliography
Abbott K, The European Trade Union Confederation: Its Organisation and
Objectives in Transition (1997) 35 Journal of Common Market Studies 465
Abbott K and Snidal D, Hard and Soft Law in International Governance (2000)
54 International Organization 421
Abrams K, Complex Claimants and Reductive Moral Judgments: New Patterns in
the Search for Equality (1996) University of Pittsburg Law Review 337
Adinolfi A, The Implementation of Social Policy Directives Through Collective
Agreements (1988) 25 Common Market Law Review 291
Allott P, European Governance and the Re-branding of Democracy (2002) 27
European Law Review 60
, The Concept of European Union (1999) 2 Cambridge Yearbook of
European Legal Studies 31
, The European Community is Not the True Community (1991) 100 Yale Law
Journal 2485
Alston P (ed) The EU and Human Rights (Oxford: OUP, 1999)
Alston P and Weiler J, An Ever Closer Union in Need of a Human Rights Policy:
The European Union and Human Rights in Alston (1999) 366
Amy Elman R, The Limits of Citizenship: Migration, Sex Discrimination and SameSex Partners in EU Law (2000) 28 Journal of Common Market Studies 729
Armstrong K, Civil Society and the White PaperBridging or Jumping the Gaps?
in Joerges et al (2001) Part 10
, Governance and the Single European Market in Craig and de Brca (1999)
745789
, Tales of the Community: sexual orientation discrimination and EC law
(1998) 20 Journal of Social Welfare and Family Law 455
Arnull A, Editorial: From Opinion 2/94 to the Future of Europe (2002) 27
European Law Review 1
, The European Union and its Court of Justice (Oxford: OUP, 1999)
, The European Court and Judicial Objectivity: A Reply to Professor Hartley
(1996) 112 Law Quarterly Review 411
, Does the Court of Justice have inherent jurisdiction? (1990) 27 Common
Market Law Review 683
, The legal status of recommendations (1990) 15 European Law Review 318
, The Incoming Tide: Responding to Marshall [1987] Public Law 383
, Article 119 and Equal Pay for Work of Equal Value (1986) 11 European
Law Review 200
Ashiagbor D, EMU and the Shift in the European Labour Law Agenda: From
Social Policy to Employment Policy (2001) 7 European Law Journal 311
Atkinson R and Davoudi S, The Concept of Social Exclusion in the European
Union: Context, Development and Possibilities (2000) 38 Journal of Common
Market Studies 427

548 Bibliography
Aust A, The Theory and Practice of Informal International Instruments (1986) 35
International and Comparative Law Quarterly 787
Baldwin R and Daintith T, The European Framework in Baldwin R and
Daintith T (eds) Harmonization and Hazard: Regulating Workplace Health and
Safety in the European Community (London: Graham and Trotman, 1992) 117
Ball S, The European Employment Strategy: The Will but not the Way? (2001)
30 Industrial Law Journal 353
Bamforth N, Sexual Orientation Discrimination after Grant v South West Trains
(2000) 63 Modern Law Review 694
Barnard C, EC Employment Law, 2nd edn (Oxford: OUP, 2000)
, Flexibility and Social Policy in de Brca and Scott (2000) 197217
, Social dumping and the race to the bottom: some lessons for the European
Union from Delaware? (2000) 25 European Law Review 57
, Article 13: Through the Looking Glass of Union Citizenship in OKeeffe and
Twomey (1999) 375394
, EC Social Policy in Craig and de Brca (1999) 479516
, The Principle of Equality in the Community Context: P, Grant, Kalanke and
Marschall: Four Uneasy Bedfellows? (1998) 57 Cambridge Law Journal 352
, P v S: Kite Flying or a New Constitutional Approach? in Dashwood and
OLeary (1997) 5979
, The Economic Objectives of Article 119 in Hervey and OKeeffe (1996)
321334
, A European Litigation Strategy: the Case of the Equal Opportunities Commission in Shaw and More (1995) 253272
, A Social Policy for Europe: Politicians 1:0 Lawyers (1992) 8 International
Journal of Comparative Labour Law and Industrial Relations 15
Barnard C, Dashwood A and Hepple B, The ECJs Working Time Judgment: The
Social Market Vindicated (Cambridge: CELS Occasional Paper No 2, 1997)
Barnard C and Deakin S, In Search of Coherence: Social Policy, the Single Market
and Fundamental Rights (2000) 31 Industrial Relations Journal 331
and , Social Policy in Search of a Role: Integration, Cohesion and
Citizenship in Caiger A and Floudas D (eds) 1996 Onwards: Lowering the
Barriers Further (Chichester: Wiley, 1996) 177195
Barnard C, Deakin S and Hobbs R, Capabilities and Rights: An Emerging Agenda
for Social Policy? (2001) 32 Industrial Relations Journal 464
Barnard C and Hepple B, Substantive Equality (2000) 59 Cambridge Law
Journal 562
and , Indirect Discrimination: Interpreting Seymour-Smith (1999) 58
Cambridge Law Journal 399
Barnard C and Hervey T, Softening the approach to quotas: positive action after
Marschall (1998) 20 Journal of Social Welfare and Family Law 333
and , European Union Employment and Social Policy Survey 1996 and
1997 (1997) 17 Yearbook of European Law 435
Baxter R, International Law in Her Infinite Variety (1980) 29 International and
Comparative Law Quarterly 549
Bell M, Anti-discrimination Law after Amsterdam in Shaw (2000) 157170
, Article 13 EC: The European Commissions Anti-discrimination Proposals
(2000) 29 Industrial Law Journal 79

Bibliography

549

, Shifting Conceptions of Sexual Discrimination at the Court of Justice: from

P v S to Grant v SWT (1999) 5 European Law Journal 63
, The New Article 13 EC Treaty: A Sound Basis for European Antidiscrimination Law? (1999) 6 Maastricht Journal 5
Bell M and Waddington L, The 1996 Intergovernmental Conference and the
Prospects of a Non-Discrimination Treaty Article (1996) 25 Industrial Law
Journal 320
Bellace J, The ILO Declaration of Fundamental Principles and Rights at Work
(2001) 17 International Journal of Comparative Labour Law and Industrial Relations 269
Bercusson B, Trade Union Rights in EU Law in Snyder (2000) 195209
, European Labour Law in Context: A Review of the Literature (1999) 5
European Law Journal 87
, Democratic Legitimacy and European Labour Law (1999) 28 Industrial Law
Journal 153
, European Labour Law (London: Butterworths, 1996)
, The Dynamic of European Labour Law after Maastricht (1994) 23 Industrial Law Journal 1
, Social Policy at the Crossroads: European Labour Law after Maastricht in
Dehousse (1994) 149186
, Collective Bargaining and the Protection of Social Rights in Ewing et al
(1994) 106126
, Working Time in Britain, Towards a European Model, Part I (London:
Institute of Employment Rights, 1993)
, Maastricht: a fundamental change in European labour law (1992) 23 Industrial Relations Journal 177
, Fundamental Social and Economic Rights in the European Community in
Cassesse A, Clapham A and Weiler J (eds) Human Rights and the European Community: Methods of Protection (Baden-Baden: Nomos, 1991) 195291
, The European Communitys Charter of the Fundamental Social Rights of
Workers (1990) 53 Modern Law Review 624
Bercusson B, Deakin S et al, A Manifesto for Social Europe (1997) 3 European
Law Journal 189
Bercusson B and van Dijk J, The Implementation of the Protocol and Agreement
on Social Policy of the Treaty on European Union (1995) 11 International
Journal of Comparative Labour Law and Industrial Relations 3
Bering Liisberg J, Does the EU Charter of Fundamental Rights Threaten the
Supremacy of Community Law? (2001) 38 Common Market Law Review 1171
Berman G, Taking Subsidiarity Seriously (1994) 94 Columbia Law Review 332
Bernard N, Legitimising EU Law: Is the Social Dialogue the Way Forward? Some
Reflections Around the UEAPME Case in Shaw (2000) 279302
Besselink L, The Member States, the National Constitutions and the Scope of the
Charter (2001) 8 Maastricht Journal 68
Betten L, The EU Charter on Fundamental Rights: a Trojan Horse or a Mouse?
(2001) 17 International Journal of Comparative Labour Law and Industrial
Relations 151
, The Democratic Deficit of Participatory Democracy in Community Social
Policy (1998) 23 European Law Review 20

550 Bibliography
Betten L, (ed) The Future of European Social Policy (Deventer: Kluwer, 1989)
, Prospects for a Social Policy of the European Community and its Impact on
the Functioning of the European Social Charter in Betten (1989) 101141
Betten L and Shrubsall V, The Concept of Positive Sex Discrimination in Community LawBefore and After the Treaty of Amsterdam (1998) 14 International
Journal of Comparative Labour Law and Industrial Relations 65
and Grief N, EU Law and Human Rights (Harlow: Longman, 1998)
Beveridge F and Nott S, A Hard Look at Soft Law in Craig and Harlow (1998)
285309
and , Gender AuditingMaking the Community Work for Women in
Hervey and OKeeffe (1996) 383398
Beveridge F, Nott S and Stephen K, Addressing Gender in National and
Community Law and Policy-making in Shaw (2000) 135154
Biagi M, The Implementation of the Amsterdam Treaty with Regard to Employment: Co-ordination or Convergence? (1998) 14 International Journal of Comparative Labour Law and Industrial Relations 325
Bieber R and Amarelle C, Simplification of European Law in Snyder (2000)
219241
Bieber R, Jacqu J-P and Weiler J, An Ever Closer Union: A Critical Analysis of
the Draft Treaty Establishing the European Union (Luxembourg: European Communities, 1985)
Biondi A, The Court of Justice and certain national procedural limitations: not
such a tough relationship (1999) 36 Common Market Law Review 1271
Blanpain R (ed) Temporary Work and Labour Law (Deventer: Kluwer, 1993)
Blom J, Fitzpatrick B, Gregory J, Knegt R and OHare U, The Utilisation of
Sex Equality Litigation in the Member States of the European Community,
V/783/96-EN (Brussels: European Commission, 1996)
Boch C, Official: During Pregnancy, Females are Pregnant (1998) 23 European
Law Review 488
Booth C, Gender Mainstreaming in the European Union Toward a New Conception and Practice of Equal Opportunities, ESCR Seminar Series: The Interface
Between Public Policy and Gender Equality (Centre for Regional Economic and
Social Research, Sheffield Hallam University, 1999)
Bourn C, Amending the Collective Dismissals Directive: A Case of Rearranging
the Deckchairs? (1993) 9 International Journal of Comparative Labour Law and
Industrial Relations 227
Bradley K St C, Institutional Design in the Treaty of Nice (2001) 38 Common
Market Law Review 1095
, The European Parliament and Treaty Reform: Building Blocks and Stumbling
Blocks in OKeeffe and Twomey (1999) 123139
Brinkmann G, Lawmaking under the Social Chapter of Maastricht in Craig and
Harlow (1998) 239261
Britz G and Schmidt M, The Institutionalised Participation of Management and
Labour in the Legislative Activities of the European Community: A Challenge to
the Principle of Democracy under Community Law (2000) 6 European Law
Journal 45
Bruning G and Plantenga J, Parental Leave and Equal Opportunities: Experiences in Eight European Countries (1999) 9 Journal of European Social Policy
195

Bibliography

551

Burns T, Better lawmaking? An evaluation of lawmaking in the European

Community in Craig and Harlow (1998) 435453
Burrows N, Maternity Rights in EuropeAn Embryonic Legal Regime (1991) 11
Yearbook of European Law 273
Canor I, Equality for Lesbians and Gay Men in the European Community Legal
Orderthey shall be male and female? (2000) 7 Maastricht Journal 273
Caracciolo di Torella E, The Family Friendly Workplace: the EC Position
(2001) 17 International Journal of Comparative Labour Law and Industrial Relations 325
, Childcare, employment and equality in the European Community: first (false)
steps of the Court (2000) 25 European Law Review 310
, Recent Developments in Pregnancy and Maternity Rights (1999) 28 Industrial Law Journal 276
Caracciolo di Torella E and Masselot A, Pregnancy, Maternity and the
Organisation of Family Life: An Attempt to Classify the Case Law of the Court
of Justice (2001) 26 European Law Review 239
Caracciolo di Torella E and Reid E, The Changing Shape of the European
Family and Fundamental Rights (2002) 27 European Law Review 80
Caranta R, Government Liability after Francovich (1992) 52 Cambridge Law
Journal 272
Carter C and Scott A, Legitimacy and Governance Beyond the European Nation
State: Conceptualising Governance in the European Union in Bankowski Z and
Scott A, The European Union and its Order: The Legal Theory of European Integration (Oxford: Blackwell, 2000) 131147
Casey N, The European Social Charter and Revised European Social Charter in
Costello (2001) 5575
Cass D, The Word that Saves Maastricht? The Principle of Subsidiarity and the
Division of Powers within the European Community (1992) 29 Common Market
Law Review 1107
Cassell E, The Revised Directive on Equal Treatment for Men and Women in
Occupational Social Security SchemesThe Dog that Didnt Bark (1997) 26
Industrial Law Journal 269
Cecchini P, The European Challenge 1992: The Benefits of a Single Market
(Aldershot: Wildwood House, 1988)
Chalmers D, European Union Law Volume One: Law and EU Government
(Aldershot: Dartmouth, 1998)
Chalmers D and Szyszczak E, European Union Law, Volume Two: Towards a
European Polity? (Aldershot: Dartmouth, 1998)
Charpentier L, The European Court of Justice and the Rhetoric of Affirmative
Action (1998) 4 European Law Journal 167
Clapham A and Weiler J, Lesbians and Gay Men in the Community Legal Order
in Waaldijk and Clapham (1993) 1169
Clark J and Hall M, The Cinderella Directive? Employee Rights to Information
about Conditions Applicable to their Contract or Employment Relationship
(1992) 21 Industrial Law Journal 106
Closa C, The Concept of Citizenship in the Treaty on European Union (1992) 29
Common Market Law Review 1137
Cohen W, The Conseil dEtat: continuing convergence with the Court of Justice
(1991) 16 European Law Review 144

552 Bibliography
Colneric N, Making Equality Law More Effective: Lessons from the German
Experience (1996) 3 Cardozo Womans Law Journal 229
Conlon T, Industrial Democracy and EEC Company Law: A Review of the
Draft Fifth Directive (1975) 24 International and Comparative Law Quarterly
348
Convery J, State Liability in the United Kingdom after Brasserie du Pcheur
(1997) 34 Common Market Law Review 603
Coppel J and ONeill A, The European Court of Justice: Taking Rights Seriously?
(1992) 29 Common Market Law Review 669
Corbett R, The Treaty of Maastricht (Harlow: Longman, 1993)
Costello C (ed) Fundamental Social Rights: Current Legal Protection and the
Challenge of the EU Charter of Fundamental Rights (Dublin: Irish Centre for
European Law, 2001)
, The Legal Status and Legal Effect of the Charter of Fundamental Rights of
the European Union in Costello (2001) 127150
Craig P, Once more unto the breach: The Community, the State and Damages
Liability (1997) 113 Law Quarterly Review 67
, Francovich, Remedies and the Scope of Damages Liability (1993) 109 Law
Quarterly Review 595
Craig P and de Brca G (eds) The Evolution of EU Law (Oxford: OUP, 1999)
and , EC Law: Text, Cases and Materials, 2nd ed (Oxford: OUP, 1998)
Craig P and Harlow C (eds) Lawmaking in the European Union (London: Kluwer,
1998)
Craufurd Smith R, Remedies for Breaches of EC Law in National Courts: Legal
Variation and Selection in Craig and de Brca (1999) 287320
Craven M, A View from Elsewhere: Social Rights, the International Covenant and
the EU Charter of Fundamental Rights in Costello (2001) 7793
, The International Covenant on Economic, Social and Cultural Rights
(Oxford: Clarendon Press, 1995)
Crenshaw K, Demarginalizing the Intersection of Race and Sex: A Black Feminist
Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics
(1989) University of Chicago Legal Forum 139
Cromack V, The EC Pregnancy DirectivePrinciple or Pragmatism? (1993) 15
Journal of Social Welfare and Family Law 261
Crosby S, The Single Market and the Rule of Law (1991) 16 European Law
Review 451
Cullen H and Campbell E, The future of social policy-making in the European
Union in Craig and Harlow (1998) 262284
Curtin D, The Fundamental Principle of Open Decision-making and EU
(Political) Citizenship in OKeeffe and Twomey (1999) 7191
, Betwixt and Between: Democracy and Transparency in the Governance of
the European Union in Winter et al (1996) 95121
, The Constitutional Structure of the Union: A Europe of Bits and Pieces
(1993) 30 Common Market Law Review 17
, State Liability under Community Law: a New Remedy for Private Parties
(1992) 21 Industrial Law Journal 74
, Scalping the Community Legislator: Occupational Pensions after Barber
(1990) 27 Common Market Law Review 475

