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Stefan Clauwaert, Isabelle Schömann, The protection of fundamental social rights in times of crisis: A trade union battlefield in:

Wolfgang Däubler, Reingard Zimmer (Ed.)

Arbeitsvölkerrecht, page 239 - 257

Festschrift für Klaus Lörcher

1. Edition 2013, ISBN print: 978-3-8487-0674-7, ISBN online: 978-3-8452-4921-6, https://doi.org/10.5771/9783845249216-239

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The protection of fundamental social rights in times of crisis: A trade union battlefield Stefan Clauwaert and Isabelle Schömann Introduction Since the start of the economic crisis, fundamental workers and trade union rights have come under severe attack in many member states in particular due to the austerity measures implemented in the belief the crisis can be solved by making the labour market and employment relations more flexible. It is clear, however that in this way fundamental rights obligation that these member states have assumed under international, Council of Europe and EU law are being violated. Whereas the trade unions fight their battles to protect these rights in the first instance – and logically – at a national level, they seem to have (re)discovered new potential battlefields by addressing complaints and using supervisory procedures and bodies within the framework of the ILO, the Council of Europe and the European Union. Recently, certain of these bodies have expressed themselves in – for the trade unions – a positive way on violations of fundamental rights obligations committed by certain member states. Finally, fundamental social rights protection is now being raised as a counter voice to the omnipresent ‘Troika-speak’ in favour of deregulation and flexibilisation. This contribution will highlight these potential positive avenues, on the basis of some recent cases brought in particular by trade unions before the Council of Europe, as well as the role of EU law and, in particular, the EU Charter of Fundamental Rights. In that sense, it fits in very well with all the efforts Klaus Lörcher has made throughout his career to protect fundamental social rights by using separately or in combination every international and european instruments available, thus building the pathway to a coordinated trade union litigation strategy.1 I. 1 The authors would like to warmly thank Klaus Lörcher for his tireless and much appreciated efforts to support the European trade union movement in particular as trade union lawyer, always thinking in an international and european way, throughout his career as national legal expert for DPG (Deutsche Post Gewerkschaft) but also as ETUC representative in the Governmental Committee to the Social Charters Council of Europe, ETUC Legal Advisor, ETUC Human Rights Advisor (in particular responsible for the follow up of the EU accession to the ECHR) and as ETUI coordinator and member of the Transnational Trade Union Rights Experts Network. The Council of Europe and the impact of the crisis on fundamental social rights ‘The primary aim of the Council of Europe is to create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law. These values are the foundations of a tolerant and civilised society and indispensable for European stability, economic growth and social cohesion.‘2 Currently (March 2013), the Council of Europe counts 47 member countries thereby covering virtually the entire European continent, while the European Union is in the process of acceding to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Council of Europe’s leading treaty.3 The Council of Europe as instrument for the promotion of fundamental social rights On the basis of these fundamental values and manifold instruments, the Council of Europe and its member countries try to find ‘shared solutions to major problems such as terrorism, organised crime and corruption, …, violence against children and women, and trafficking in human beings.’ It seems that in particular the social impact of the crisis now also represents such a major problem to which the Council of Europe is trying to find a solution or at least to ensure that the fundamental values and rights it stands for are not undermined but remain protected.4 Although indeed the European Convention of Human Rights (ECHR) is the leading instrument of the Council of Europe (and forms not only the main basis for the EU Charter on Fundamental Rights but has also been referred to in the main body of the EU Treaties for years – see section 2), its main enforcement body, the European Court of Human Rights (ECtHR), has so far not had the opportunity to express itself on individual cases related to austerity measures taken in signatory countries and their eventual compliance with the fundamental rights enshrined in II. 1. 