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The Charter, the protocol and the Economic Crisis

The Charter, the protocol and the Economic Crisis. Catherine Barnard Trinity College Cambridge. I. Outline of the content of the Charter. Charter. Charter solemnly proclaimed in Dec 2000 Sources ECHR Community Social Charter 1989 Council of Europe’s Social Charter 1961

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The Charter, the protocol and the Economic Crisis

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  1. The Charter, the protocol and the Economic Crisis Catherine Barnard Trinity College Cambridge

  2. I. Outline of the content of the Charter

  3. Charter • Charter solemnly proclaimed in Dec 2000 • Sources • ECHR • Community Social Charter 1989 • Council of Europe’s Social Charter 1961 • Constitutional traditions of MS, as general principles of Union law

  4. Content • Dignity • Freedoms • Equality • Solidarity • Citizens' rights • Justice

  5. Content (cont’d) • Civil/political rights on same footing as economic/social rights • Civil/political rights • Classic fundamental rights eg prohibition of slavery and forced labour; freedom of assembly and association • essentially negative • Economic/social rights • Equality title • Solidarity title eg right to info and consult, right to collective bargaining • Essentially positive; need state resources

  6. Content (cont’d) • Caveats • ‘Every worker has the right to protection against unjustified dismissal, in accordance with Union law and national laws and practices • See also Art. 52(6) • Rights and principles dichotomy • Principles: Art 25 (‘rights of the elderly’) and Art 26 (‘Integration of persons with disabilities) • Rights and principles:Art. 34 ‘The Union recognises and respects the entitlement to social security benefits’ • Are principles directly effective? No • Art. 52(5) (UK behind this change): principles can be implemented by legislative and executive acts of the Union and MS when implementing Union law. Such provisions are judicially cognisable only in the interpretation of such acts and in ruling on their legality

  7. Lisbon Treaty • 2007 amendments to the horizontal provisions, esp Arts 52(4) - (7), during CT negotiations • Constitutional Treaty incorporated Charter in Part II • Lisbon Treaty incorporated Charter by reference • Art. 6(1) TEU: Union recognises the rights, freedoms and principles set out in the Charter … which shall have the same legal value as the Treaties • Art. 6(2) TEU gives the Union the power (‘shall’) to accede to the ECHR • Art. 6(3) TEU fundamental principles are general principles of the Union’s law • UK/Poland ‘opt-out’: Protocol 30

  8. The ‘Opt-out’

  9. UK’s view on the Charter • News of the World: ‘EU chiefs have agreed to give Britain an opt-out on the Charter ... which could bring in new laws which would destroy jobs’ • DWP: ‘The UK Protocol does not constitute an opt-out. It puts beyond doubt the legal position that nothing in the Charter creates any new rights, or extends the ability of any court to strike down UK law’

  10. Saeedi • Cranston J: ‘The Charter could not be directly relied on as against the UK’ by virtue of Protocol 30 • [2010] EWCA Civ 990: ‘On appeal to the CA, the Secretary of State has accepted that “the fundamental rights set out in the Charter can be relied on as against the UK and ... that [Cranston J] erred in holding otherwise”, because the Charter simply restates rights that already formed part of EU law, and does not create any new rights’ .

  11. Art. 1(1): compatibility The Charter does not extend the ability of the [CJEU], or any court or tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms

  12. Art. 1(2) no justiciable rights in Title IV (Solidarity) • In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the UK except in so far as Poland or the UK has provided for such rights in its national law. • rights v principles dichotomy

  13. Article 1(2) opt-out? • belt and braces job • genuine opt-out? • Polish declaration no. 62 on the Protocol • Poland declares that, having regard to the tradition of social movement of ‘Solidarity’ and its significant contribution to the struggle for social and labour rights, it fully respects social and labour rights, as established by European Union law, and in particular those reaffirmed in Title IV of the Charter of Fundamental Rights of the European Union.