Bibliography

553

, Effective Sanctions and the Equal Treatment Directive: The Von Colson and
Harz Cases (1985) 22 Common Market Law Review 505
Curtin D and Dekker I, The EU as a Layered International Organization:
Institutional Unity in Disguise in Craig and de Brca (1999) 83136
Curtin D and van Ooik R, The Sting is Always in the Tail: The Personal Scope
of Application of the EU Charter of Fundamental Rights (2001) 8 Maastricht
Journal 102
and , Denmark and the Edinburgh Summit: Maastricht without Tears in
OKeeffe and Twomey (1994) 349365
Daalder H, The Consociational Democracy Theme (1974) 26 World Politics 606
Dahrendorf R, Der Moderne Soziale Konflikt (Stuttgart: DVA, 1992)
Dankert P, What Parliament for Europe? in Heukels et al (1998) 131138
Dashwood A, The Limits of European Community Powers (1996) 21 European
Law Review 113
Dashwood A and OLeary S (eds) The Principle of Equal Treatment in EC Law
(London: Sweet and Maxwell, 1997)
Dubler W, Instruments in EC Labour Law in Davies et al (1996) 151167
, The Employee Participation DirectiveA Realistic Utopia? (1977) 14
Common Market Law Review 17
Davies P, TransfersThe UK Will Have to Make Up Its Own Mind (2001) 30
Industrial Law Journal 231
, Posted Workers: Single Market or Protection of National Labour Law
Systems? (1997) 34 Common Market Law Review 571
, Taken to the Cleaners? Contracting Out of Services Yet Again (1997) 26
Industrial Law Journal 193
, The European Court of Justice, National Courts and the Member States in
Davies et al (1996) 95138
, Market Integration and Social Policy in the Court of Justice (1995) 24 Industrial Law Journal 49
, The Emergence of European Labour Law in McCarthy W (ed) Legal Intervention in Industrial Relations: Gains and Losses (London: Blackwell, 1993)
313359
, Acquired Rights, Creditors Rights, Freedom of Contract, and Industrial
Democracy (1989) 9 Yearbook of European Law 21
Davies P, Lyon-Caen A, Sciarra S and Simitis S (eds) European Community
Labour Law: Principles and Perspectives (Oxford: Clarendon Press, 1996)
Davies P and Wedderburn (Lord), The Land of Industrial Democracy (1977) 6
Industrial Law Journal 197
Deakin S, Labour Law as Market Regulation: the Economic Foundations of
European Social Policy in Davies et al (1996) 6293
Deakin S and Morris G, Labour Law (London: Butterworths, 2nd edn, 1998)
Deakin S and Reed H, The Contested Meaning of Labour Market Flexibility:
Economic Theory and the Discourse of European Integration in Shaw (2000)
7199
Deakin S and Wilkinson F, Rights vs Efficiency? The Economic Case for Transnational Labour Standards (1994) 23 Industrial Law Journal 289
Deards E, Curioser and Curioser? The Development of Member State Liability in
the Court of Justice (1997) 3 European Public Law 117

554 Bibliography
De Brca G, The Drafting of the European Union Charter of Fundamental Rights
(2001) 26 European Law Review 126
, Reappraising Subsidiaritys Significance after Amsterdam, Harvard Jean
Monnet Working Paper 7/99
, The Principle of Subsidiarity and the Court of Justice as an Institutional
Actor (1998) 36 Journal of Common Market Studies 217
, The Role of Equality in European Law in Dashwood and OLeary (1997)
1334
, National Procedural Rules and Remedies: The Changing Approach of the
Court of Justice in Lonbay and Biondi (1997) 3746
, The Quest for Legitimacy in the European Union (1996) 59 Modern Law
Review 349
, The Language of Rights and European Integration in Shaw and More (1995)
2954
, The Principle of Proportionality and its Application in EC Law (1993) 13
Yearbook of European Law 105
De Brca G and Scott J (eds) Constitutional Change in the EU: From Uniformity
to Flexibility (Oxford: Hart, 2000)
De Groot C, The Council Directive on the Safeguarding of Employees Rights in
the Event of Transfers of Undertakings: An Overview of Recent Case Law (1998)
35 Common Market Law Review 707
, The Council Directive on the Safeguarding of Employees Rights in the Event
of Transfers of Undertakings: An Overview of the Case Law (1993) 30 Common
Market Law Review 331
Dehousse F, The IGC Process and Results in OKeeffe and Twomey (1999)
93108
Dehousse, R, European Institutional Architecture After Amsterdam: Parliamentary System or Regulatory Structure? (1998) 35 Common Market Law Review
595
(ed) Europe After Maastricht: An Ever Closer Union? (Munich: Law Books in
Europe, 1994)
, From Community to Union in Dehousse (1994) 515
, Does Subsidiarity Really Matter? EUI Working Paper LAW No 92/32
(Florence: EUI, 1993)
, Integration v Regulation? Social Regulation in the European Community
(Florence: EUI, 1992)
De la Porte C, Pochet P and Room G, Social benchmarking, policy making and
new governance in the EU (2001) 11 Journal of European Social Policy 291
Demaret P, The Treaty Framework in OKeeffe and Twomey (1994) 311
Den Boer M, Guggenbhl A and Vanhoonacker S (eds) Coping with Flexibility and
Legitimacy after Amsterdam (Maastricht: EIPA, 1998)
Desmond H, Older and GreyerThird Age Workers and the Labour Market
(2000) 16 International Journal of Comparative Labour Law and Industrial Relations 235
De Witte B, The Legal Status of the Charter: Vital Question or Non-Issue (2001)
8 Maastricht Journal 81
, The Past and Future Role of the European Court of Justice in the Protection
of Human Rights in Alston (1999) 859897

Bibliography

555

, The Pillar Structure and the Nature of the European Union: Greek Temple
or French Gothic Cathedral? in Heukels et al (1998) 5168
Docksey C, The Principle of Equality Between Women and Men as a Fundamental Right under Community Law (1991) 20 Industrial Law Journal 258
, Employee Information and Consultation Rights in the Member States of the
European Communities (1987) 7 Comparative Labor Law Journal 32
, Information and Consultation of Employees: The United Kingdom and the
Vredeling Directive (1986) 49 Modern Law Review 282
Docksey C and Fitzpatrick B, The Duty of National Courts to Interpret Provisions of National Law in Accordance with Community Law (1991) 20 Industrial Law Journal 113
Donovan K, Sexual Divisions in Law (London: Wiedenfield and Nicholson, 1985)
Dougan M, The Francovich right to reparation: The contours of Community
remedial competence (2000) 6 European Public Law 103
, The Equal Treatment Directive: Retaliation, Remedies and Direct Effect
(1999) 24 European Law Review 664
Douglas-Scott S, Affirmative Action in the US Supreme Court: the Adarand
casethe Final Chapter [1997] Public Law 43
Dummett A, The Starting Line: A Proposal for a Draft Council Directive Concerning the Elimination of Racial Discrimination (1994) 20 New Community
530
Economides K and Weiler J, Accession of the Communities to the European Convention on Human Rights: Commission Memorandum (1979) 42 Modern Law
Review 683
Edward D, Judicial ActivismMyth or Reality? in Campbell A and Voyati M
(eds) Legal Reasoning and Judicial Interpretation of European Law (Gosport:
Trenton Publishing, 1996) 2967
Ehlermann C-D, Increased Differentiation or Stronger Uniformity in Winter
et al (1996) 2750
, The Internal Market Following the Single European Act (1987) 24 Common
Market Law Review 361
Eicke T, European Charter of Fundamental RightsUnique Opportunity or
Unwelcome Distraction [2000] European Human Rights Law Review 280
Ellis E, The Recent Jurisprudence of the Court of Justice in the Field of Sex
Equality (2000) 37 Common Market Law Review 1403
, European Community Sex Equality Law, 2nd edn (Oxford: Clarendon Press,
1998)
, Recent Developments in European Community Sex Equality Law (1998) 35
Common Market Law Review 379
, Equal Pay for Work of Equal Value: The United Kingdoms Legislation
Viewed in the Light of Community Law in Hervey and OKeeffe (1996) 719
, The Definition of Discrimination in European Community Sex Equality Law
(1994) 19 European Law Review 563
, Protection of Pregnancy and Maternity (1993) 22 Industrial Law Journal 63
, Parents and Employment: An Opportunity for Progress (1986) 15 Industrial
Law Journal 97
Emiliou N, The Principle of Proportionality in European Law (London: Kluwer,
1996)

556 Bibliography
Emiliou N, State Liability under Community Law: Shedding More Light on the
Francovich Principle? (1996) 21 European Law Review 399
, Subsidiarity: an effective barrier against the enterprises of ambition? (1992)
17 European Law Review 383
Everling U, Reflections on the Structure of the European Union (1992) 29
Common Market Law Review 1056
Everson M, The Legacy of the Market Citizen in Shaw and More (1995) 7390
Evju S, Collective Agreements and Competition Law The Albany Puzzle, and van
der Woude (2001) 17 International Journal of Comparative Labour Law and
Industrial Relations 165
Ewing K, Gearty C and Hepple B (eds) Human Rights and Labour Law: Essays
for Paul OHiggins (London: Mansell, 1994)
Fairhurst J, SIMAPInterpreting the Working Time Directive (2001) 30 Industrial Law Journal 236
Falkner G, The Maastricht Protocol on Social Policy: Theory and Practice (1996)
6 Journal of European Social Policy 1
Fenwick H, From Formal to Substantive Equality: the Place of Affirmative Action
in European Union Sex Equality Law (1998) 4 European Public Law 507
, Special Protections for Women in European Union Law in Hervey and
OKeeffe (1996) 6380
Fenwick H and Hervey T, Sex Equality in the Single Market: New Directions
for the European Court of Justice (1995) 32 Common Market Law Review 443
Fitzpatrick B, European Union Law and the Council of Europe Conventions in
Costello (2001) 95108
, Converse Pyramids and the EU Social Constitution in Shaw (2000) 303324
, Straining the Definition of Health and Safety (1997) 26 Industrial Law
Journal 115
, Community Social Law after Maastricht (1992) 21 Industrial Law Journal
199
, The Effectiveness of Equality Law Remedies: A European Community Law
Perspective in Hepple and Szyszczak (1992) 6785
, Equality in Occupational Pensionsthe New Frontiers after Barber (1991)
54 Modern Law Review 271
Flanders A, Management and Unions: the Theory and Reform of Industrial Relations (London: Faber, 1970)
Flynn J, How Well Will Article 100a(4) Work? A Comparison with Article 93
(1987) 24 Common Market Law Review 689
Flynn L, Whatever Happened to Emmott? The Perfecting of Community Rules on
Time Limits in Kilpatrick et al (2000) 5167
, The Implications of Article 13 ECAfter Amsterdam Will Some Forms of
Discrimination be More Equal Than Others? (1999) 36 Common Market Law
Review 1127
, Equality between Men and Women in the Court of Justice (1998) 18 Yearbook of European Law 259
, The Body Politic(s) of EC Law in Hervey and OKeeffe (1996) 301320
, Gender Equality Laws and Employers Dress Codes (1995) 24 Industrial
Law Journal 255
Franssen E, Implementation of European Collective Agreements: Some Troublesome Issues (1998) 5 Maastricht Journal 53

Bibliography

557

Franssen E and Jacobs A, The Question of Representativity in the European Social

Dialogue (1998) 35 Common Market Law Review 1295
Fredman S, Equality: A New Generation? (2001) 30 Industrial Law Journal 145
, Affirmative Action and the European Court of Justice: A Critical Analysis
in Shaw (2000) 171195
, Social Law in the European Union: The Impact of the Lawmaking Process
in Craig and Harlow (1998) 386411
, Reversing Discrimination (1997) 113 Law Quarterly Review 575
, Labour Law in Flux: the Changing Composition of the Workforce (1997)
26 Industrial Law Journal 337
, The Poverty of Equality: Pensions and the ECJ (1996) 25 Industrial Law
Journal 91
, European Community Discrimination Law: A Critique (1992) 21 Industrial
Law Journal 119
Fredman S and Szyszczak E, The Interaction of Race and Gender in Hepple and
Szyszczak (1992) 214226
Freedland M, Vocational Training in EC Law and PolicyEducation, Employment or Welfare? (1996) 25 Industrial Law Journal 110
, Employment Protection: Redundancy Procedures and the EEC (1976) 5
Industrial Law Journal 24
Gaja G, Opinion 2/94, Accession by the Communities to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1996) 33
Common Market Law Review 973
Gardner J, On the Ground of Her Sex(uality) (1998) 18 Oxford Journal of Legal
Studies 167
George S, An Awkward Partner: Britain in the European Community, 2nd ed
(Oxford: OUP, 1994)
Germanotta P and Novitz T, Globalisation and the Right to Strike: The Case for
European-Level Protection of Secondary Action (2002) 18 International Journal
of Comparative Labour Law and Industrial Relations 67
Giddens A, The Third Way (Cambridge: Polity Press, 1998)
, Beyond Left and Right: The Future of Radical Politics (Cambridge: Polity
Press, 1994)
Gijzen M, The Charter: A Milestone for Social Protection in Europe? (2001) 8
Maastricht Journal 33
Goetschy J, The European employment strategy from Amsterdam to Stockholm:
Has it reached its cruising speed? (2001) 32 Industrial Relations Journal 401
, The European Employment Strategy: Genesis and Development (1999) 5
European Journal of Industrial Relations 117
Gold M, Cressey P and Gill C, Employment, employment, employment: is
Europe working? (2000) 31 Industrial Relations Journal 275
Gold M and Hall M, Statutory European Works Councils: The Final Countdown? (1994) 25 Industrial Relations Journal 177
Goldsmith (Lord), A Charter of Rights, Freedoms and Principles (2001) 38
Common Market Law Review 1201
Gormley L, Reflections on the Architecture of the European Union after the Treaty
of Amsterdam in OKeeffe and Twomey (1999) 5770
Grahl J and Teague P, 1992The Big Market: The Future of the European
Community (London: Lawrence and Wishart, 1990)

558 Bibliography
Grant C, Delors: Inside the House that Jacques Built (London: Nicholas Brealey,
1994)
Gravells N, State Liability in Damages for Breach of European Community Law
[1996] Public Law 567
Gregory J, Sexual Harassment: the Impact of EU Law in the Member States in
Rossilli (2000) 175191
Guild E, The EC Directive on Race Discrimination: Surprises, Possibilities and
Limitations (2000) 29 Industrial Law Journal 416
Haas E, The Uniting of Europe: Political, Social and Economic Forces 19501957
(California: Stanford, 1968)
Hakim C, Segregated and Integrated Occupations: A New Approach to Analysing
Social Change (1993) 9 European Sociological Review 289
Harlow C, A Common European Law of Remedies in Kilpatrick et al (2000) 6983
, European Administrative Law and the Global Challenge in Craig and de
Brca (1999) 261285
, Francovich and the Problem of the Disobedient State (1996) 2 European
Law Journal 199
Hardy S and Painter R, The New Acquired Rights Directive and its Implications
for European Employee Relations in the Twenty-First Century (1999) 6
Maastricht Journal 366
Harris A, Race and Essentialism in Feminist Legal Theory (1990) 42 Stanford
Law Review 581
Harris D, The European Social Charter, 8th ed (Charlottesville: University of
Virginia Press, 1984)
Harrison V, Using EC Law to Challenge Sexual Orientation Discrimination at
Work in Hervey and OKeeffe (1996) 267280
Hartley T, The European Court, Judicial Objectivity and the Constitution of the
European Union (1996) 112 Law Quarterly Review 95
Heath E, The Course of My Life (London: Hodder and Stoughton, 1998)
Henderson D, The UK Presidency: An Insiders View (1998) 36 Journal of
Common Market Studies 563
Hepple B, The EU Charter of Fundamental Rights (2001) 30 Industrial Law
Journal 225
, Equality and Discrimination in Davies et al (1996) 237259
, Social Values and European Law [1995] Current Legal Problems 39
, European Social DialogueAlibi or Opportunity (London: Institute of
Employment Rights, 1993)
, Has Twenty-five Years of the Race Relations Acts in Britain Been a Failure
in Hepple and Szyszczak (1992) 1934
, The Implementation of the Community Charter of Fundamental Social
Rights (1990) 53 Modern Law Review 643
, Main Shortcomings and Proposals for Revision of Council Directive 77/187
(Brussels: European Commission, 1990)
, Social Rights in the European Economic Community: A British Perspective
(1990) 11 Comparative Labor Law Journal 425
, The Crisis in EEC Labour Law (1987) 16 Industrial Law Journal 77
(ed) The Making of Labour Law in Europe: A Comparative Study of Nine
Countries up to 1945 (London and New York: Mansell, 1987)

Bibliography

559

, Harmonisation of Labour Law in the European Communities in Adams

J (ed) Essays for Clive Schmitthoff (Abingdon: Professional Books, 1983) 1428
, The Effect of Community Law on Employment Rights (1975) 1 Poly Law
Review 50
Hepple B and Szyszczak E (eds) Discrimination: The Limits of the Law (London:
Mansell, 1992)
Heringa A and Verhey L, The EU Charter: Text and Structure (2001) 8
Maastricht Journal 11
Hervey T, Up in Smoke? Community (anti) tobacco law and policy (2001) 26
European Law Review 101
, Social Solidarity: A Buttress Against Internal Market Law? in Shaw (2000)
3147
, Putting Europes House in Order: Racism, Race Discrimination and
Xenophobia after the Treaty of Amsterdam in OKeeffe and Twomey (1999)
329349
, European Social Law and Policy (Harlow: Longman, 1998)
, The Future of Sex Equality Law in the European Union in Hervey and
OKeeffe (1996) 399413
, Migrant workers and their families in the European Union: the pervasive
market ideology of Community law in Shaw and More (1995) 91110
, Legal Issues concerning the Barber Protocol in OKeeffe and Twomey (1994)
329337
, Small Business Exclusion in German Dismissal Law (1994) 23 Industrial
Law Journal 267
, Justifications for Sex Discrimination in Employment (London: Butterworths,
1993)
, Justification of Indirect Sex Discrimination in Employment: European Community Law and UK Law Compared (1991) 40 International and Comparative
Law Quarterly 807
Hervey T and OKeeffe D (eds) Sex Equality Law in the European Union
(Chichester: Wiley, 1996)
Hervey T and Rostant P, After Francovich: State Liability and British Employment Law (1999) 25 Industrial Law Journal 259
Hervey T and Shaw J, Women, Work and Care: Womens Dual Role and Double
Burden in EC Sex Equality Law (1998) 8 Journal of European Social Policy 43
Heukels T, Blokker N and Brus M (eds) The European Union After Amsterdam:
A Legal Analysis (The Hague: Kluwer, 1998)
Higgins T, Anti-essentialism, Relativism and Human Rights (1996) 19 Harvard
Womens Law Journal 1419
Himsworth C, Things Fall Apart: The Harmonisation of Community Judicial
Protection Revisited (1997) 22 European Law Review 291
Hodson D and Maher I, The Open Method as a New Mode of Governance: The
Case of Soft Economic Policy Co-ordination (2001) 39 Journal of Common
Market Studies 719
Hoskins M, Tilting the Balance: Supremacy and National Procedural Rules (1996)
21 European Law Review 365
Hoskyns C, A Study of Four Action Programmes on Equal Opportunities in
Rossilli (2000) 4359