2 See Council of Europe website: http://www.coe.int/aboutCoe/index.asp?page=nosObjectifs& l=en. 3 At the time of writing, the Council of Europe had however adopted a total of 212 so-called treaties; an overview is available at: http://www.conventions.coe.int/Treaty/Commun/ListeT raites.asp?CM=8&CL=ENG. 4 See amongt others various documents adopted by the Parliamentary Assembly (PACE) on Assembly on The social impact of the economic crisis (Resolution 1717 of 27/04/2010), Women and the economic and financial crisis (Resolution 1719 and Recommendation 1911 of 28/04/2010); The young generation sacrificed: social, economic and political implications of the financial crisis (Resolution 1885 and Recommendation 2002 of 26/06/2012). All documents at: http://assembly.coe.int/ASP/Doc/XrefATListing_E.asp. See also at the end of this chapter. 240 Stefan Clauwaert/Isabelle Schömann the ECHR. The latter will surely change in the near future as in 2011 around 8,000 individual applications were made by Hungarian citizens contesting the compatibility of pension reforms pushed through by the Hungarian government with the ECHR. The main basis used for contesting the anti-social impact of austerity measures taken in certain member countries, however, has been the European Social Charter(s) (both the initial 1961 and revised 1996 version). These European Social Charters, which are often described as the little ‚sister or brother’ to the ECHR as they exclusively deal with fundamental social rights and principles, have been ratified by all EU member states, all EU candidate countries and some of EEA countries.5 The main supervisory and enforcement body with regard to the Social Charters is the European Committee of Social Rights (ECSR), composed of 15 independent, impartial experts, elected by the Council of Europe’s Committee of Ministers for a six-year term of office, renewable once.6 Its main mission is to judge whether signatory countries are in conformity in both law and in practice with the provisions of the European Social Charters. To this end, two main supervisory mechanisms exist with, on one hand, a – traditional – national reporting system and, on the other hand, the so-called collective complaint procedure. As for the reporting system, and following a decision taken by the Committee of Ministers in 2006, the provisions of both the 1961 Charter and the Revised Charter have been divided into four thematic groups. Signatory countries present a report on the provisions related to one of the four thematic groups on an annual basis. Consequently, each provision of the Charter is reported on once every four years. This latter system largely explains why the ECSR has so far not really been able to express itself on austerity measures taken by member countries. Such an analysis of possible violations is certainly due in the near future as, according to the reporting system, the ECSR has to express itself on measures taken within the reference period 1 January 2007 - 31 December 2010 by the governments within thematic group 1 ‚Employment, training and equal opportunities‘ by December 2012, measures taken in the reference period 1 January 2008 - 31 December 2011 within thematic group 2 on ‚Health, social security and social protection‘ (conclusions of ECSR expected by December 2013) and certainly on measures taken within the reference period 1 January 2009 - 31 December 2012 within thematic group 3 on ‚Labour rights‘, including rights to fair remuneration (art 4.) and all trade union 5 In fact, all countries in these three categories have ratified the Revised Social Charter with the exception of Croatia, Czech Republic, Denmark, Germany, Greece, Iceland, Latvia, Luxembourg, Poland, Spain and the United Kingdom which ratified fully or partially the 1961 Social Charter. EEA country Liechtenstein has only signed the revised charter but not yet ratified it (status March 2013). 6 And of which several old and current members also contribute to this Liber Amicorum. The protection of fundamental social rights in times of crisis 241 and workers‘ representation rights (Art. 5, 6, 21, 22, 28 and 29, ECSR conclusions expected by December 2014). It is important to note that if a state takes no action on an ECSR decision to the effect that it does not comply with the Charter, the Committee of Ministers may address a recommendation to that state, asking it to change the situation in law or in practice. The Committee of Ministers’ work is prepared by a Governmental Committee comprising representatives of the governments of the States Parties to the Charter, assisted by observers representing European employers’ organisations (for the moment Businesseurope, formerly UNICE), and the International Organisation of Employers (IOE) and trade unions (ETUC).7 The main critical analysis to date by the ECSR of the compliance of member states’ austerity measures with their obligations under the European Social Charters has come via the so-called ‘collective complaints’ procedure. Under this system, introduced under the Additional Protocol of 1995 providing for a system of collective complaints8 and which came into force in 1998, national trade unions and employers' organisations as well as certain European trade unions and employers' organisations (ETUC, Businesseurope and IOE), and certain international NGOs are entitled to lodge complaints of violations of the Charter with the Committee.9 In addition, national NGOs may lodge complaints if the state concerned makes a declaration to this effect.10 Besides lodging complaints itself (in conjunction or not with national affiliates to ETUC) ,11 ETUC has the right to file so-called observations in relation to any other collective complaint irrespective of which organisation and against which member country the complaint was lodged.12 7 In this Governmental Committee, Klaus Lörcher has been a longstanding, devoted and very respected - by both the Social Charters’ Secretariat and representatives of governments -, representative of the ETUC together with colleagues such as the late Gérard Fonteneau and Stefan Clauwaert. 8 Available at: http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=158&C M=8&CL=ENG. 9 It should be noted that that Klaus Lörcher also represented the ETUC in the working group that discussed and drafted the rules and procedures to this collective complaints procedure and was amongt other things, thereby able to ensure a significant and important role for both national trade unions and the ETUC in this procedure. For more information on this collective complaints procedure and the complaints lodged see: http://www.coe.int/t/dghl/monitoring/ socialcharter/Complaints/Complaints_en.asp. 10 At the time of writing (March 2013), only Finland has provided for this possibility. 11 The ETUC at the time of writing had lodged only two joint complaints with its affiliates in relation to the right to collective bargaining and collective action in Bulgaria (collective complaint No. 32/2005) and in relation to the right to collective action in Belgium (collective complaint No. 59/2009). For more information and all documents related to these (and other) complaints, see: http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints _en.asp. 12 ETUC has used this opportunity on several occasions; see amongt others, the collective complaints No. 1-6/1999, No. 11/2000, No. 35/2006. 242 Stefan Clauwaert/Isabelle Schömann The Council of Europe facing austerity measures In February 2011, the first two ‚austerity‘-related collective complaints were lodged by the General Federation of employees of the national electric power corporation (GENOP-DEI) and the Confederation of Greek Civil Servants’ Trade Unions (ADEDY) versus Greece (No. 65/2011 and No. 66/2011). Both collective complaints were declared admissible by the ECSR on 30 June 2011. In complaint 65/2011, the complainant trade unions allege that the measures relating to remuneration and working conditions contained in Act No. 3899/2010 of 17 December 2010 are in violation of Article 4 (right to a fair remuneration) of the European Social Charter and Article 3 of the Additional Protocol of 1988 (right to take part in the determination and improvement of the working conditions and working environment), whereas for complaint 66/2011 they allege that measures of that same law are in violation of Articles 1 (right to work), 4 (right to a fair remuneration), 7 (the right of children and young persons to protection), 10 (right to vocational training) and 12 (right to social security) of the European Social Charter. In particular, Complaint 65/2011 alleges that: • making it possible to dismiss a person without notice or severance pay during the probation period in an open-ended contract is in breach of Article 4 § 4 of the 1961 Charter • the derogation by means of a collective agreement concluded at enterprise level from the provisions set out in a collective agreement concluded at sectoral level leads to a deterioration in working conditions for the employees concerned, in breach of Article 3 § 1a of the 1988 Additional Protocol to the 1961 Charter; in a situation where there is no trade union in the enterprise, the provisions contained in the above-mentioned act which enables for the collective agreement at enterprise level to be concluded by trade unions of a different level (corresponding to sectoral trade union or federation), are in breach of Article 3 § 1a of the 1988 Additional Protocol to the 1961 Charter. Complaint 66/2011 alleges that: • introducing‚ special apprenticeship contracts’ between employers and individuals aged 15 to 18 with lesser labour law and social security rights violates Articles 1 § 1, 7 § 2, 7 § 7, 7 § 9, 10 § 2 and 12 § 2 of the 1961 Charter; • measures concerning the employment of new entrants to the labour market aged under 25 providing them with a remuneration below the minimum wage violates Article 4 § 1, taken in conjunction with Article 1 § 2 of the 1961 Charter. 