  14. Article 1(2) and general principles of law • Even if Art. 1(2) is an opt-out, general principles of law will still apply • Art. 6(3) TEU: fundamental rights are general principles of law • Viking: right to strike is a general principle of law • Preamble to Charter: • REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally

  15. But.... Case C-438/05 Viking Line • ‘the right to take collective action, including the right to strike, must therefore be recognised as a fundamental right which forms an integral part of the general principles of [Union] law the observance of which the Court ensures.’ • Reference to Art.28 Charter

  16. Broader scope of GPs: Case C-555/07 Kücükdeveci • It is ‘for the national court, hearing a dispute involving the principle of non-discrimination on grounds of age as given expression in Directive 2000/78 to provide, within the limits of its jurisdiction, the legal protection which individuals derive from European Union law and to ensure the full effectiveness of that law, disapplying if need be any provision of national legislation contrary to that principle’ (para. 51) • Horizontal application so long as matter falls within scope of EU law (cf Article 153(5) TFEU)

  17. Application and effect of the Charter

  18. To whom/what does Charter apply? • Article 51(1) first sentence • (primarily) (1) to the institutions, bodies, offices and agencies of the Union; and • (2) to the Member States but only when they are implementing Union law

  19. Legal effect of Charter post Lisbon • Art. 6(1) TEU first mentioned: Case C-555/07Kücükdeveci v Swedex It should also be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights … is to have the same legal value as the Treaties. Under Article 21(1) of the Charter ‘any discrimination based on .. age … shall be prohibited’ • Now a tsunami of cases on all aspects of the Charter

  20. Impact on EU law • Direct impact • Striking down legislative acts of EU institutions • Case C-92/09 Volker and Schecke • Case C-236/09 Test-Achats • Pre-screening of the legislation • Charter as the starting point for legal analysis • Case C-400/10 McB • Joined Cases C-71/11 and 99/11 Y and Z • Requiring MS to act in compliance with EU law • Joined Cases C-411/10 and C-493/10 NS

  21. Impact on EU law (cont’d) • Indirect impact • Steer the interpretation of secondary legislation • Case C-386/10P Chalkor • And going forward: Case C-38/05 Viking • Shadow effect of the Charter • Case C-34/09 Ruiz-Zambrano

  22. The silence of the Charter • Reforms mandated by the troika • Case C-128/12 Sindicatos dos Bancarios • Rejected by Order of 7 March 2013: Renvoi préjudiciel – Article 53, paragraphe 2, du règlement de procédure – Charte des droits fondamentaux de l’Union européenne –Réglementation nationale établissant des réductions salariales pour certains travailleurs du secteur public – Absence de mise en œuvre du droit de l’Union – Incompétence manifeste de la Cour • Case C-434/11 Corpul National al Politistilor • But what about the Cypriot bailout conditions?

  23. Case C-370/12 Pringle • The conclusion of the ESM does not infringe the principle of effective judicial protection under Art 47 CFREU because ‘the Member States are not implementing Union law, within the meaning of Article 51(1) of the Charter, when they establish a stability mechanism such as the ESM where the [TEU and TFEU] do not confer any specific competence on the Union’ to do so [179] • But is the CFREU relevant when the Commission and the ECB act with regard to the provisions of the ESM?

  24. External challenges • European Committee on Social Rights • General Federation of employees of the national electric power corporation (GENOP-DEI) / Confederation of Greek Civil Servants Trade Unions (ADEDY) v. Greece, Collective Complaint No. 65/2011  • Notice: The Committee considers that while it may be reasonable for the economic crisis to prompt changes in current legislation and practices to restrict certain items of public spending or relieve constraints on businesses, these changes should not excessively destabilise the situation of those who enjoy the rights enshrined in the Charter. • The Committee considers that a greater employment flexibility in order to combat unemployment and encourage employers to take on staff, should not result in depriving broad categories of employees, particularly those who have not had a stable job for long, of their fundamental rights in the field of labour law, protecting them from arbitrary decisions by their employers or from economic fluctuations. The establishment and maintenance of such rights in the two fields cited above is indeed one of the aims of the Charter. In addition, doing away with such guarantees would not only force employees to shoulder an excessively large share of the consequences of the crisis but also accept pro-cyclical effects liable to make the crisis worse and to increase the burden on welfare systems, particularly social assistance, unless it was decided at the same time to stop fulfilling the obligations of the Charter in the area of social protection. • Adopted by Resolution CM/ResChS(2013)2 on 5 Feb 2013General Federation of employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) against Greece, Complaint No. 65/2011

  25. 5 more pending cases from Greece

  26. And so it continues • Case 85/12 LO v Sweden The complaint was registered on 27 June 2012. The complainant trade unions allege that following the ECJ judgment in the Laval case (C-341/05), subsequent amendments to Swedish legislation have restricted the rights to freedom of association and collective bargaining, in violation of Articles 5 (the right to organise), 6 (the right to bargain collectively) and 21 (the right to information and consultation) of the European Social Charter (Revised).

  27. So how might the Charter apply? • Balancing conflicting interests • Eg right to engage in work (Art. 15) v right to protection against unjustified dismissal (Art. 30) • Margin of appreciation • Intergenerational fairness • Procedural approach

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