560 Bibliography
Hunt J, Success at last? The amendment of the Acquired Rights Directive (1999)
24 European Law Review 215
Jacobs F, Enforcing Community Rights and Obligations in National Courts: Striking the Right Balance in Lonbay and Biondi (1997) 2536
Jaspers T, Desirability of European Legislation in Particular Areas of Social Policy
in Betten (1989) 5381
Jeffery M, Not Really Going to Work? Of the Directive on Part-Time Work,
Atypical Work and Attempts to Regulate It (1998) 27 Industrial Law Journal 193
, The Commission Proposals on Atypical Work: Back to the Drawing Board
. . . Again (1995) 24 Industrial Law Journal 296
Joerges C, European Economic Law, the Nation-State and the Maastricht Treaty
in Dehousse (1994) 2962
Joerges C, Mny Y and Weiler J (eds) Jean Monnet Working Paper No 6/01:
Symposium: Mountain or Molehill? A Critical Appraisal of the Commission
White Paper on Governance (New York: New York University School of Law,
2001)
Jones B, Sex Equality in Pension Schemes in Kenner (1995) 85144
Kahn-Freund O, Industrial Democracy (1977) 6 Industrial Law Journal 77
, The European Social Charter in Jacobs F (ed) European Law and the
Individual (North-Holland: Amsterdam, 1976) 181211
, On the Uses and Misuses of Comparative Law (1974) 37 Modern Law
Review 1
, Labour Law and Social Security in Stein E and Nicholson T (eds) American
Enterprise in the European Common Market: A Legal Profile, Vol 1 (Ann Arbor:
University of Michigan Press, 1960) 297458
Keller B and Srries B, The New European Social Dialogue: Old Wine in New
Bottles? (1999) 9 Journal of European Social Policy 111
and , Sectoral Social Dialogue: New Opportunities or Impasses? (1999)
30 Industrial Relations Journal 330
and , The New Social Dialogue: Procedural Structuring, First Results and
Perspectives in Towers and Terry (1998) 7798
Kenner J, Employment and Macroeconomics in the EC Treaty: A Legal and
Political Symbiosis (2000) 7 Maastricht Journal 375
, The Paradox of the Social Dimension in Lynch et al (2000) 108129
, The EC Employment Title and the Third Way: Making Soft Law Work?
(1999) 15 International Journal of Comparative Labour Law and Industrial Relations 33
, Statement or Contract?Some Reflections on the EC Employee Information
(Contract or Employment Relationship) Directive after Kampelmann (1999) 28
Industrial Law Journal 205
, A Distinctive Legal Base for Social Policy?The Court of Justice Answers a
Delicate Question (1997) 22 European Law Review 579
(ed) Trends in European Social Policy (Aldershot: Dartmouth, 1995)
, Citizenship and Fundamental Rights: Reshaping the European Social Model
in Kenner (1995) 384
, EC Labour Law: the Softly, Softly Approach (1995) 11 International Journal
of Comparative Labour Law and Industrial Relations 307
, European Social PolicyNew Directions (1994) 10 International Journal of
Comparative Labour Law and Industrial Relations 56

Bibliography

561

, Economic and Social CohesionThe Rocky Road Ahead [1994] Legal Issues
of European Integration 1
Kilpatrick C, Gender Equality: A Fundamental Dialogue in Sciarra S (ed) Labour
Law in the Courts: National Judges and the European Court of Justice (Oxford:
Hart, 2001) 31130
, Production and Circulation of EC Night Work Jurisprudence (1996) 25
Industrial Law Journal 169
, How long is a piece of string? European regulation of the post-birth period
in Hervey and OKeeffe (1996) 8196
Kilpatrick C, Novitz T and Skidmore P (eds) The Future of Remedies in Europe
(Oxford: Hart, 2000)
Klabbers J, Informal Instruments before the European Court of Justice (1994) 31
Common Market Law Review 997
Kleinman M and Piachaud D, European Social Policy: Conceptions and Choices
(1993) 3 Journal of European Social Policy 1
Kolehmainen E, The Directive Concerning the Posting of Workers: Synchronization of the Functions of National Legal Systems (1998) 20 Comparative Labor
Law and Policy Journal 71
Kolvenbach W, EEC Company Law Harmonization and Worker Participation
(1990) University of Pennsylvania Journal of International Business Law 709
Koopmans T, The Rle of Law in the Next Stage of European Integration (1986)
35 International and Comparative Law Quarterly 925
Koutrakos P, Community law and equal treatment in the armed forces (2000)
25 European Law Review 433
Krieger H, Participation of Employees Representatives in the Protection of the
Health and Safety of Workers in Europe (1990/91) 6 International Journal of
Comparative Labour Law and Industrial Relations 217
Kchhold K, BadeckThe Third German Reference on Positive Action (2001)
30 Industrial Law Journal 116
Lacey N, From Individual to Group in Hepple and Szyszczak (1992) 99124
Lange P, Maastricht and the Social Protocol: Why Did They Do It? (1993) 21
Politics and Society 5
Larsson A, Employment is a Matter of Common Concern, Employment and
Industrial Relations International (Dublin: EIRI, August 1997) 1821
Lawrence R and Schultz C (eds) Barriers to European Growth: A Transatlantic
View (Washington DC: Brookings, 1987)
Leben C, Is there a European Approach to Human Rights? in Alston (1999) 6997
Leibfried S and Pierson P, Prospects for Social Europe (1992) 20 Politics and
Society 333
Leighton P and Dumville S, From Statement to ContractSome Effects of the
Contracts of Employment Act 1972 (1977) 6 Industrial Law Journal 133
Lenaerts K and De Smijter E, A Bill of Rights for the European Union (2001)
38 Common Market Law Review 273
Lewis C and Moore S, Duties, Directives and Damages in European Community
Law [1993] Public Law 151
Lindberg L, The Political Dynamics of European Economic Integration
(California: Stanford, 1963)
Lister R, Citizenship, Exclusion and the Third Way in Social Security Reform:
Reflections on TH Marshall (2000) 7 Journal of Social Security Law 70

562 Bibliography
Lo Faro A, Regulating Social Europe: Reality and Myth of Collective Bargaining
in the EC Legal Order (Oxford: Hart, 2000)
Lonbay J and Biondi A (eds) Remedies for Breach of EC Law (Chichester: Wiley,
1997)
Lorber P, Regulating Fixed-term Work in the UK: A Positive Step towards
Workers Protection? (1999) 15 International Journal of Comparative Labour
Law and Industrial Relations 121
Louis J-V, A Monetary Union for Tomorrow? (1989) 26 Common Market Law
Review 301
Lynch P, Neuwahl N and Rees W (eds) Reforming the European Union: From
Maastricht to Amsterdam (Harlow: Longman, 2000)
, and , Conclusions: Maastricht, Amsterdam and beyond in Lynch
et al (2000) 235250
Lyon-Caen G, Subsidiarity in Davies et al (1996) 4962
MacKinnon C, Reflections on Sex Equality under Law (1991) 100 Yale Law
Journal 1281
Maher I, Legislative Review by the EC Commission: Revision without Radicalism in Shaw and More (1995) 235251
, National Courts as European Community Courts (1994) 14 Legal Studies 226
Majone G, The European Community Between Social Policy and Social Regulation (1993) 31 Journal of Common Market Studies 153
Mancini G, The Making of a Constitution for Europe (1989) 26 Common Market
Law Review 595
, Labour Law and Community Law (1985) 20 Irish Jurist (ns) 1
Mancini G and Keeling D, Democracy and the European Court of Justice (1994)
57 Modern Law Review 175
Mancini G and OLeary S, The New Frontiers of Sex Equality Law in the
European Union (1999) 24 European Law Review 331
Marglin S and Schorr J (eds) The Golden Age of Capitalism: Reinterpreting the
Postwar Experience (Oxford: Clarendon Press, 1992)
Marshall T, Social Policy (London: Hutchinson, 1975)
, Citizenship and Social Class and Other Essays (Cambridge: CUP, 1950)
McColgan A, Family Friendly Frolics? The Maternity and Paternity Leave etc
Regulations 1999 (2000) 29 Industrial Law Journal 125
McCrudden C, Merit Principles (1998) 18 Oxford Journal of Legal Studies 543
, The Effectiveness of European Equality Law: National Mechanisms for
Enforcing Gender Equality Law in the Light of European Requirements (1993)
13 Oxford Journal of Legal Studies 320
, Rethinking Positive Action (1986) 15 Industrial Law Journal 219
McGlynn C, Ideologies of Motherhood in European Community Sex Equality
Law (2000) 6 European Law Journal 29
, A Family Law for the European Union? in Shaw (2000) 223241
, An Exercise in Futility: The Practical Effects of the Social Policy Opt-out
(1998) 49 Northern Ireland Legal Quarterly 60
McInerney S, Bases for Action Against Race Discrimination in EU Law (2002)
27 European Law Review 72
Meehan E, Sex Equality Policies in the European Community (1990) 13 Journal
of European Integration 185

Bibliography

563

Megarry R, Administrative Quasi-Legislation (1944) 60 Law Quarterly Review

125
Moebius I and Szyszczak E, Of Raising Pigs and Children (1998) 18 Yearbook
of European Law 125
Monnet J, A Ferment of Change (1962) 1 Journal of Common Market Studies
203
Moravcsik A, Negotiating the Single European Act: National Interests and
Conventional Statecraft in the European Community (1991) 45 International
Organization 19
More G, The Principle of Equal Treatment: From Market Unifier to Fundamental
Right? in Craig and de Brca (1999) 517553
, Equality of Treatment in European Community Law: The Limits of Market
Equality in Bottomley A (ed) Feminist Perspectives on the Foundational Subjects
of Law (London: Cavendish, 1996) 261278
, The Acquired Rights Directive: Frustrating or Facilitating Labour Market
Flexibility? in Shaw and More (1995) 129145
, The Concept of Undertaking in the Acquired Rights Directive: The Court
of Justice Under Pressure (Again) (1995) 15 Yearbook of European Law 135
, Equal Treatment of the Sexes in European Community Law: What Does
Equal Mean? (1993) 1 Feminist Legal Studies 45
Mosley H, The social dimension of European integration (1990) 129 International Labour Review 147
Mckenberger U, Non-standard Forms of Work and the Role of Changes in
Labour and Social Security Regulation (1989) 17 International Journal of the
Sociology of Law 381
Murray J, The International Regulation of Maternity: Still Waiting for the
Reconciliation of Work and Family Life (2001) 17 International Journal of
Comparative Labour Law and Industrial Relations 25
, Social Justice for Women? The ILOs Convention on Part-time Work (1999)
15 International Journal of Comparative Labour Law and Industrial Relations 3
, Normalising Temporary Work (1999) 28 Industrial Law Journal 269
Neal A, Regulating Health and Safety at Work: Developing European Union Policy
for the Millennium (1998) 14 International Journal of Comparative Labour Law
and Industrial Relations 217
, Promoting Occupational Safety and Health in the European Union in Neal
and Foyn (1995) 8099
, The Industrial Relations in SMEs in the United Kingdom (1993) 26 Bulletin
of Comparative Labour Relations 75
, The European Framework Directive on the Health and Safety of Workers:
Challenges for the United Kingdom (1990) 6 International Journal of Comparative Labour Law and Industrial Relations 80
Neal A and Foyn S (eds) Developing the Social Dimension in an Enlarged
European Union (Oslo: Scandinavian University Press, 1995)
Nickell S, Unemployment and Labour Market Rigidities: Europe versus North
America (1997) 11 Journal of Economic Perspectives 55
Neilson J, Equal Opportunities for Women in the European Union: Success or
Failure? (1998) 8 Journal of European Social Policy 64
Nielsen R, European Labour Law (Copenhagen: DJF Publishing, 2000)

564 Bibliography
Nielsen R, The Contract of Employment in the Member States of the European
Communities and in European Community Law (1990) 33 German Yearbook
of International Law 258
Nielsen R and Szyszczak E, The Social Dimension of the European Community,
2nd ed (Copenhagen: Handelshjskolens Forlag, 1993)
Nihoul P, Do workers constitute undertakings for the purpose of the competition
rules? (2000) 25 European Law Review 408
Noel E, Reflections on the Community in the Aftermath of the Meeting of the
European Council in Milan (1985) 20 Government and Opposition 444
Novitz T, Remedies for Violation of Social Rights within the Council of Europe
in Kilpatrick et al (2000) 231251
Numhauser-Henning A, Swedish Sex Equality Law before the European Court
of Justice (2001) 30 Industrial Law Journal 121
Nussbaum M, Human Functioning and Social Justice: In Defence of Aristotlean
Essentialism (1992) 20 Political Theory 202
Obradovic D, Accountability of Interest Groups in the Union Lawmaking Process
in Craig and Harlow (1998) 354385
, Policy Legitimacy and the European Union (1996) 34 Journal of Common
Market Studies 191
OHare U, Enhancing European Equality Rights: A New Regional Framework
(2001) 8 Maastricht Journal 133
, Equality and Affirmative Action in International Human Rights Law and its
Relevance for the European Union (2000) 4 International Journal of Discrimination and the Law 3
OHiggins P, Labour is not a CommodityAn Irish Contribution to International
Labour Law (1997) 26 Industrial Law Journal 225
OKeeffe D, Union Citizenship in OKeeffe and Twomey (1994) 87107
OKeeffe D and Twomey P (eds) Legal Issues of the Amsterdam Treaty (Oxford:
Hart, 1999)
and (eds) Legal Issues of the Maastricht Treaty (London: Wiley Chancery,
1994)
OLeary S, The Principle of Equal Treatment on Grounds of Nationality in Article
6 EC: A Lucrative Source of Rights for Member State Nationals? in Dashwood
and OLeary (1997) 105136
, The Relationship between Community Citizenship and the Protection of
Fundamental Rights in Community Law (1995) 32 Common Market Law
Review 519
Paddoa-Schioppa T, The Road to Monetary Union in Europe: the Emperor, the
Kings and the Genies, revised ed (Oxford: OUP, 2000)
Peers S, Towards Equality: Actual and Potential Rights of Third Country
Nationals in the EU (1996) 33 Common Market Law Review 7
Pescatore P, Some Critical Remarks on the Single European Act (1987) 24
Common Market Law Review 9
, The Doctrine of Direct Effect: An Infant Disease of Community Law (1983)
8 European Law Review 155
Peters A, The Many Meanings of Equality and Positive Action in Favour of
Women under European Community LawA Conceptual Analysis (1996) 2
European Law Journal 177
Plaza Martin C, Furthering the Effectiveness of EC Directives and the Judicial

Bibliography

565

Protection of Individual Rights Thereunder (1994) 43 International and Comparative Law Quarterly 26
Poiares Maduro M, Europes Social Self: The Sickness Unto Death in Shaw
(2000) 325349
, Striking the Elusive Balance Between Economic Freedom and Social Rights
in the EU in Alston (1999) 449472
, We, The Court: The European Court of Justice and the European Economic
Constitution (Oxford: Hart, 1998)
Prechal S, Senden L and Koopman B, General Report 1997 of the Legal Experts
Group on Equal Treatment of Men and Women (Brussels: European Commission, 1999)
Preu U, Problems of a Concept of European Citizenship (1995) 1 European Law
Journal 267
Quinn G, Human Rights of People with Disabilities under EU Law in Alston
(1999) 281326
Rabin R, Fibreboard and the Termination of Bargaining Unit Work: The Search
for Standards in Defining the Scope of the Duty to Bargain (1971) 71 Columbia
Law Review 803
Ramm T, Workers Participation, the Representation of Labour and Special Labour
Courts in Hepple (1987) 242276
Rasmussen H, Between Self-Restraint and Activism: A Judicial Policy for the
European Court (1988) 13 European Law Review 28
Reich N, Union CitizenshipMetaphor or Source of Rights? (2001) 7 European
Law Journal 4
Rhodes M, Globalization, Labour Markets and Welfare States: A Future
of Competititve Corporatism? in Rhodes M and Mny Y, The Future of
European Welfare: A New Social Contract? (Basingstoke: Macmillan, 1998)
178203
, The Social Dimension after Maastricht: Setting a New Agenda for the Labour
Market (1993) 9 International Journal of Comparative Labour Law and Industrial Relations 297
, The Future of the Social Dimension: Labour Market Regulation in Post1992 Europe (1992) 30 Journal of Common Market Studies 23
Rideout R, The Great Transfer of Employees Rights Hoax [1982] Current Legal
Problems 233
Rodrguez-Pinero M and Casas E, In Support of a European Social Constitution in Davies et al (1996) 2348
Rogowski R and Wilthagen T (eds) Reflexive Labour Law (Deventer: Kluwer,
1994)
Ross M, Beyond Francovich (1993) 56 Modern Law Review 55
Rossilli M (ed), Gender Policies in the European Union (New York: Peter Lang,
2000)
Rubenstein M, The Dignity of Women at Work: A Report on the Problem
of Sexual Harassment in the Member States of the European Communities
(Luxembourg: European Communities, 1987)
Ryan B, The Private Enforcement of European Union Labour Laws in Kilpatrick
et al (2000) 141163
, Pay, Trade Union Rights and European Community Law (1997) 13 International Journal of Comparative Labour Law and Industrial Relations 305

