The tipping point for the European model

OPINION□ EUROPEANCOURTOF JUSTICE The tipping point for the European model I has existing unprecedented legislation European Court re-interpreted The of European European Justice history inway in CourtofJustice has re-interpreted existingEuropean legislationinway unprecedentedin European history DRSAMHÄGGLUND, General Secretary, European Federation of Building and Woodworking Trade Unions, Brussels Can would point December for argue theEuropean that 2007, the be neoliberal considered SocialModel? tendencies a tipping Many pointfortheEuropeanSocialModel?Many wouldarguethattheneoliberal tendencies within theEU sincetheend ofthe1990s,have withthejudgements ofViking, Laval,Ruffert and Luxembourg reachedthispoint.The European Court of Justicehas re-interpreted existing Europeanlegislation insucha dramatic waythat itiswithout precedence inthehistory oftheEU. These judgements, in my view, violatetwo basic principles thatcharacterise the EU as a democratic institution, and are fundamental in constituting theEuropeanSocialModel:theprincipleofsubsidiarity andtheprinciple ofdomain. The principle of subsidiarity in EU language, hasmeant that theEUlevelshoulddealwithonly those matters thatare not more appropriately dealtwithbythenational level.Another wayof expressing thisis to saythattheEU shouldnot 'destroy' thenationalsocial models,butmerely enforcesocial minimum conditions and secure principleslike non-discrimination and basic rights. The subsidiarity principle has also meant thatsomepolicyareasare notconsidered to be partof EU jurisdiction, some of theseexplicitly mentioned intheTreaties. Inwhatwayshavethejudgements violated the subsidiarity principle? WiththeLavaljudgement, thisis obviousforseveralreasons.TheEuropean CourtofJustice has notonlylimited itself to the questionsasked by the SwedishLabourCourt, but struck down on thewhole Swedishmodel based on collective agreements. Firstly, theCourtcriticised thefactthatwage levels for foreign contractorsoperating in Swedenare notone hundredper centforeseeable , while the AdvocateGeneralin the same Case said in hisOpinion,thatitis 'inherent in a systembased upon negotiations, thatthe outcome cannotbe whollypredictable'. Whilethe Commission inother circumstances is advocating a socialmodelbased on theconceptof'flexicurity ', theCourtin theLavalCase came forward with a 'planned economy' demand of fixed wages. Secondly, theCourtcriticised Swedenfornot havingintroduced minimum wagesinlegislation or in collective agreements. Thisin spiteofthe factthatthePostedWorkers Directive does not compela MemberStateto introduce minimum wages.Thisis clearfrom boththeDirective itself andfrom theStatement bytheEuropeanCouncil ofMinisters endorsed atthetimeoftheadoption oftheDirective. Thirdly, and in a Europeanperspective, the Court has restricted theright to strike orboycott fortradeunions.Sincethelistofminimum conditionsin the Directivenow stipulated by the Courthas been elevatedintobeingan 'exhaustive 'list,itmeansthateverything goingbeyond thislist,cannotbe enforced via tradeunioncollective action. TheCourt says,admittedly, that the right to strike is a fundamental right, butin the samejudgement, thatcollective action1) cannot be exercised - forpostedworkers - beyondthe 'nucleus'of theDirective; 2) mustbe balanced against 'publicinterest', and3) must be balanced against employers'interest.All in all, this amountsto a totaldisempowerment of trade unionaction. These violationsof the subsidiarity principle are made,despitethefactthatlegislative statementsguaranteeing these rights are abundant. Concerning, the Laval Case, thereis an attachmentto theSwedishaccessionagreement to the EU in 1995,sayingthatSweden,by joiningthe EU, shouldnotbe forcedto changethefundamentals oftheSwedishsocialmodelthat isbased on negotiations and collective agreements. Two paragraphs of thePostedWorkers Directive are included directly as a consequenceofthenegotiations withSwedenatthetime oftheadoption of the Directive. First, Recital22 in the Preamble saysthat theDirective iswithout prejudice tothe right totakecollective actionto defend workers' interests. Second,Article 3.8 saysthatifa conditionis notlaid down in legislation or generally applicablecollective agreements, thenitcouldbe based upon nation-wide collectiveagreements, concludedby themostrepresentative organisations , as is normally thecase inSweden. Violations ofthesubsidiarity principle arealso obvious in the Ruffert and the Luxembourg judgements. In Germany, the greatinfluxof migrant and postedworkers in theconstruction sector,workingin a 'shadow economy',has undermined tradeunioninfluence overworking conditionsin the sector.One of the ways to enforce theapplication ofcollective agreements has been,in someLänder, to pass laws stipulatingthat contractors on publicprojects must abide bycollective agreements. Now,theRuffert judgement prohibits thispractice whenpostedworkers are involved,since the conditions in the Land collectiveagreements go beyondthe minimum conditions applicablein thewholeofGermany, and thus beyond the 'nucleus'of the Posted Workers Directive. Andin theLuxembourg judgement, theviolationof thesubsidiarity principle consistsin the factthattheStateofLuxembourg is notentitled, bythedecisionoftheCourt, to laydownsocial conditions in their legislation goingbeyondthe 'nucleus'of thePostedWorkers Directive, even though theseconditions applyequallytodomesticcontractors as toforeign ones. Thesecondgeneral principle that hasbeenviolatedby theECJjudgements, is theprinciple of INTERNATIONAL union rights Pa9e 22 Volume 16Issue 12009 domain. WhenMontesquieu inDe l'Esprit de Lois underlined theimportance ofseparating thethree administrative powers,thelegislative, theexecutive ,and thejudicialpowers,thiswas a revolutionary thought, erasingthelastvestigeof feudalism . Eversince,theseparation ofpowershas been considered to be one of thefundamental principlescharacterising a democracy.If the boundaries betweentheseare blurred, itmeans thatpolitical accountability forlegislative action cannot be properly enforced. Inwhatway,then, canwe claimthat theCourt, inthesejudgements, haveviolatedtheprinciple ofdomain? Every case putinfront ofa Court has unique characteristics, and these taken into accountcan sometimes giveriseto 'unorthodox' interpretations of existing legislation. Butwhen we lookatespecially thethree judgements dealingwiththeinterpretation ofthePostedWorkers Directive, a...

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