566 Bibliography
Sand I-J, Understanding the New Forms of Governance: Mutually Interdependent,
Reflexive, Destabilised and Competing Institutions (1998) 4 European Law
Journal 271
Sandholtz W and Zysman J, 1992: Recasting the European Bargain (1989) 42
World Politics 95
Sandler A, Players and Process: The Evolution of Employment Law in the EEC
(1985) 7 Comparative Labor Law Journal 1
Schachter O, The Twilight Existence of Nonbinding International Agreements
(1977) 71 American Journal of International Law 296
Schiek D, Positive Action before the European Court of JusticeNew Conceptions of Equality in Community Law? From Kalanke and Marschall to Badeck
(2000) 16 International Journal of Comparative Labour Law and Industrial Relations 251
, Sex Equality Law After Kalanke and Marschall (1998) 4 European Law
Journal 148
, Positive Action in Community Law (1996) 25 Industrial Law Journal 239
Schmidt M, RepresentativityA Claim Not Satisfied: The Social Partners Role
in the EC Law-Making Procedure for Social Policy (1999) 15 International
Journal of Comparative Labour Law and Industrial Relations 259
, Parental Leave: Contested Procedure, Creditable Results (1997) 13 International Journal of Comparative Labour Law and Industrial Relations 113
Schwarze J, The Convergence of the Administrative Laws of the EU Member
States in Snyder (2000) 163182
Sciarra S, Global or Re-nationalised? Past and Future of European Labour Law
in Snyder (2000) 269291
, The Employment Title in the Amsterdam Treaty: A Multi-language Legal
Discourse in OKeeffe and Twomey (1999) 157170
, Dynamic integration of national and Community sources: the case of nightwork for women in Hervey and OKeeffe (1996) 97108
, Collective Agreements in the Hierarchy of European Community Sources in
Davies et al (1996) 189212
, How Global is Labour Law? The Perspective of Social Rights in the
European Union, EUI Working Paper No 96/6 (Florence: EUI, 1996)
, Social Values and the Multiple Sources of European Social Law (1995) 1
European Law Journal 60
Scott J, Law, Legitimacy and EC Governance: Prospects for Partnership (1998)
36 Journal of Common Market Studies 175
Senden L, Positive Action in the EU Put to the Test: A Negative Score? (1996) 3
Maastricht Journal 146
Servais J-M, Labour Law in Small and Medium-Sized Enterprises: An Ongoing
Challenge (1994) 10 International Journal of Comparative Labour Law and
Industrial Relations 119
Shanks M, Introductory Article: The Social Policy of the European Communities
(1977) 14 Common Market Law Review 375
Sharpe A, Transgender Jurisprudence: Dysphoric Bodies of Law (London:
Cavendish Publishing, 2002)
Shaw J, Gender and the Court of Justice in de Brca G and Weiler J (eds) The
European Court of Justice (Oxford: OUP, 2001) 87142

Bibliography

567

, The Treaty of Nice: Legal and Constitutional Implications (2001) 7

European Public Law 195
, The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy (1998)
4 European Law Journal 63
(ed) Social Law and Policy in an Evolving European Union (Oxford: Hart,
2000)
, From the Margins to the Centre: Education and Training Law and Policy in
Craig and de Brca (1998) 555595
, Citizenship of the Union: First Steps in the European Court of Justice (1998)
4 European Public Law 533
, The Many Pasts and Futures of Citizenship of the European Union (1997)
60 Modern Law Review 554
, Law, Gender and the Internal Market in Hervey and OKeeffe (1995)
283299
, Twin-track Social Europethe Inside Track in OKeeffe and Twomey (1994)
295311
, The Scope and Content of European Community Social Law: A Review of
Progress and a Bibliographical Note (1992) 14 Journal of Social Welfare and
Family Law 71
, Positive Action for Women in Germany: The Use of Legally Binding Quota
Systems in Hepple and Szyszczak (1992) 386411
, European Community judicial method: its application to sex discrimination
law (1990) 19 Industrial Law Journal 228
Shaw J and More G (eds) New Legal Dynamics of European Union (Oxford:
Clarendon Press, 1995)
Shonfield A, Europe: Journey to an Unknown Destination (London:
Harmondsworth, 1973)
Shrubsall V, The Additional Protocol to the European Social CharterEmployment Rights (1989) 18 Industrial Law Journal 39
Siebert H, Labor Rigidities: at the Root of Unemployment in Europe (1997) 11
Journal of Economic Perspectives 43
Simitis S, Workers Participation in the EnterpriseTranscending Company Law
(1975) 38 Modern Law Review 1
Simitis S and Lyon-Caen A, Community Labour Law: A Critical Introduction to
its History in Davies et al (1996) 122
Skidmore P, EC Framework Directive on Equal Treatment in Employment:
Towards a Comprehensive Community Anti-Discrimination Policy? (2001) 30
Industrial Law Journal 126
, Can Transsexuals Suffer Sex Discrimination? (1997) 19 Journal of Social
Welfare and Family Law 105
Snyder F (ed) The Europeanisation of Law: The Legal Effects of European Integration (Oxford: Hart, 2000)
, Europeanisation and Globalisation as Friends and Rivals: European Union
Law in Global Economic Networks in Snyder (2000) 293320
, EMUMetaphor for European Union? Institutions, Rules and Types of
Regulation in Dehousse (1994) 6399
, Soft Law and Institutional Practice in the European Community, EUI
Working Paper LAW No 93/5 (EUI, Florence 1993)

568 Bibliography
Snyder F, The Effectiveness of European Community Law: Institutions, Processes,
Tools and Techniques (1993) 56 Modern Law Review 19
Soskice D, Industrial Relations and Unemployment: The Case for Flexible
Corporatism in Kregel J, Matzner E and Roncaglia A (eds) Barriers to Full
Employment (London: Macmillan, 1988)
Squires J, Gender in Political Theory (Cambridge: Polity Press, 1999)
Steiner J, From direct effects to Francovich: Shifting Means of Enforcement of
Community Law (1993) 18 European Law Review 3
Story J, Social Europe: Ariadnes Thread (1990) 13 Journal of European
Intergration 151
Streeck W, Competitive Solidarity: Rethinking the European Social Model,
MPIfG Working Paper 99/8 (Cologne: Max-Planck-Institut fr Sozialforschung,
1999)
, Neo-Voluntarism: A New European Social Policy Regime? (1995) 1
European Law Journal 31
, Skills and the Limits of Neo-Liberalism: The Enterprise of the Future as a
Place of Learning (1989) 3 Work, Employment and Society 1
Streit M and Mussler W, The Economic Constitution of the European Community: From Rome to Maastricht (1995) 1 European Law Journal 5
Stubb A, Differentiated Integration (1996) 34 Journal of Common Market Studies
283
Supiot A, Beyond Employment: Changes in Work and the Future of Labour Law
in Europe (Oxford: OUP, 2001)
, The Dogmatic Foundations of the Market (2000) 29 Industrial Law Journal
321
, On the Job: Time for Agreement (1996) 12 International Journal of Comparative Labour Law and Industrial Relations 195
Symes V, Unemployment and Employment Policies in the EU (London: Kogan Page,
1998)
Syrpis P, Smoke Without Fire: The Social Policy Agenda and the Internal Market
(2001) 30 Industrial Law Journal 271
, The Integrationist Rationale for European Social Policy in Shaw (2000)
1730
Szyszczak E, The New Paradigm for Social Policy: A Virtuous Circle? (2001) 28
Common Market Law Review 1125
, EC Labour Law (Harlow: Longman, 2000)
, The Evolving European Employment Strategy in Shaw (2000) 197220
, The Working Environment v Internal Market (1999) 24 European Law
Review 196
, The New Parameters of European Labour Law in OKeeffe and Twomey
(1999) 141155
, Making Europe More Relevant to its Citizens: Effective Judicial Process
(1996) 21 European Law Review 351
, Positive Action After Kalanke (1996) 59 Modern Law Review 876
, Community Law on Pregnancy and Maternity in Hervey and OKeeffe
(1996) 5262
, Social Policy: a Happy Ending or a Reworking of the Fairy Tale? in
OKeeffe and Twomey (1994) 313327

Bibliography

569

, Racism: The Limits of Market Equality in Hepple and Szyszczak (1992)

125147
, LEspace Sociale Europenne: Reality, Dreams, or Nightmares? (1990) 33
German Yearbook of International Law 284
Tash A, Remedies for European Community Law Claims in Member State Courts:
Towards a European Standard (1993) 31 Columbia Journal of Transnational
Law 377
Teague P, Monetary Union and Social Europe (1998) 8 Journal of European Social
Policy 117
and Grahl J, 1992 and the Emergence of a European Industrial Relations
Area (1990) 13 Journal of European Integration 167
Temple Lang J, The Fifth EEC Directive on the Harmonization of Company Law
(1975) 12 Common Market Law Review 155
Terry S, A Bridge Too Far? Non-Discrimination and Homosexuality in European
Community Law (1998) 4 European Public Law 487
Tesauro G, The Effectiveness of Judicial Protection and Co-operation between the
Court of Justice and National Courts (1993) 13 Yearbook of European Law 1
Timmermans C, How can one improve the Quality of Community Legislation?
(1997) 34 Common Market Law Review 1229
Toth A, The Legal Effects of the Protocols Relating to the United Kingdom, Ireland
and Denmark in Heukels et al (1998) 227252
, The Principle of Subsidiarity in the Maastricht Treaty (1992) 29 Common
Market Law Review 1079
, The Legal Status of the Declarations Annexed to the Single European Act
(1986) 23 Common Market Law Review 803
Towers B and Terry M (eds) Industrial Relations Journal European Annual
Review 1997 (Oxford: Blackwell, 1998)
Tridimas T, Liability for Breach of Community Law: Growing Up and Mellowing Down? (2001) 38 Common Market Law Review 301
Tsoulakis L, The New European Economy Revisited, 3rd ed (Oxford: OUP,
1997)
Traxler F, Employers and Employer Organisations in Towers and Terry (1998)
99111
Treu T, European Collective Bargaining Levels and the Competences of the Social
Partners in Davies et al (1996) 269287
Trubek D and Mosher J, New Governance, EU Employment Policy, and the
European Social Model in Joerges et al (2001) Part 9, 125
Tuytschaever F, Differentiation in European Union Law (Oxford: Hart,
1999)
Twomey P, The European Union: Three Pillars without a Human Rights Foundation in OKeeffe and Twomey (1994) 121132
Usher J, Variable Geometry or Concentric Circles: Patterns for the EU (1997) 46
International and Comparative Law Quarterly 243
, European Community Equality Law: Legal Instruments and Judicial
Remedies in McCrudden C (ed) Women, Employment and European Equality
Law (London: Eclipse Publications, 1987) 161177
Valticos N and von Potobsky G, International Labour Law, 2nd revised ed
(Deventer: Kluwer, 1995)

570 Bibliography
Van den Bergh R and Camesasca P, Irreconcilable Principles? The Court of
Justice Exempts Collective Labour Agreements from the Wrath of Antitrust
(2000) 25 European Law Review 492
Van Gerven W, Of rights, remedies and procedures (2000) 37 Common Market
Law Review 501
, Bridging the gap between Community and national laws: towards a principle of homogeneity in the field of legal remedies (1995) 32 Common Market Law
Review 679
Veneziani B, The Evolution of the Contract of Employment in Hepple (1987)
3172
Venturini P, 1992: The European Social Dimension (Luxembourg: European Communities, 1989)
Vogel-Polsky E, What Future is There for a Social Europe? (1990) 19 Industrial
Law Journal 65
Von Bogdandy A, The European Union as a Human Rights Organization? Human
Rights and the Core of the European Union (2000) 37 Common Market Law
Review 1307
Von Krosigk F, A Reconsideration of Federalism in the Scope of the Present Discussion on European Integration (1970) 9 Journal of Common Market Studies
197
Vousden S, Albany, Market Law and Social Exclusion (2000) 29 Industrial Law
Journal 181
Waaldijk K, The Legal Situation in the Member States in Waaldijk and Clapham
(1993) 71130
Waaldijk K and Clapham A (eds) Homosexuality: A European Community Issue
(Dordrecht: Nijhoff, 1993)
Waddington L, Testing the Limits of the EC Treaty Article on Nondiscrimination (1999) 28 Industrial Law Journal 133
, Reassessing the Employment of People with Disabilities in Europe: From
Quotas to Anti-discrimination Laws (1996) 18 Comparative Labor Law Journal
62
, Disability, Employment and the European Community (Antwerp: Maklu,
1995)
Waddington L and Bell M, More Equal than Others: Distinguishing European
Union Equality Directives (2001) 38 Common Market Law Review 587
Walker K, Workers Participation in Management: Problems, Practice and
Prospects in 1974 IILS Bulletin (Geneva: International Institute of Labour
Studies) No 12, 335
Walker N, European Constitutionalism and European Integration [1996] Public
Law 266
Ward A, Effective Sanctions in EC Law: a Moving Boundary in the Division of
Competence (1995) 1 European Law Journal 205
Ward I, Amsterdam and the Continuing Search for Community in OKeeffe and
Twomey (1999) 4155
, Beyond Sex Equality: The Limits of Sex Equality Law in the New Europe in
Hervey and OKeeffe (1996) 369382
Warner H, EC Social Policy in Practice: Community Action on Behalf of Women
and its Impact in the Member States (1984) 23 Journal of Common Market
Studies 141

Bibliography

571

Watson P, The Role of the European Court of Justice in the Development of Community Labour Law in Ewing et al (1994) 76105
, Social Policy After Maastricht (1993) 30 Common Market Law Review 481
, The Community Social Charter (1991) 28 Common Market Law Review 37
, Social Security Law of the European Communities (London: Mansell, 1980)
Weatherill S, Safeguarding the Acquis Communautaire in Heukels et al (1998)
153178
, Law and Integration in the European Union (Oxford: Clarendon Press, 1995)
, Beyond Preemption? Shared Competence and Constitutional Change in the
European Community in OKeeffe and Twomey (1994) 1333
Weatherill S and Beaumont P, EU Law, 3rd ed (London: Penguin, 1999)
Webb B and Webb S, Industrial Democracy (London: Longmans, 1898)
Wedderburn (Lord), Consultation and Collective Bargaining in Europe: Success
or Ideology? (1997) 26 Industrial Law Journal 1
, Inderogability, Collective Agreements and Community Law (1992) 21 Industrial Law Journal 245
, The Social Charter in BritainLabour Law and Labour Courts? (1991) 54
Modern Law Review 1
, Workers Rights: Fact or Fake? (1991) 13 Dublin University Law Journal 1
, Industrial Relations and the Courts (1980) 9 Industrial Law Journal
65
Weiler J, Editorial: Does the European Union Truly Need a Charter of Rights?
(2000) 6 European Law Journal 95
, Prologue: Amsterdam and the Quest for Constitutional Democracy in
OKeeffe and Twomey (1999) 120
, Epilogue: The European Courts of Justice: Beyond Beyond Doctrine or the
Legitimacy Crisis of European Constitutionalism in Slaughter A-M, Stone Sweet
A and Weiler J (eds) The European Courts and National Courts: Doctrine and
Jurisprudence (Oxford: Hart, 1998) 365391
, Quiet Revolution: The European Court of Justice and its Interlocutors (1994)
26 Comparative Political Studies 510
, The Transformation of Europe (1991) 100 Yale Law Journal 2403
Weiler J and Fries S, A Human Rights Policy for the European Community and
Union: The Question of Competences in Alston (1999) 147165
Weiler J, Haltern U and Mayer F, European Democracy and its Critique (1995)
18 Western European Politics 4
Weiler J and Lockhart N, Taking Rights Seriously Seriously: The European
Court and its Fundamental Rights Jurisprudence (1995) 32 Common Market
Law Review 59
Weiss M, The Politics of the EU Charter of Fundamental Rights in Hepple B (ed)
Social and Labour Rights in a Global Context (Cambridge: CUP, 2002,
forthcoming)
, The European Communitys Approach to Workers Participation in Neal and
Foyn (1995) 100124
, The Significance of Maastricht for European Community Social Policy
(1992) 8 International Journal of Comparative Labour Law and Industrial Relations 3
Welch J, The Fifth Draft DirectiveA False Dawn (1983) 8 European Law
Review 83

572 Bibliography
Wellens K and Borchardt G, Soft Law in European Community Law (1989)
14 European Law Review 267
Wellenstein E, Unity, Community, UnionWhats in a Name? (1992) 29
Common Market Law Review 205
Whiteford E, Occupational Pensions and European Law: Clarity at Last? in
Hervey and OKeeffe (1996) 2134
, W(h)ither Social Policy? in Shaw and More (1995) 111128
, Social Policy After Maastricht (1993) 18 European Law Review 202
Wintemute R, When is Pregnancy Discrimination Indirect Sex Discrimination
(1998) 27 Industrial Law Journal 23
, Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual
Orientation and Dress Codes (1997) 60 Modern Law Review 334
, Sexual Orientation and Human Rights: The United States Constitution, the
European Convention and the Canadian Charter (Oxford: OUP, 1995)
Wintemute R and Andenas M, Legal Recognition of Same-Sex Partnerships: A
Study of National, European and International Law (Oxford: Hart, 2001)
Winter J, Curtin D, Kellermann A and de Witte B (eds) Reforming the Treaty
on European UnionThe Legal Debate (The Hague: Kluwer, 1996)
Wise M and Gibb R, Single Market to Social Europe: The European Community
in the 1990s (Harlow: Longman, 1993)
Wyatt D, The Direct Effect of Community Social LawNot Forgetting Directives
(1983) 8 European Law Review 241
Wyatt D and Dashwood A, European Community Law, 2nd ed (London: Sweet
and Maxwell, 1993)
Young H, This Blessed Plot: Britain and Europe from Churchill to Blair (London:
Macmillan, 1998)

Index
acquired rights, see transfer of undertakings
acquis communautaire, 127, 217, 2201,
225, 236, 240, 2445, 377
age:
active ageing, 495
care, 458, 501
combating discrimination, 379
demographic challenges, 320, 4867,
490, 500
early retirement, 339
employment of older workers, 323,
4956
European Year of the Elderly and
Solidarity between the Generations,
149, 323
Framework Employment Directive,
provisions of, 398423
armed forces exclusion, 404
burden of proof, 421
definition, 405
derogations (age), 395, 41718, 423
discrimination, 406, 417
justifications for discrimination, 417
implementation, 423
occupational requirements, 41314,
418
integration of older people, 3213
programmatic action, 323
retirement ages, 323, 3557, 418
retirement benefits, 323, 41718
Social Charter, 14950, 321, 401
social exclusion, 490
social protection, 490
Treaty provision, 131, 379
see also anti-discrimination, fundamental
rights, pensions
agency workers, see temporary work
Agreement on Social Policy, 21992
abolition, 291, 379
acceding States, 225
accession by the UK, 2212
acquis, 2201, 225, 236, 240, 2445
annual reports, 237
Commission Communication, 222, 226
declarations, 220, 250
entry into force, 72, 188
exclusions, 144, 210, 239, 2413, 271,
281, 292
framework agreements, see social
partners

implementation, 237, 23942, 248,

2505, 292, 338
institutions, role of, 24656
legal status, 2207
legislative procedures, 227, 23566, 277,
291
Protocol on Social Policy 130, 21927,
233, 2356, 244, 292, 377, 379
small and medium-sized undertakings,
280, 292
Social Chapter, relationship with, 2223,
23646, 240
Social Charter, implementation of, 130,
220, 233, 2356, 242, 291
social partners, representativeness and
democratic legitimacy, 24666
social provisions, 20, 106, 130, 227,
23546, 275
subsidiarity, 235, 243
territorial effects, 220, 2256
transitional nature, 225, 236
see also, legislation, social partners, social
policy
Amsterdam Treaty, see Treaty of
Amsterdam
anti-discrimination:
action programme, 393, 399400, 4235
clauses in directives, 251, 394
combating discrimination, 37982,
393427
concepts of discrimination, 400, 40611
dignity concept, 409, 434, 5212
EQUAL initiative, 475
essentialism, 425, 431, 524
European Convention on Human Rights,
3978
Framework Employment Directive, 150,
206, 210, 399423, 425
burden of proof, 408, 4202
comparative disadvantage test
(discrimination), 360, 40610, 419,
457
derogations, 398, 4034, 406, 41318,
423
direct discrimination, 406
equal treatment principle, 404, 40611,
413, 41823
equalities bodies, 422
grounds of discrimination, 4046
group rights, 408, 4203, 4267

574 Index
anti-discrimination (cont:)
harassment, 406, 40810, 417
implementation, 4234
indirect discrimination, 4068, 417,
419
instruction to discriminate, 406, 410
legislative proposals, 326, 393400,
409
marital status, 41516
national laws and practices, 40810,
416, 4202
Northern Ireland, 416
occupational requirements, 41314,
41618
objective justification (discrimination),
40710, 417
positive action, 412, 41819
proportional test (discrimination), 360,
4078, 457
public security, 414
reasonable accommodation, 41113,
418
recitals, role of, 408, 41416, 418, 421
remedies, 400, 41923
scope, 399401, 404, 419
social security, 418
third-country nationals, 403
victimisation, 406, 41011, 417
harmonisation, 3935
hierarchy of equalities laws, 380,
398400, 406, 4227, 524
horizontal action, 3935, 398401,
4267
institutionalised discrimination, 410
internal market, 394
mainstreaming, 131, 379, 394, 399, 401,
4247
multiple discrimination, 394, 401, 404,
4224, 427, 524
multidimensional disadvantage, 291, 405,
410, 425
nationality discrimination, 3801, 402,
524
non-discrimination principle, 1214, 83,
114, 131, 137, 3801, 397, 443,
496, 521, 5234, 530, 538, 543
open method of co-ordination, 424, 500
police and judicial co-operation, 394
positive duties, 4267
Social Charter, 1312, 401
social origin, 395, 524
soft laws, 3236, 380, 398
subsidiarity, 395, 399
substantive equality, 419, 421
Starting Line Group, 326
Treaty provision, 1312, 326, 37982,
393427, 436, 439, 475, 524, 538
vertical action, 3935, 398400

see also age, disability, equality between

men and women, fundamental rights,
racism and xenophobia, religion
and/or belief, sex discrimination,
sexual orientation
area of freedom, security and justice, 376,
518
armed forces, 404, 41314
asylum seekers, 325, 4034
Association Agreements, 122
atypical workers, 823, 86, 1245, 132,
139, 249, 262, 276, 279
see also fixed-term work, part-time work,
temporary work
Barber Protocol, see pensions
Barcelona European Council, 490, 5079
Blair, Tony, 30910, 473
Brandt memorandum, 23
Burden of Proof Directive, see sex
discrimination
Cannes European Council, 331
Cardiff European Council, 4801, 484
CEEP, see social partners
Charter of Fundamental Rights (EU),
51145
common values, 440, 491, 512, 518, 535,
5424
Convention, 328, 415, 51517, 519
civil and political rights, 51821, 537
citizens rights, 519, 521
dignity, 409, 518, 5213, 531
diversity, 519
economic and social rights, 520, 523,
537, 543
equality, 429, 518, 521, 5235, 531
explanatory note, 521, 530, 5335
European Convention on Human Rights,
145, 5223, 52839
European Social Charter, 111, 520, 526,
5378
freedoms, 518, 521, 531
indivisibility, 51112, 518, 520, 531,
537, 543
judicial interpretation, 512, 51920, 526,
53144
justice, 491, 521, 528, 532
legal scope, 51819, 521, 523, 52843
national laws and practices, 519, 526,
5334, 5401
non-binding status, 111, 491, 512,
51416, 518, 529, 5405
non-discrimination, 521
non-retrogression, 538
origins, 111, 397, 51217
preamble, 518
proclamation, 131, 491, 511

Index
proportionality, 539
rights and principles, distinction, 5201,
5267, 533
Social Charter, relationship with, 520,
526, 532
social citizenship, 382
social rights, 461, 492, 512, 51745
solidarity, 491, 51819, 521, 5258, 531,
540, 5435
subsidiarity, 529, 544
universal rights, 51819, 544
see also fundamental rights
Cheysson, Claude, 74
childcare, 1401, 166, 168, 245, 26870,
311, 320, 362, 458, 475, 483, 501
see also family friendly policies, parental
leave, pregnancy and maternity
children, see Young Workers Directive
citizenship:
inclusion, 3278, 376, 381
market citizens, 11525, 292, 316
social citizenship, 73, 11120, 126, 131,
137, 149, 229, 292, 31617, 382,
51114, 519, 545
third-country nationals, status, 3246
Union, 79, 110, 118, 2269, 292, 378,
381, 429, 51213, 51819, 523, 545
worker citizens, 11525, 31617
civil society, see governance
Clinton, Bill, 473
closer co-operation, 377
Cockfield, Lord, 74
collective agreements:
Charter of Fundamental Rights, 533
competition policy, compatibility with,
1921,147, 537
equalities law, 48, 460
erga omnes extension of, 42, 2634
framework agreements, see social partners
immunity from competition law, 20
implementation of Community legislation,
see legislation
inderogability concept, 42
interpretation in sex equality cases, 362
levels (national, regional, company),
133
normative effect, 250
obligations on the State, 145
representativeness, 4042
see also, labour law, social partners
collective bargaining, see labour law,
social partners
collective redundancies:
directive, 2642, 33840, 3635
consolidation, 340
revision, 28, 87, 139, 188, 33840,
343
sanctions, 3635

575

information and consultation

obligations, 289, 32, 39, 64, 339,
3635
notification procedures, 32
procedural obligations on States, 32
reasons, 28
redundancy payments, 339
redundancy selection criteria, 339
Social Charter, 339
time limits, 28, 32
transnational dimension, 33940
voluntary redundancies, 339
Cologne European Council, 484, 514, 519,
526
Comit des Sages Report (1996), 295,
3278, 378
Common Agricultural Policy, 73
common market:
benefits, 36
competition, 36, 17
concept, 801
establishment and functioning, 16, 9,
25, 27, 33, 7991, 94, 154, 1868,
545
harmonisation, 68, 13, 25, 27, 37,
8295, 1868, 534
internal market, relationship with, 74,
8295
objectives, 121, 46, 8795
social policy, 121, 24, 200, 511
see also internal market
Community Charter of the Fundamental
Social Rights of Workers, see Social
Charter
companies:
company structure, 62, 658
corporate restructuring, 497
corporate social responsibility, 315,
4845
diversity, 667
European Company Statute, 65, 68, 315,
474, 497
Fifth Directive, 65, 678
harmonisation, 67
right of establishment, 68, 143
see also employee involvement
competence:
attribution of powers, 231, 401
exclusive, 232
national, 31314, 320, 5201, 528
scope, 44, 85, 91, 114, 120, 128, 131,
136, 1424, 149, 152, 381, 4013,
43942, 498, 506, 52930
shared, 93, 224, 235
see also subsidiarity
competition:
anti-competitive regulation, 335
benefits of competition, 5

576 Index
competition (cont:)
compatibility of collective agreements,
1921, 147, 537
compatibility of national social laws,
1620, 5367
competition law, 147, 461, 540
competitive solidarity, 473
distortions of, 1617, 19, 823, 86, 139,
1878, 223, 238, 45960
fair competition, 3, 16, 2931, 110, 143
free competition, 465, 471
public undertakings, 1617, 19
race to the bottom, 76, 302
state aids, 17
undertakings, meaning of, 19
unfair competition, 2267, 302
competitiveness:
competitive solidarity, 313
decline/recovery, 293, 295301
gap, 304
legislative review, 3367
objective of, 1878, 2378, 275, 292,
295304, 307, 34252, 4823, 492,
497
structural reforms, 483
White Paper, see Growth,
Competitiveness, Employment (White
Paper)
see also economic policy, work
organisation
Constitution of the EU, 545
consumer protection, 525
contract of employment, 1235, 189200,
402
see also Employee Information Directive
Convention on the Future of the EU, 517,
544
corporate social responsibility, see
companies
Council of Europe, 11114, 396, 520
culture, 319, 3245, 405, 523
Davignon Group, 31415
Delors, Jacques, 62, 69, 746, 7980, 83,
96, 100, 125, 216
democracy, see governance, social partners
demographic changes, 150
deregulation, see work organisation
differentiated integration, 218, 227, 379
dignity, see fundamental rights
direct applicability, see judicial interpretation
direct effect, see judicial interpretation
disability:
action programmes, 151, 4234
Advisory Committee, 322
barrier-free society, 412
Charter of Fundamental Rights, 524
civil dialogue, 322

combating discrimination, 379, 412

education and vocational training, 151,
319, 321
employment policy, 322
European Disability Forum, 3223
Framework Employment Directive,
provisions of, 398423
armed forces exclusion, 404
burden of proof, 421
definition of disability, 4056
derogations, 404, 41218, 423
discrimination, 406
disproportionate burden, 41213
essential functions defence, 418
implementation, 423
occupational requirements, 41314,
418
positive action, 412, 419
reasonable accommodation, 41113,
418
harassment, 206
health and safety, 412, 419
Helios programmes, 3213, 475
independent way of life, 322
integration of people with disabilities,
313, 3213, 41113, 475, 479, 524
internal market, 394
mainstreaming, 322, 412
quotas, 419
small and medium-sized enterprises, 412
Social Charter, 131, 137, 14952, 321,
401
social exclusion, 318
subsidiarity, 322
substantive equality, 41213
Treaty provision, 131, 14952, 3223,
379, 395
see also anti-discrimination
discrimination, see anti-discrimination
dismissal:
anti-discrimination directives, 401,
41011
concept of, 158
fixed-term work, 2889
parental leave, 2735
pay, 211
pregnancy, 1578, 1647, 41011
termination of employment, legal base,
239, 275
transfer of undertakings, 345
unfair, 49, 83, 208, 361, 5256, 533
see also pregnancy and maternity, sex
discrimination
Dooge Committee, 79
economic and monetary policy:
balance of payments, 471
budgetary policies, 321, 469, 471, 486

Index
convergence, 304, 4702
co-ordination, 216, 303, 470
EMU, 25, 212, 21516, 223, 228, 238,
292, 307, 321, 375, 468, 498
Economic Chapter, 4701
economic constitution, 215, 238, 292,
511
economic decline, 297
economic development, 298, 302, 329
Economic Guidelines, 303, 307, 469,
4712, 508
economic growth, 2978, 306, 331, 467,
471, 4823, 490, 493, 500
Economic Policy Committee, 476, 487
economic reform, 4823
employment policy, consistency with,
307, 468, 5059
exchange rate stability, 303
macroeconomic dialogue, 59, 4801
price stability, 471
sanctions, 471, 508
Stability and Growth Pact, 4712, 501,
509
economic and social cohesion, 133, 187,
211, 2289, 307, 316, 31920, 467,
483, 492
Economic and Social Committee:
Beretta Report, 111
Opinionre: Agreement on Social Policy,
2223, 258
Opinionre: Basic Community Social
Rights, 111, 116, 512
opinions and reports (general), 58, 61,
68, 136, 156, 190, 296, 2989,
323
Prospects for the 80s Report, 71, 108
representativeness, 256
Edinburgh European Council, 2323, 237
education:
Charter of Fundamental Rights, 523
childcare, 269
competence, 531
disabled persons, integration of, 3212
employment policy, 72, 299302
horizontal directives, 393
lifelong learning, 31213, 473, 483, 485,
495, 498, 504, 507
knowledge-based economy, 4823
national competence, 4023
open method of co-ordination, 486, 500
Race Equality Directive, 4023, 531
Social Charter, 11617, 140, 148
social exclusion, 31626
Treaty provisions, 22930
women, 32834
work organisation, 30915
see also vocational training
EEC, see Treaty of Rome

577

effectiveness principle, see judicial

interpretation
elderly, see age discrimination
Employee Information Directive: 139,
188200, 213
burden of proof, 1959
collective agreements, 192, 194
contract of employment, 189200
conveying information, 1923, 200
derogations, 191
employers obligations, 189, 191, 19599
employment relationship, 1205,
189200
existing employees, 193, 1957
expatriate employees (posted workers),
193
national law and practice, 1205,
190200
proof of employment, 139, 18890
overtime, 192, 19899
remedies, 194
scope, 1235, 191200
written statement, 18999
employee involvement:
aims, 26, 629, 4967
balanced participation in health and
safety, 64, 1025
Charter of Fundamental Rights, 5257,
532
co-determination, 239, 243, 527
Davignon Group recommendations,
31415
decision-making in the Community, 25,
59
decision-making in undertakings, 629,
497
diversity of methods, 629, 527
democratisation of the workplace, 59,
634
employees representatives, 65, 67, 69,
278
employment protection directives, 3940,
64
equity-sharing and financial participation,
141
fixed-term work, 289
Framework Directive (2002), 315, 364,
474, 4967, 503, 527, 532
information and consultation, 647, 239,
2412, 33940, 351, 3635
managerial prerogative, 64, 66, 363
quality objective, 493, 4967, 500, 503
part-time work, 278, 284
participation, 648
PEPPER Recommendation, 315
profit sharing, 315
Social Charter, 137, 141, 343
Vredeling proposal, 689, 141, 241

578 Index
employee involvement (cont:)
works councils, 65, 363
see also companies, European Works
Councils Directive, social partners
employment policy: 467509
adaptability, 312, 472, 4745, 5035,
5079
age, 323, 417, 479, 4867, 4956
benchmarking, 307, 470, 4768, 480,
486, 508
common concern, 307, 470
co-ordination, 3069, 468, 46971, 481
convergence, 304, 306, 472, 476, 5059
demographic changes, 302, 4867, 490
disabled persons, integration of, 322,
475, 479
economic policy, coherence with, 307,
46876, 5059
employability, 287, 312, 4724, 478,
497, 503, 5079
Employment Committee, 62, 4756, 487,
493
Employment Observatory, 137, 308
employment gap with US/Japan, 304,
4723, 477, 479
employment high level of, aim, 20, 229,
2367, 305, 379, 398, 470
employment-intensive growth, 2978,
306, 331
Employment Guidelines, 150, 308, 312,
47183, 48990, 4947, 5045,
5079
employment promotion, 230, 2379, 275,
2845, 289, 292, 295309, 332,
3367, 467509
Employment Title, 62, 138, 308, 379,
382, 395, 468, 4701, 479, 496
entrepreneurship, 4724, 5078
equal opportunities, 268, 279, 299, 302,
307, 32834, 472, 475, 483, 495,
504, 507
Essen priorities, 150, 30610, 322, 331,
46872, 488
European Confidence Pact, 309, 4801
European Employment Pact, 4801, 486
European Employment Service, 308
European Employment Strategy, 279,
285, 295, 3079, 331, 362, 379,
424, 467509
full employment, 25, 297, 4712, 479,
4826, 4902, 494, 498
horizontal objectives, 472, 4946, 504,
5078
joint reports, 307, 4759
long-term unemployed, 299, 307, 316,
319, 479
Luxembourg process, 46882, 484, 498
mainstreaming, 480, 490, 495

more and better jobs, 483, 492, 498, 509

National Action Plans, 307, 4759, 505,
508
open method of co-ordination, see
governance
participation targets, 4723, 477, 479,
4836, 4956, 501, 5079
quality objective, see social policy
recommendations to States, 470, 47780,
5078
sanctions, 470, 508
services, 483
small and medium-sized enterprises, 94
social partners, 308, 470, 4745, 478,
481, 483, 495, 5035, 5089
soft law, 468, 476
Standing Committee on Employment, 62,
308
subsidiarity, 468
unemployment, levels of, 5, 8, 712,
912, 11617, 1878, 216, 293,
295309, 4678, 4834
unemployment, social exclusion, 31619,
475, 479
young people, 230, 299300, 3079, 319,
417, 467, 479
see also labour market, work
organisation
employment protection:
aim, 26, 230, 296
directives, 2642, 33852
normative approach, 77
employment relationship, see Employee
Information Directive
Employment Title, see employment policy
employers organisations, see social partners
enlargement, 24, 68, 136, 398, 482, 486,
51617, 529
environmental protection, 525
equal opportunities, see equality between
men and women
equal pay (sex equality), 4255, 45865
aims, see equality between men and women
Code of Practice, 332
collective agreements, 48, 460
definition of pay, 45, 4950, 161, 244,
353, 435
direct effect, 468, 353
directive, 45, 489, 401, 459, 525
discrimination, see sex discrimination
employment guidelines, 495
equal value, 45, 48, 244
equal work, 445, 48, 244
material scope of principle, 4450, 464
open method of co-ordination, 486
part-time workers, 281, 4602
pay gap, 501
pensions, 49, 3537, 4602

Index
retirement ages, 55
scope, 43942
survivors benefits, 49
Sullerot Report, 9, 46
temporal limitation, 3537, 45961
see also equality between men and
women, pensions, sex discrimination
equal treatment (sex equality):
Agreement on Social Policy, 239, 2445
burden of proof, see sex discrimination
directives, 4255, 329, 44258, 525
definition of equal treatment, 359,
40611
derogations, 442, 446
direct effect, 535
implementation, 358
occupational requirements, 413
positive action, see equality between
men and women
relationship with Article 141 EC,
44258
remedies, 51, 3713, 411
revision, 54, 4001, 4257, 447, 450,
457
scope, 534, 401, 43042
discrimination, see sex discrimination
dismissal, 41011, 4301
fixed-term work, 288, 2901
harassment, see sexual harassment,
combating of
night work, 159
occupational social security, see pensions
part-time work, 281, 4578, 4624
pregnancy, 15566, 4067, 411
retirement ages, 54, 418
victimisation, see sex discrimination
see also equality between men and
women, fixed-term work, part-time
work, pensions, pregnancy and
maternity, sex discrimination, sexual
harassment, combating of
equality between men and women:
action programmes, 140, 202, 208, 295,
32834, 357
Advisory Committee on Equal
Opportunities, 201, 333
affirmative action, see positive action
(below)
Agreement on Social Policy, 2446
annual equality plans, 427
Annual Equality Report, 330
anti-discrimination directive (Article 13
EC), 398
Charter of Fundamental Rights, 5245
economic aims, 430, 45865
education and training, 3313, 427
equal opportunities, 140, 219, 2712,
279, 299, 302, 307, 319, 328, 442,

579

445, 472, 475, 483, 485, 495, 504,

507, 5245
equalities bodies, 4212, 426, 495
equality, concepts of, 42958
equality principle, 26, 4255, 1312,
1401, 150, 381, 42965, 530, 543
European Womens Lobby, 333
formal equality, 430, 4335, 437,
44358, 525
Framework Strategy on Gender Equality,
400, 4237, 458
fundamental right, 478, 54, 329, 334,
42942, 446, 45961, 4634, 518,
521, 5235, 543
gender auditing, 3304, 495
gender, concept of, 42942
gender balance in decision-making, 3324
gender identity disorder, 4305
gender politics, 465
Global Platform for Action, 330, 334
implementation of, 140, 32834, 4247
judicial interpretation, 4255, 42965,
530
labour market, 239, 244, 32834
legislative review, 35263
mainstreaming, 140, 150, 295, 313,
32834, 379, 401, 4247, 42930,
458, 464, 475, 5245
market integration, 329, 426, 42965
positive action, 200, 2446, 329, 41819,
430, 44258, 464, 5245
positive duties, 4267, 524
quality objective, 493
quotas, 430, 44356
sexual identity, 4305
social aims, 4305, 45865
soft law, 3301, 448
stereotyping, 4314, 4378, 440, 446,
448, 451, 458
substantive equality, 140, 167, 363, 419,
42930, 44358, 464, 525
see also equal pay, equal treatment,
pregnancy and maternity, sex
discrimination
equitable wage, see pay
Essen priorities, see employment
ETUC, see social partners
Euro, see economic policy
Eurocorporatism, 72
European Central Bank, 216, 228
European Coal and Steel Community, 4, 55,
61
Consultative Committee, 61, 256
Mines Safety Commission, 55
European Company Statute, see companies
European Convention on Human Rights:
accession by the Community, 110, 114,
439, 517, 529

580 Index
European Convention on Human Rights
(cont:)
adoption, 3
Charter of Fundamental Rights, 145,
5223, 52839, 544
civil and political rights, 11115
Commission of Human Rights, 114
Court of Human Rights, 114, 1447,
414, 432, 441, 515, 5368
Court of Justice interpretation, 5359, 544
social rights, 51314
Single European Act preamble, 107
Treaty of Amsterdam, 378, 531
see also fundamental rights
European Economic Community, see Treaty
of Rome
European Employment Strategy, see
employment
European Foundation for the Improvement
of Living and Working Conditions, 56
European Investment Bank, 5
European Social Charter (Council of
Europe):
adoption, 3, 112
autonomy, 537
Charter of Fundamental Rights, 111,
520, 526, 5378, 544
economic and social rights, 112, 381,
51314, 520, 537
European Committee of Social Rights,
114, 521, 5378
incorporation of, 11115, 514, 529
implementation by collective agreements,
40
judicial interpretation, 114, 537, 544
protocols, 113
relationship with ECHR, 11314
revised ESC, 11214, 514, 527, 529, 537
Single European Act preamble, 107
Social Chapter (Amsterdam), influence
on, 381
Social Charter (Community), influence
on, 11116, 132, 1428, 150
social citizenship rights, 113
Treaty on European Union, 229
workers rights, 11213
see also fundamental rights
European Social Fund, 5, 26, 229, 239,
308, 314, 31819, 331
European social model, see social policy
European Union Charter of Fundamental
Rights, see Charter of Fundamental
Rights
European Union Treaty (1984 draft), 74,
789, 134
European Works Council Directive:
adoption, 130, 141, 241, 248, 340
justification, 242

proposal, 64, 69, 141, 241, 248

Renault/Vilvoorde affair, 3635, 497
sanctions for breaches, 3635
social partners negotiations, 24850
Special Negotiating Body, 242
voluntary agreements, 315
Europeanisation:
see governance
Eurosceptics, 221
Eurosclerosis, 712
family friendly policies, 1401, 166, 168,
26775, 31112, 332, 458, 475, 483
see also, childcare, parental leave,
pregnancy and maternity
fixed-term work:
abuse, successive fixed-term contracts,
286, 2889
burden of proof, 282
comparable permanent workers, 279, 287
costs, 299
Directive/Framework Agreement, 139,
167, 262, 28591, 373, 4745
derogations, 286, 288
exclusions, 286
implementation, 289
negotiations, 2856
origins, 823, 276, 285
sanctions, 3734
scope, 2859
dismissal, 288
diversity of national laws, 290
employee involvement, 289
employment promotion objective, 285,
289
employment protection directives, 341,
351
Health and Safety Directive, 823, 276
information and training, 289
justifications for discrimination, 288
non-discrimination principle, 2868, 290
non-retrogression, 285, 289
pregnancy, 159, 1647, 288
prevalence, 290
sanctions, 285
small and medium-sized undertakings,
289
Social Charter, 139
temporary workers, 286, 290
women, 286, 2901
see also temporary work
Fontainebleau European Council, 734
flexibility, labour market, see labour
market
flexible firm, see work organisation
framework agreements, see social partners
Framework Employment Directive, see antidiscrimination

Index
free movement:
compatibility of national social laws,
1221, 531
equal treatment, 403
frontier workers, 1378
goods, 1415, 756, 87
labour clauses in public contracts, 138
legislation, 187
persons, 223, 228
recognition of qualifications, 137
removal of barriers, 745
services, 9, 15, 745, 122
social advantages, 13, 137, 402
social security, 138, 533
subsidiarity, 232
third-country nationals, 4034, 523
workers, 1213, 29, 37, 61, 1202,
1378, 229, 4023
fundamental rights:
access to documents, 378
access to employment, 143, 525
access to justice, 528, 532
Agreement on Social Policy, 223
bill of rights proposal, 3278, 378, 513
business, 523, 539
children and young people, 129, 1489,
181, 186, 524, 526
civil and political rights, 11115, 295,
3278, 512, 51821, 537
cultural diversity, 523
collective bargaining, 136, 1447, 278,
303, 5256, 5334, 5368
data protection, 522
dignity concept, 63, 201, 318, 409, 434,
518, 5213, 527, 531
disabled, 131, 137, 14952, 321, 401,
426, 524
dismissal, unjust, 5256, 533
economic and social rights, 112, 295,
381, 51214, 518, 520, 526, 531,
537, 543
education, 114, 523
elderly, 113, 116, 137, 14950, 321, 524
effective remedy, 528, 540
enlargement criteria, 529
equality, 478, 54, 329, 334, 397, 421,
42942, 446, 45961, 4634, 518,
521, 5235, 5301, 543
expression, 522
fair remuneration, 136, 1423, 210, 526
family and professional life, 526
forced labour, 522
fundamental social rights, 1, 6, 73, 107,
130, 13652, 154, 17780, 187,
200, 295, 336, 3812, 461, 492,
499, 5069, 51114, 51745
health and safety, 58, 117, 119, 123, 126,
137, 139, 1412, 149, 521, 525, 527

581

housing, 113, 526

identity, 409, 421, 4305
indivisibility concept, 295, 3278,
51114, 520, 537, 543
information and consultation, 137, 141,
339, 5257
liberty and security, 522
marriage and family rights, 41415, 536
migrant workers, 113, 13940
non-discrimination, 396401, 409,
41516, 421, 4323, 441, 5234,
530, 532, 538, 543
occupation, 523
paid leave, 17780, 5402
parental leave, 267
part-time work, 276
pregnancy and maternity, 129, 135,
1401
private and family life, 41416, 421, 441
religion and conscience, 522
right of association, 8, 136, 142, 1447,
239, 5223, 5367
right to organise, 112, 278, 534
right to strike, 86, 1447, 239, 243,
5334, 539
right to work, 526
Single European Act preamble, 107
social protection, 113, 136, 142, 14852
social security, 113, 119, 148, 519, 526,
528, 532
Treaty of Amsterdam, 378, 3812, 531,
542
Treaty on European Union, 2289, 292
vocational training, 137, 148, 151
working conditions, 1368, 343, 496,
521, 5267, 532
working time, 129, 1389, 5278
see also Charter of Fundamental Rights,
citizenship, European Convention on
Human Rights, European Social
Charter, Social Charter
gender equality, see equality between men
and women
general principles of law, see judicial
interpretation
Giscard dEstaing, Valery, 517
globalisation, see labour market
Goldsmith (Lord), 51516, 520, 526, 533
governance:
benchmarking, 307, 332, 424, 470,
4768, 4846, 499, 5058
civil dialogue, 3268, 380
civil society, 119, 25455, 266, 322,
3248, 478, 484, 5013, 51517,
542
citizens movements, 3267
Comit des Sages Report, 3278, 513

582 Index
governance (cont:)
conventions, ad hoc, 328
co-operation, 498500, 505
democratic deficit, 377
democracy principle, 25566, 334, 518
European Council role, 48491
Europeanisation, 82, 154, 461, 4856,
505, 508
good governance, 502, 505
governance, new modes of, 375, 382,
469, 478, 481, 485, 498, 505
harmonisation, alternatives to, 469, 485,
487, 498509
high-level groups, 500, 503
indicators, 4769, 484, 48990, 4936,
499500, 508
legitimacy, 24666, 276, 293, 317,
3757, 398, 427, 482, 484, 503,
506, 51315, 518, 529
multi-level governance, 427, 481
NGOs, 322, 3267, 424, 4267, 484, 516
open method of co-ordination, 424, 469,
48191, 4946, 498509, 545
participatory approach, 32634, 478,
501, 506
partnership, 469, 474, 478, 481, 4845,
490, 496, 5012, 505, 509, 545
scoreboards, 499501
transparency, 335, 375, 3778, 478, 482,
51517
White Paper, 478, 5023, 5056
see also citizenship, legislation, soft law,
subsidiarity
Growth, Competitiveness, Employment
(White Paper), 295301, 303, 310,
331, 335, 344, 468, 492
Gyllenhammer Report, 314
Hanover European Council, 100
harmonisation, see internal market,
legislation, social policy
health, see health and safety, public health
health and safety, 559, 91105, 15486
accidents and diseases, 8, 55, 57, 95,
105, 494, 500
action programmes, 567, 96100, 142,
500
advisory committee, 56, 61
agency, 142
Agreement on Social Policy, 239
balanced participation, 64
Charter of Fundamental Rights, 521,
525, 527
chemical agents, 338
daughter directives, 58, 101, 105, 156
disabled persons, 412, 419
ergonomic approach, 58, 95101, 154,
168, 311, 494

fixed-duration and temporary workers,

823, 276, 281
framework directive (1980), 559, 100
framework directive (1989), 59, 83,
1005, 1223, 1556, 171, 281,
366, 527
free movement of goods and, 878
harmonisation, 767, 90, 92, 959, 141,
153, 234
hazardous agents, 567, 142
health, concept of, 57, 59, 90, 959, 154,
1689
hygiene, 8, 55, 59, 95, 97, 142
level of protection, 8491, 93, 100, 337
machinery, 87
mutual recognition principle, 756
personal protective equipment, 87
pregnancy, 57, 15468
quality objective, 493
risk assessment, 95, 1025
safety, 56, 59, 959, 142, 149, 1545,
1689
Salisch report, 979, 154
small and medium-sized enterprises, 934,
1789, 2401
Social Charter, 58, 117, 119, 123, 126,
137, 139, 1412, 149
subsidiarity, 93
working environment, 26, 568, 73, 79,
82, 88108, 141, 1546, 168, 239,
311, 419, 527
working time, 16881
young people, 57, 137, 1489, 1816
see also public health
Herzog, Roman, 516
home working, 125, 279
homelessness, 31617
Hoover affair, 224, 307
housing, 114, 117, 140, 151, 319, 324,
393, 4023, 526, 528
human rights, see fundamental rights
indirect effect, see judicial interpretation
illegal work, 77, 185, 325
immigration policy, 4034
industrial relations, 31, 60, 62, 250, 363,
492, 4967
see also collective agreements, social
partners, labour law
information society, 485
insolvency:
atypical workers, 341
compensation payments, 32, 342
creditors rights, 3403, 351
cross-border insolvencies, 342
damages claims, 30
directive, 2642, 3403
derogations, 323, 341

Index
direct effect, 3667
reference periods, 3412
revision, 28, 3403
employees rights, 3403, 351
guarantee institutions, 2930, 3403
insolvency, definition of, 29, 3403
liquidation proceedings, 3403, 351
old age benefits, 30
social security, 30
survivors benefits, 30
transfer of undertakings, 343, 3512
internal market:
benefits, 912
completion, 745, 78, 90, 105, 138, 187,
343
companies, 497
definition, 80
derogations, 8091, 96, 187, 213, 219,
240
disability needs, 394
establishment of, 724, 7891, 94, 296
harmonisation, 76, 83, 86, 8991, 213,
380
market citizen, 118
mutual recognition principle, 756, 91
sex equality, 42965
Scoreboard, 500
Social Charter, relationship with, 126,
1324, 1378
social dimension of, 7391, 107, 111,
11920, 134, 153, 1878, 190, 236,
310, 352, 498
subsidiarity, 232
Sutherland Report, 336
Treaty provisions, material scope, 7991
unfair advantages, 2267
White Paper, 745, 81, 901, 109
women, effects on, 329
working environment, 8990
see also common market, health and
safety, Single European Act
International Labour Organisation:
adherence by Member States, 529
Convention on equal remuneration, 45
Convention on child labour, 148, 181
Convention on labour inspection, 55
Convention on maternity, 168
Convention on night work (bakeries), 14
Conventions on night work (women),
159
Convention and Recommendation on
part-time work, 1323, 27785
Convention on the right to organise,
534
Convention on social security, 148
Declaration on Fundamental Principles,
514
fundamental social rights, 513

583

implementation by collective agreements,

40
labour is not a commodity principle, 132,
522
Social Charter, ILO sources, 111, 116,
132, 1428
social justice philosophy, 2778
Treaty on European Union, 229
tripartitism, 62, 69, 256
universal labour standards, 23
workers participation, 624, 69
Japan, 71, 2967, 304, 467, 472
job sharing, 268, 270
judicial interpretation:
democracy principle, 2556
direct applicability, 52
direct effect, 4355, 80, 88, 158, 197,
353, 3679
duty of interpretation, 410, 5345
effectiveness principle, 434, 512, 204,
36674
fundamental rights, 229, 461, 53044
general principles of law, 47, 11314,
397, 432
indirect effect, 43, 203
legal certainty, 3534, 371, 4601
national courts, role, 502, 36474
non-contractual liability, 3679
judicial review, 88, 25863, 395, 421, 532
retroactive effect of rulings, 3537,
45961
State, concept of, 545
state liability, 46, 55, 36674
subsidiarity, 2335
supremacy principle, 434, 460, 539
see also remedies
judicial review, see judicial interpretation
justice and home affairs, 217
Kahn Commission, 3245
Keynesians, 72
Kohl, Helmut, 69
labour costs, see work organisation
labour law:
co-determination, 239
collective bargaining, 8, 60, 66, 113, 142,
1447, 212, 219, 2434, 2634,
5257, 5334, 5368
collective defence, 239, 241, 243
countervailing power, 243
diversity of legal systems, 1012, 31, 60,
66, 237, 519
exclusions from the social provisions, 11,
144, 239, 2424, 533
lock-outs, 144, 239
representation, 239, 241

584 Index
labour law (cont:)
reform, 313
right to strike, see fundamental rights
termination of employment, 239
third-country nationals, conditions of
employment, 239
see also collective agreements, dismissal,
fundamental rights, social partners
labour market:
active policies, 150, 216, 298300, 306,
309, 321, 473, 479
access, 152, 331, 525
flexibility, 72, 77, 181, 2678, 271, 279,
290, 294, 297301, 303, 310,
34452, 481, 509
functioning, 496, 504
globalisation, 294, 31112, 314, 326,
468, 4734, 482, 497, 502, 506, 508
mobility, 216, 284, 289, 500
participation, see employment policy
reform, 299, 468
rigidities, 2979, 473
sectoral programmes, 486
speed of change, 194, 276
see also employment policy, work
organisation
Laeken European Council, 487, 517
legislation:
adoption of framework agreements,
2515
Agreement on Social Policy, 2217,
24666
civil society, role of, 2545
co-operation procedure, 254
co-decision procedure, 79, 254, 377, 380,
499
codification, 3368, 3424, 34763
collective agreements, implementation by,
10, 402, 1334, 23940, 2634,
272, 364
Community legal order, sui generis
nature, 127
compliance, 3345, 36374
consolidation, 295, 33463
consultation procedure, 254
decisions, 254, 260
democratic principle, 2556
deregulation, see work organisation
directives, use as a tool, 11, 13, 93, 152,
225, 239
enforcement, 3345, 36374
framework agreements, see social partners
framework directives, 559, 100
general powers, 114, 140, 146, 322
harmonisation, see governance, internal
market, social policy
legislative review, 33463
qualified majority voting, 804, 935,

109, 168, 185, 2356, 23942, 247,

252, 380, 499
quality objective, see social policy
simplification, 275, 3359, 3412, 508,
517
unanimity rule, 25, 69, 824, 114, 140,
187, 213, 23943, 247, 252, 379,
523, 533
veto, circumvention of, 155, 233
see also governance, soft law, social
policy, subsidiarity
legitimacy crisis, see governance
lifelong learning, see education
Lisbon European Council, 472, 48291,
4945, 499, 508
Lubbers, Ruud, 220
Madrid European Council, 2934
Maastricht, see Treaty on European Union
Major, John, 2201
management and labour, see social partners
marital status, 41516, 438, 442, 536
market functioning, see common market,
internal market
maternity, see pregnancy and maternity
migrant workers, 113, 139, 324
Molitor Report, 3367
Mitterand, Franois, 69, 734
multi-speed Europe, 377
mutual recognition principle, 756, 80, 91
nationalisation, see public ownership
nationality discrimination, see nondiscrimination principle
neo-liberalism, 72
Nice European Council, 485, 489, 491,
493, 500
non-discrimination principle, see antidiscrimination
occupational pensions, see pensions
Ohlin Report, 35, 1213, 16, 302
open method of co-ordination, see
governance
OECD, 473
paid holidays, see working time
parental leave:
acquired rights, 273
burden of proof, 358
childcare, 26870
Commission survey, 26970
Directive/Framework Agreement, 242,
253, 262, 26675
application by management and labour,
273
derogations, 270, 2725
implementation, 270, 2723

Index
minimum standards, 2703
non-retrogression, 272
substantive provisions, 2715
dismissal, 273
equality objective, 271, 274
family responsibilities, 271
flexibility, 2678, 271
labour market objective, 267, 271
legal challenge, 25963
legislative proposals, 141, 168, 249, 267
non-transferable right, 272
paid leave, absence of, 242, 2702,
2745
right to return, 273
small and medium sized enterprises, 270
take-up rates, 270, 274
time offforce majeure, or urgent
family reasons, 271, 273
work/family life balance, 271, 311
see also family friendly policies
Paris Summit (1972), 24, 61, 71, 508
part-time work:
burden of proof, 281
comparable full-time workers, 133, 278,
2803
competitiveness objective, 279
costs, 299
Directive/Framework Agreement, 133,
139, 262, 266, 27585, 4745
derogations, 2823
exclusions, 2801
origins, 69, 823, 1323, 139, 2767,
285
scope, 27985
economic activity, 121
employment conditions, 2801
employment promotion objective, 279,
2835
employment protection directives, 341,
351
equal treatment, 83, 278, 281, 4578,
4604
Framework Health and Safety Directive,
281
increase in part-time work, 27980
ILO Convention and Recommendation,
1323, 27785
justifications for discrimination, 2803,
3612
non-discrimination principle, 27985,
291
pension schemes, 4603
sex discrimination, relationship with, 281
small and medium-sized undertakings,
277, 280
Social Charter, 139, 276
social protection, 279, 285, 320
social security, 2801, 285

585

voluntary transfers, 278, 2834

work organisation objective, 279, 284,
311, 504
women, 268, 281, 284, 290, 328
paternity leave, see parental leave
pay:
anti-discrimination directives, 401
equitable wage, 1434, 20913
exclusion from social legislation, 11, 86,
144, 210, 239, 2423, 271, 275,
281, 399
fair remuneration, 112, 1423, 210, 526
low pay, 210, 299
minimum wages, 16, 143, 21011
parental leave, 270, 275
performance-related, 300
public holidays, 242
quality objective, 4934
sick pay, 242
standard of living, 143
wage costs, 313
wage inequalities, 212
wage structures, reform of, 4734, 481
young workers, 211
see also equal pay
pensions:
actuarial factors, 356, 418
additional voluntary contributions, 355
atypical workers, 83
Barber Protocol, 50, 3536
collective agreements, 460
compulsory funds, 19
equal pay, 4950, 3536
equal treatment, 329, 356, 418
individual insurance schemes, 355
national autonomy, 18
national strategy reports, 487
Occupational Social Security Directive,
3527, 362
codification, 3527
derogations, 3547
revision, 3557, 362
open method of co-ordination, 4867,
500
pensionable ages, 354, 3567, 418
pension schemes, 3556, 4603
right to join a pension scheme, 354,
45961
specific advantages for women, 245
survivors pensions, 354
temporal limitation, 3537, 45961
see also age, equal pay, equal treatment,
social security
PEPPER Recommendation, 315
police and judicial co-operation in criminal
matters, 394
posted workers, 15, 122, 138, 192
poverty, see social exclusion

586 Index
pregnancy and maternity:
antenatal examinations, time off, 157
burden of proof, 358
Directive, 15568
implementation report, 15960
origins, 98, 129
discrimination, 1627, 4067, 41011
dismissal, 1578, 1647, 4067, 41011
equal treatment rationale, 15568
fixed-term workers, 159, 1647, 288
health and safety rationale, 57, 95,
15568, 212
justifications for discrimination, 1627
maternity allowance, 157, 1604, 166
maternity leave, 157, 1604, 166, 212
night work, 157, 159
pay, concept of, 161, 1634
pension rights, 162
risk assessment, 1567
sickness linkage, 1603
Social Charter, 1401, 156
special protection, 156, 158, 161, 1668
see also sex discrimination
private sector, 393, 401, 484
privatisation, 367
productivity, 238, 298, 3001, 304, 312,
492, 4967, 500
proportionality, 173, 231, 2345, 378, 399,
41314, 41618, 446, 453, 4567,
539
protectionism, 2989, 344
Protocol on Social Policy, see Agreement on
Social Policy
public health, 18, 75, 78, 85, 117, 232,
319, 393, 402, 414, 500, 525, 531
public ownership, 35, 473
public/private partnerships, 473, 484
public sector, 313, 393, 4013
public security, 41314, 418
public spending, 2989, 493
quality, see social policy
racism and xenophobia:
asylum seekers, treatment of, 325
civil society, 326
combating of, 3236, 394, 4234
codes of practice, 324
ethnic or racial origin, 3245, 524
European Year Against Racism, 325, 396
fundamental rights, 400, 409
integration of racial or ethnic minorities,
325
Kahn Commission, 3245, 395
mainstreaming, 398
migrant workers, 3245
multiple discrimination, 394, 404, 422
pay discrimination, 21011

police and judicial co-operation, 397

Race Equality Directive, 206, 210,
399423
burden of proof, 408, 4202
comparative disadvantage test
(discrimination), 360, 40610
compliance, 4223
criminal law, 421
derogations, 4034, 41316
direct discrimination, definition of, 406
equal treatment bodies, 4223
equal treatment principle, 404, 40611,
413, 41923
grounds of discrimination, 4046
group litigation, 408, 4202
harassment, 406, 40810
indirect discrimination, definition,
4068
instruction to discriminate, 406, 410
legislative proposals, 324, 326,
393400, 409
national laws and practices, 40810,
4202
objective justification (discrimination),
40710
occupational requirements, 41314
positive action, 41819
preamble, role of, 408
proportional test (discrimination), 360,
4078
racial or ethnic origin, 4046
religion or belief, scope, 405
remedies, 374, 400, 41923
scope, 399404, 419, 531
victimisation, 406, 41011
race discrimination, 3245
racial harassment, 2067, 324
racism, 316, 319, 3236, 381
Racism Monitoring Centre, 396, 513
Social Charter, 131
social exclusion, 316, 319
soft law initiatives, 3236, 380
substantive equality, 419
third-country nationals, 3245, 381,
4034
Treaty provision, 3246, 379
UN Convention, 410
UN World Conference against Racism,
397
xenophobia, 316, 319, 3236, 381
redundancy:
equal pay, 49
lay-offs, 299300
part-time work, 284
payments, 83, 339
voluntary, 339
see also collective redundancies
Reflection Group, 265, 293, 376

Index
religion and/or belief:
Charter of Fundamental Rights, 5223
discrimination, 131, 324, 379, 410
Framework Directive, provisions of,
398423
burden of proof, 421
definition, 405
derogations, 398, 41618
discrimination, 410
essential functions, 418
ethos, religion or belief, 41617
public security, 414
Race Equality Directive, 405
religious diversity, 325, 523
multiple discrimination, 394
Treaty provision, 379
see also anti-discrimination
remedies:
access to justice, 420, 422, 491, 521,
528, 532
calculation of damages, 373
compensation levels, 372, 419
criminal law, 421
effectiveness principle, 434, 512, 196,
367, 400, 411, 41923, 528, 540
equivalence principle, 370
fines, 3646
interest, 373
locus standi, 420, 422
national procedural autonomy, 3589,
36474, 4203
national remedies, 36474, 420
penalty payments, 3656
retroactive claims, 373
right to reparation, 36771
sanctions, 3714, 41923
time limits, 370, 422
victims rights, 420
see also judicial interpretation
remuneration, see pay
Renault/Vilvoorde affair, 3635, 468, 497
Research and development, 485
Roosevelts New Deal, 24
Salisch Report, 969, 154
Schengen acquis, 376
sanctions, see remedies
self-employed, 118, 120, 123, 401, 474
sex discrimination:
burden of proof directive, 249, 282, 332,
35763, 4068, 4201
direct discrimination, 49, 1637, 332,
35960, 4068
disadvantage test, 360, 4068, 457
harassment, see sexual harassment,
combating of
indirect discrimination, 49, 332, 35963,
4068, 449, 4624

587

job evaluation, 332

justifications for, 49, 1627, 2823,
35963, 408, 459, 4624
multiple discrimination, 394, 401
night work, 15960
part-time workers, 2813, 291, 3612,
4605
positive action, see equality between men
and women
pregnancy, 1578, 1617, 4067, 411
proportional test, 3603, 4068, 457
remedies, 51, 358
reverse discrimination, 443
same-sex discrimination, 43442
Social Charter, 131
transsexuals, 43042
Treaty provision (Article 13 EC), 379,
4247
victimisation, 411
see also anti-discrimination, equal pay,
equal treatment, equality between
women and men, sexual harassment,
combating of
sex equality, see equality between men and
women
sexual harassment, combating of:
action programmes, 202, 208
Advisory Committee on Equal
Opportunities, 201
Commission study, 209
conduct, physical, verbal or non-verbal,
2057
conduct, unwanted, unreasonable and
offensive, 2045, 209
Council Resolution, 202
criminal offence, 2067
definition of sexual harassment, 2045,
209, 409
dignity concept, 201, 409, 5212
equal treatment directive, relationship
with, 2019, 409
European Social Charter (revised), 522
evaluation report, 3323
judicial interpretation, 2078
legislative proposals, 2089
national measures to combat, 2069
procedures, 2058
Recommendation and Code of Practice,
2019, 409
sanctions, 207
unfair dismissal, 208
victim support, 207
vulnerable groups, 206
working environment, 2056, 209
sexual orientation:
Charter of Fundamental Rights, 41516,
5356
combating discrimination, 379

588 Index
European Convention on Human Rights,
538
Framework Employment Directive,
provisions of, 398427
burden of proof, 421
definition, 4045
ethos, religion or belief, 417
marital status, 41516
public security, 414
Equal Treatment Directive, 43042
European Convention on Human Rights,
441
fundamental rights, 41416, 43542,
5356
gender, concept of, 42942
harassment, 206
identity, 421, 4305
multiple discrimination, 394
same-sex partnerships, 41516, 438, 442,
5356, 538
sex, concept of, 42942
Treaty provision, 131, 379, 395
UN International Covenant on Civil and
Political Rights, 438
see also anti-discrimination
Social Action Programmes, see social
policy
social advantages, 13, 137, 402, 531
single currency, see economic policy
Single European Act, 26, 31, 578, 71108,
10917, 142, 149, 154, 168, 215
single market, see internal market
small and medium-sized undertakings, 934,
104, 1789, 205, 23941, 251,
25863, 270, 277, 280, 289, 305
Social Chapter (Amsterdam), 37988
adoption, 11, 26, 32, 44, 60, 1301, 146,
150, 379
equalities provisions, 244, 246, 3802,
41819, 44265
European Social Charter, as a source, 381
exclusions, 86, 144, 146, 210, 271, 275,
281, 399
fundamental social rights, 131, 187,
3812, 513, 531, 542
legislation, 285, 505
Social Charter, as a source, 130, 381
social partners, 24666
social provisions, 37988, 399, 4612,
533
subsidiarity, 235
third-country nationals, 140
see also social policy, Agreement on
Social Policy
Social Chapter (Nice), 4859, 499500
Social Chapter (Rome), 610, 237
Social Chapter (Single European Act),
7980, 92, 95, 152

Social Charter (Community), 10952,

153213
action programme, see social policy
Agreement on Social Policy,
implementation, 130, 220, 233, 236,
242, 291, 338
annual reports, 136, 151, 237
anti-discrimination concept, 1312,
401
atypical workers, 139
Charter of Fundamental Rights, 520,
526, 532, 544
citizens rights, 11520
drafts, 11520
emergence, 78, 91, 115
equality principle, 1312, 137, 1401,
150
ESC sources, 1116, 132, 1428, 150
freedom of movement, 1368
fundamental social rights, 13652
ILO sources, 111, 116, 132, 1428
implementation provisions, 1367, 237,
23940
internal market, relationship with, 126,
1324, 1378
non-retrogression principle, 1356, 240
preamble, 1306, 518
proof of employment, 139
Social Chapter (Amsterdam), source of,
130, 381
social citizenship, 73, 11120, 126, 131,
137, 149, 316, 51213
social values, 303
soft law status, 115, 120, 12536, 512
subsidiarity, 120, 125, 1335, 143, 149,
544
Treaty competence, 120, 128, 131, 136,
1424, 149, 152, 530
United Kingdoms opposition, 116, 128
workers rights, 11525, 512
see also fundamental rights
social citizenship, see citizenship
social dialogue, see social partners
social development, World Summit, 3267
social dimension, see internal market, social
policy
social dumping, 3, 767, 119, 143, 211,
2234, 292, 306, 470
social exclusion:
combating social exclusion, 216, 31628,
483, 48892, 499, 528
common indicators, 48990
demographic changes, 317
dignity concept, 318
disability, 318, 321
education, 318, 483
health, 318
homelessness, 31617

Index
inclusion, 316, 3268, 395, 399, 4856,
48992, 509
income disparities, 211, 31718, 4901
labour market, 475
mainstreaming, 489
multidimensional phenomenon, 31618,
490
older people, 321
open method of co-ordination, 4856,
48891, 499501
participatory approach, 3268
poverty, 216, 31618, 321, 327, 48890,
495, 528
programme (2002), 489
racism and xenophobia, 31618
rural deprivation, 316
services, access to, 31618
skills gaps, 316, 483
Social Charter, 11617, 131, 316
social solidarity, 31618, 320, 381
Treaty of Nice, 489, 499
unemployment, 316
urban deprivation, 316, 319
women, 320
young people, 319
social justice, 12, 63, 236, 2778, 286, 294,
303, 395, 4324
social partners:
advisory committees, 61
autonomy, 21, 77, 2623
balanced participation, 2467, 251, 257
bargaining, 2479, 264
CEEP, 106, 2201, 246, 257, 259, 261,
277, 285
Commission Communications, 2579,
266
conflict resolution, 503
consultation process, 2479
corporatism, 246, 266
criteria for consultation, 2579
democratic legitimacy, 24966, 291, 505
employers organisations, 343, 401
employment policy, 308, 470, 4745,
478, 481, 483, 495, 5035, 5089
ETUC, 106, 2201, 246, 257, 259, 261,
271, 275, 277, 2856, 288, 290
European collective bargaining, 78, 147,
219, 292
European Industrial Relations Area, 62,
778, 1056
framework agreements, 78, 1058, 130,
148, 219, 223, 227, 236, 241, 243,
24692, 373, 4745
joint committees, 61
joint opinions, 106
judicial review, locus standi, 25863
management and labour, identity of,
25662

589

participation, right of, 260

representativeness, 107, 227, 24966,
267, 274, 291, 505
sectoral agreements, 601, 2501, 253,
264, 505
social dialogue, 26, 5962, 73, 789,
1058, 1478, 216, 219, 237, 243,
24750, 253, 2634, 2734, 292,
424, 426, 493, 497500, 5045
subsidiarity, 2646, 484
trade unions, 657, 243, 343, 364, 401,
523, 540
Treaty on European Union, social
partners accord, 2201, 246
UEAPME, 227, 2556, 25963, 277,
285
UNICE, 106, 108, 2201, 246, 257, 259,
261, 275, 277, 285, 290, 3367
Val Duchesse meeting, 62, 106
work organisation, 300, 31415
see also collective agreements, employee
involvement, governance, legislation
social policy:
Action Programme (1974), 9, 21, 236,
213, 267
Action Programme (1989), 73, 98, 115,
119, 126, 12843, 14752, 153213,
3345, 500
Action Programme (1995), 295, 308,
318, 320, 327, 332, 335, 338, 352,
373
Action Programme (1998), 340, 395, 498
autonomy, 238, 309, 461, 508
common objectives, 498, 500
competitiveness objective, 1878, 2378,
292, 3367, 34452
convergence, 27, 187, 301, 3046,
4989
decentralised approach, 77, 923
diversity, 187, 199, 2378, 243, 292,
4678, 493
employment promotion, see employment
policy
European Forum on Social Policy, 327
European Social Area, 62, 75, 778, 96
European social model, 116, 292,
293374, 4678, 483, 4867, 4913,
508
equality principle, see equality between
men and women
Green Paper (1993), 153, 2945, 3013,
318, 324, 326, 468
harmonisation, 56, 13, 2342, 559,
757, 91108, 135, 187, 191, 200,
230, 234, 2378, 3046, 343, 469,
4879, 496, 4989, 534
human face, 24
middle way, 778, 923

590 Index
social policy (cont:)
minimum standards, 31, 72, 93105,
135, 187, 234, 2379, 244, 261,
291, 3012, 3046, 492, 4989,
506, 5389
modernisation, 4678
neo-voluntarism, 119, 502
non-retrogression principle, 8, 1356,
192, 240, 272, 283, 285, 289, 538
normative approach, 77, 923, 238
open method of co-ordination, 48591,
498509
Marshalls definition, 24, 113
productive social policy, 492, 496
quality objective, 155, 26692, 3358,
469, 482, 491509, 511
reflexive harmonisation, 499
Resolution on Social Policy (1994), 295,
3056, 3301
social cohesion, 482, 492
social citizenship, see fundamental rights
social constitution, 51112, 5445
social dimension, 728, 91, 93, 1078,
116, 119, 125, 132, 1878, 236,
305, 310, 316
social entitlements, 512, 526, 5435
social Europe, 1256, 216, 236
social market, 109
Social Policy Agenda (2000), 286, 340,
469, 482, 4856, 491509, 511
Sozialstaat, 11619, 545
Social Summit, 503
social values, 2945, 302, 336, 376,
3789, 382, 461, 4645, 51112, 518
solidarity, 1819, 110, 131, 150, 22935,
3034, 31314, 31618, 320, 473,
4901, 491, 508, 51113, 51819,
521, 5258, 531, 540, 543
subsidiarity, 12, 187, 199, 266, 306, 335,
498
third way, 77, 473, 483
twin-track approach, 2207, 236
White Paper (1994), 153, 235, 242, 276,
295, 3025, 308, 318, 324, 335,
3378, 340, 363, 365, 468, 491
see also Agreement on Social Policy, Social
Chapter (Treaties), Social Charter
social protection:
Agreement on Social Policy, 237, 239, 242
anti-poverty programmes, 321
atypical workers, 83, 279
common criteria, 211, 320
convergence, 78, 320
demographic factors, 320, 418, 4867
European model, 528
European Social Charter, 113
Framework Employment Directive, 404
health care, 319

high level of, aim, 20, 229, 236, 305

High-Level Working Party, 487
inequalities, 3201
labour market policy, 321
modernisation, 48690, 499
national competence, 232, 402
non-retrogression, 100
open method of co-ordination, 48590,
499500
Race Equality Directive, 402, 531
rising costs, 317, 3201, 418, 4867
Social Charter, 116, 142, 14852
social exclusion, combating, 3201
Social Protection Committee, 487, 489
soft law, 320, 486
solidarity, 320
sustainable levels, 474, 483, 487, 501
Treaty of Nice, 4878, 499500
unemployment, 320
social security:
advisory committee, 61
Charter of Fundamental Rights, 519,
526, 528, 532
competence, 402
competition law, 1821
co-ordination of national systems, 5,
1213, 119, 138
costs, 242, 488
equal treatment, 3712, 418
European Social Charter, 113
Framework Employment Directive, 404
free movement rules, 1821, 138
harmonisation, absence of powers, 152,
239
horizontal directives, 393
invalidity benefits, 41718
occupational social security, see pensions
parental leave, 2745
Race Equality Directive, 402, 531
reform, 216, 313, 47881
retirement benefits, 323, 41718
sickness allowance, 1601
social assistance, 113, 152, 211, 526,
528, 532
Social Charter, 148
social insurance, 18
targeting, 302
Treaty of Nice, 488
Treaty of Rome, 8
Treaty on European Union, 219
unemployment benefits, 299
welfare state, 119, 238, 302, 486, 488,
509, 528, 545
see also equal treatment, pensions, social
protection
social services, 492, 528
social values, see social policy
Socrates programme, 309, 319

Index
soft law, 12838, 20013
categories, 12836, 2024, 210, 269
Charter of Fundamental Rights, 11112,
491, 512, 51416, 518, 52945
concept in international law, 1267
discourse, iterative process, 476
dynamic nature, 12830, 2003, 3236,
501
effectiveness, 154, 2024
hard law, relationship with, 12730,
2009, 213, 469, 506, 5423
inter-institutional, 12, 542
judicial interpretation, 1278, 2024,
2078
quasi-legislation, 200
legal scope, 12730, 154, 20213
open method of co-ordination, see
governance
programmatic activity, 72, 1289,
20012, 293334, 37981
recommendations, 128, 2019, 269
reflexive effect, 12830, 544
Social Charter, 115, 120, 12536, 20012
subsidiarity, 235, 378, 544
technocratic, 509
White Paper on Social Policy, 3045, 468
see also governance
Soviet Union, 217
Spaak Report, 5, 12, 16, 23
Spinelli, Alterio, 74
standard/non-standard workers, 276, 3001
standardisation, 80
Starting Line Group, 326
state liability, see judicial interpretation
Stockholm European Council, 486, 494
Strasbourg European Council, 73, 116,
1256, 187
structural funds, 5, 26, 229, 239, 308, 314,
31819, 331, 333, 475, 478, 498,
500
subsidiarity, principle of, 79, 1335, 2305,
395
added value, 187, 233, 291, 313, 318
Agreement on Social Policy, 235, 243
attribution of powers, 231, 234
Charter of Fundamental Rights, 520,
5289, 544
competence, 2325, 520
criteria for legislation, 187, 2325, 336,
341, 399
decentralisation, 2313, 470, 484, 529
dynamism, 233, 498
economic and monetary union, 216
Edinburgh European Council, 2323, 237
effectiveness principle, 2303
health and safety, 93, 173
integration, 2313
judicial interpretation, 2335, 4614

591

legal scope, 134, 2305

mutual recognition principle, 91
open method of co-ordination, 485
proportionality, 231, 234
Protocol, 2345, 378
Social Chapter (Amsterdam), 235
Social Charter, 120, 125, 1335, 1423,
149, 544
social partners, 2646, 270, 484
social policy, 12, 187, 227, 22935, 266,
292, 306, 31314, 335
soft law, 235, 292, 378
see also competence
subsidies, 298
Sullerot Report, 9
supremacy principle, see judicial
interpretation
sustainable development, 485
Sutherland Report, 336
Tampere European Council, 397
taxation, 313, 4734, 47881
Thatcher, Margaret, 58, 69, 734, 79,
1078, 109
temporary work, 69, 82, 1245, 139, 262,
276, 2867, 290, 320, 341, 351,
496, 500, 532
see also fixed-term work
third-country nationals, 239, 324, 381,
4034, 519, 523
Tindemans Report, 110, 512
trade unions, see social partners
transfer of undertakings:
Acquired Rights Directive, 2642, 34252
codification, 344, 34752
consolidation, 342, 352
derogations, 33, 351
optional provisions, 3512
revision, 28, 345, 38, 87, 340,
34252
scope, 33, 124, 34852
collective agreements, 33
Commission Memorandum, 347
contracting out, 378, 34450
dismissal, level of protection, 345
economic entity test, 38, 34450
employees refusal to transfer, 36, 522
employment protection objectives, 33,
389, 34452
hiving down of companies, 34
information and consultation, 3940, 64,
351
insolvency, 34, 343, 351
labour market flexibility objective, 343,
34752
market imperative, 33, 389
occupational pensions, 33
public sector, material scope, 358, 350

592 Index
transfer of undertakings (cont:)
takeovers, 34
transfer, definition of, 334, 368, 34452
transnational transfers, 343
transparency, see governance
transport, 531, 541
transsexuals, 4305, 437, 440
Treaty of Amsterdam, 37591
adoption, 150, 468
anti-discrimination provisions, see antidiscrimination
area of freedom, security and justice, 376,
518
closer co-operation, 3778
Danish referendum, 377
declarations, 416
differentiated integration, 227, 379
Employment Title, see employment policy
entry into force, 291
fundamental rights, 378, 3812, 531, 542
intergovernmental conference, 265, 293,
325, 338, 3756, 467
mainstreaming provisions, 37981
opt-outs, 3767
protocols, 3768
social provisions, see Social Chapter
(Amsterdam)
social values, 3789, 382
transparency clause, 3778
Treaty of Nice:
adoption, 491, 51617
differentiated integration, 227
intergovernmental conference, 131, 376,
51617
post-Nice Agenda, 512, 51617, 5435
see also Social Chapter (Nice)
Treaty of Rome:
equal pay, 4, 6, 9, 10, 219
revision of, 79, 109
social provisions, 212, 20, 23, 1867,
213
trade liberalisation, 74
Treaty on European Union, 21592
democratic legitimacy, 217
differentiated integration, 218
economic objectives, 22830, 238, 3789,
381
European Union models, 21718
Final Act, 225
fundamental rights, 2289, 292
intergovernmental conference, 215, 217,
219, 225
opt-outs, 218, 2207, 233, 2423, 292
political union, 215, 218, 229, 292
ratification, 375
referendums, 375
single institutional framework, 218
Social Chapter, 2207, 23646

three pillars, 2179, 376

Treaty framework, 22830
unemployment, see employment
UNICE, see social partners
United Nations, 112, 181, 397, 41011,
439, 513, 5201
United States, 71, 2968, 304, 405, 411,
443, 445, 467, 4723, 479, 493
Vienna Convention, 1267
variable geometry, 226, 3767
vocational training:
action programmes, 26
anti-discrimination, 401, 417, 427
competence, 531
convergence, 78
disabled persons, 319, 3212
employment policy, 298300, 3069, 473
equalities, 53, 204, 245, 319, 32834
fixed-term work, 287, 289
labour market policy, 72
Leonardo programme, 309
part-time work, 284
performance indicators, 500
quality objective, 493, 495
Social Charter, 116, 137, 148, 151
social dialogue, 61
social exclusion, 31626
Treaty of Rome, 8
Treaty on European Union, 219, 229
30
work experience, 401
work organisation, 31015
young workers, 183
wages, see pay, equal pay
welfare state, see social security
work organisation, 31015
adaptability, 298, 302, 309, 312, 314,
352, 412, 472, 4745, 492, 495,
5039
career breaks, 268, 270, 504
deregulation, 59, 72, 745, 80, 107,
1356, 221, 283, 2979, 3358,
4734, 491, 505
education and training, 31015, 474
employment contracts, 474
flexibility and security, 279, 283, 2989,
31015, 474, 493, 496, 509
flexible contracts, 276
flexible firm, 267, 300, 312, 363, 474
flexible labour markets, see labour market
flexible working time, 277, 283, 29930,
31115
Fordism, 302, 312
Green Paper, 279, 284, 295, 299,
31015, 474

Index
labour costs, 238, 299, 303, 306, 474,
479, 492
managing change, 5038
manufacturing sector, 279
modernisation, 31015, 474, 479, 481,
483, 492, 495, 5039
partnership concept, 60, 314, 469, 474,
4956, 5035
production models, 276, 480
quality in work, 310, 469, 491509
service sector, 276, 279, 3289, 47980
third way, 31011, 473
work-life balance, 493
work patterns, 276, 312
see also employment policy, labour
market, social partners, working time
worker, definition of, 1205
workers participation, see employee
involvement
working conditions:
aim of improving, 25, 27, 154, 169,
186200, 237, 343, 493
anti-discrimination directives, 401
atypical work, 823
Charter of Fundamental Rights, 496,
521, 526, 532
co-determination, 527
equal treatment, 53
harmonisation, 8, 239, 242
market functioning, 1868
neutralising, 13
sexual harassment, 204
Social Charter, 1368, 343, 496
temporary work, 496, 532
working environment, see health and
safety
working time:
adaptability of work to the worker, 170,
181, 412
Charter of Fundamental Rights, 527,
5402
collective agreements, 170, 172, 181, 504
compensatory rest, 172
Council Recommendation, 58
Directive, 16881
derogations, 169, 1714, 17881, 273
excluded sectors and activities, 169,
171, 1735, 17981, 527
implementation report, 173, 179
individual opt-out, 1723, 180, 185,
528
revision, 1689, 1746, 1801
scope, 123, 17181, 5402
White Paper on excluded sectors and
activities, 171, 1734
doctors in training, 171, 1756
employment strategy, 181

593

flexible working time, see work

organisation
gender gap, 268
health and safety objective, 16881
humanisation of work, 170, 31112, 494
maximum weekly working time, 27, 58,
16977, 17980, 5278
minimum requirements, 169, 17981
mobile and non-mobile workers, 1756,
541
monotonous and/or pre-determined work,
170, 312
night work, 97, 16972, 1745, 180
paid leave, 4, 6, 16, 27, 58, 16972,
17480, 212, 245, 527, 5402
quality objective, 493
record keeping, 172
reference periods, 16972, 337
rest (daily, weekly, annual), 16972,
1745, 527
rest breaks, 16972, 175, 180, 312
sectoral agreements, 174, 527
shift work, 169
small and medium-sized enterprises,
1789, 2401
Social Charter, 1389
subsidiarity, 2335
working time, definition of, 1767,
1801, 337
see also work organisation
works councils, see employee involvement,
European Works Councils Directive
xenophobia, see racism and xenophobia
young people:
adolescents, 137, 142, 148, 181, 1845
Charter of Fundamental Rights, 524, 526
child labour, 113, 117, 122, 137, 142,
1489, 1816, 526
economic exploitation, protection, 182,
186
equitable remuneration, 149, 186
force majeure, 184
illegal work, 185
ILO report, 186
night work prohibition, 181, 1846
rest periods and breaks, 182
risk assessments, 182
Social Charter, 129, 1489, 181
specific risk groups, 1812, 186, 212
working time, 1826
Young Workers Directive, 1816
derogations, 1836
origins, 98, 155
transitional period, 1846
Yugoslavia, 217