2. The protection of fundamental social rights in times of crisis 243 In relation to Collective Complaint 65/2011, the ECSR concluded on 18 June 2012: • (unanimously) that there is a violation of article 4 regarding the possibility for dismissal without notice or compensation during the probation period in an open-ended contract; • (by 14 votes to 1) that there is no violation of Article 3 § 1 of the Additional Protocol as it does not concern the right to collective bargaining; this right is covered by Articles 5 and 6 of the Charter but cannot be examined as these articles are not ratified by Greece. However, in a dissenting opinion Petros Stangos (Greek member of the ECSR) stated that, based on his reading of Article 3 § 1 against the real aim of the legal measure – that is the purpose of serving first and foremost to reduce the proportion of the cost of labour in firms‘ costs with the ultimate aim of increasing their competitiveness –, allowing an employer to conclude an enterprise-level collective agreement with a trade union at a higher level behooves the workers of the enterprise, or their representatives, to participate in determining and improving working conditions in the enterprise and can lead to situations whereby the pecuniary and nonpecuniary interests of the workers of that enterprise are flouted or overridden by other considerations. In its argumentation in reaching this conclusion of a violation, the ECSR: ‚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.‘ The Committee of Ministers in its Resolution (2013) confirmed the violations and called upon the Greek government to revoke the above-mentioned measures as soon as possible and keep the Committee of Ministers regularly informed of all progress made. In an appendix to the resolution it refers to an answer by Greece to the conclusions of the ECSR in which it states that it ‚accepted the conclusions of the ECSR concerning the issues of non-conformity with the European Social Charter. Secondly, it pointed out that the measures were of a provisional nature. Thirdly, it stated that the Greek Government had the firm intention to 244 Stefan Clauwaert/Isabelle Schömann revoke these measures as soon as the economic situation of his country would allow. However, in this respect, and with regard to the political and economic constraints, it was not possible to envisage a set timeframe, although it was unlikely that tangible results in Greece would be apparent before 2015. (…)‘13 In relation to Collective Complaint 66/2011, the ECSR also decided unanimously on 18 June 2012 that: • There is a violation of Art. 7 § 7 as these young workers are not entitled to three weeks’ annual holiday with pay. • There is also a violation of Art. 10 § 2 as there exists in Greece no coherent framework of rules on apprenticeships as the applicable legislation only lays down the length of the apprenticeship (1 year) and matters of remuneration (70 per cent of minimum wage or daily wage); • There is a violation of Art. 12 § 3 (to progressively raise the system of social security to a higher level) as the measures introduced do not maintain a sufficiently extensive system of compulsory social security and do not refrain from excluding entire categories of social protection offered by the system; the special apprenticeship contracts even establish a distinct category of workers who are effectively excluded from the general range of protection offered and this represents even a deterioration of the social security scheme. • There is a violation of Art. 4 § 1 (fair remuneration) in conjunction with Art. 1 § 2 because due to the reductions in the minimum wage, the minimum wage paid to workers below 25 years of age falls below the poverty level. However, the ECSR considers –again unanimously– that there is no violation in regard to: • Article 1 § 1, relating to the achievement and maintenance of a high and stable level of employment as possible, with a view to the attainment of full employment. The ECSR considers that Article 1 § 1 is not concerned – as the complainants assert – with the protection afforded by labour and/or social security law and as a result, the arguments adduced by the complainants to the effect that the ‘special apprenticeship contracts’ at issue in this complaint do not provide adequate job security or adequate social protection, are not relevant to the question of whether the situation in Greece is in conformity with Article 1 § 1 of the 1961 Charter; 13 Resolution CM/ResChS(2013)2 General 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, adopted by the Committee of Ministers on 5 February 2013 at the 1161st meeting of the Ministers' Deputies; available at: https://w cd.coe.int/ViewDoc.jsp?id=2029575&Site=CM&BackColorInternet=C3C3C3&BackColo rIntranet=EDB021&BackColorLogged=F5D383. The protection of fundamental social rights in times of crisis 245 • Article 7 § 2 and 9 as the situation in Greece satisfies the requirements of age limit in respect of dangerous or unhealthy occupations provided for by Article 7 § 2 as well as the requirements regarding regular medical control provided for by Article 7 § 9 of the 1961 Charter. As to its argumentation in favour of the violations, the ECSR considers that‚ with respect to the context of economic crisis which forms the background to this complaint, the Committee has commented, in the general introduction to Conclusions XIX-2 (2009) on the repercussions of the economic crisis on social rights, that while the ‘increasing level of unemployment is presenting a challenge to social security and social assistance systems as the number of beneficiaries increase while tax and social security contribution revenues decline’, by acceding to the 1961 Charter, the Parties ‘have accepted to pursue by all appropriate means the attainment of conditions in which inter alia the right to health, the right to social security, the right to social and medical assistance and the right to benefit from social welfare services may be effectively realised.’ Accordingly, it concluded that ‘the economic crisis should not have as a consequence the reduction of the protection of the rights recognised by the Charter. Hence, governments are bound to take all necessary steps to ensure that the rights of the Charter are effectively guaranteed at a period of time when beneficiaries most need the protection‘. The Committee considers that what applies to the right to health and social protection should apply equally to labour law. While it may be reasonable for state parties to respond to the crisis by changing current legislation and practice to limit public expenditure or relieve constraints on business activity, such measures should not excessively destabilise the situation of those who enjoy the rights enshrined in the Charter. In particular, the Committee considers that measures taken to encourage greater employment flexibility with a view to combating unemployment should not deprive broad categories of employees of their fundamental rights in the field of labour law, which protect them against arbitrary decisions by their employers or the worst effects of economic fluctuations. The establishment and maintenance of these basic rights is a core objective of the Charter.‘ Again the Committee of Ministers confirmed the findings of the ECSR in its Resolution (2013) and calls for Greece to revoke the above-mentioned measures as soon as possible and keep the Committee of Ministers regularly informed of all 246 Stefan Clauwaert/Isabelle Schömann progress made. The Greek government provided the same answer to the Committee of Ministers as in Resolution (2013, see above).14 In 2012, five more collective complaints were launched against Greece by Greek trade unions this time in relation to pension reforms undertaken by the Greek government.15 They were all found admissible by the ECSR on 23 May 2012. Unlike for the other complaints, this time the ETUC did file observations in support of Greek colleagues (ETUC, 2012).16 At the time of writing the ECSR had not yet taken a decision on the merits. Noteworthy in this context and showing the interest in and concern of the Council of Europe with the social impact of the crisis, is that its Parliamentary Assembly (PACE)17 adopted in June 2012 a Resolution on ‘Austerity measures – a danger for democracy and social rights’18, in which the PACE ‚recommends a profound reorientation of current austerity programmes, ending their quasi-exclusive focus on expenditure cuts in social areas such as pensions, health services or family benefits’ and ‘instead of the austerity approach, energetic measures in favour of economic recovery should be taken, based on the creation of new quality employment opportunities, equal access to employment and support for young people in transition from education to professional careers.’ (paras 6 and 7). The PACE therefore calls on member States of the Council of Europe to, among other things, ‚sign and ratify the revised European Social Charter and the European Convention on Social Security (ETS No. 78), if this has not yet been done, and consider supporting an update of the latter in accordance with the needs of today’s work situ- 14 Resolution CM/ResChS(2013)3 General Federation of employees of the National Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) against Greece, Complaint No. 66/2011, adopted by the Committee of Ministers on 5 February 2013 at the 1161st meeting of the Ministers' Deputies; available at: https://w cd.coe.int/ViewDoc.jsp?id=2029587&Site=CM&BackColorInternet=C3C3C3&BackColo rIntranet=EDB021&BackColorLogged=F5D383. 15 No. 76/2012 Federation of employed pensioners of Greece (IKA –ETAM) v. Greece. No. 77/2012 Panhellenic Federation of Public Service Pensioners v. Greece, No. 78/2012 Pensioners’ Union of the Athens-Piraeus Electric Railways (I.S.A.P.) v. Greece, No. 79/2012 Panhellenic Federation of pensioners of the public electricity corporation (POS-DEI) v. Greece and No. 80/2012 Pensioner’s Union of the Agricultural Bank of Greece (ATE) v. Greece. All cases relate in particular for the public sector to the reduction of primary and auxiliary old age pensions and additions to pensions, the reduction of the additions to pensions known as Christmas, Easter and vacation bonuses, reductions in primary pensions Reduction in auxiliary pensions, the introduction of Pensioners' social solidarity contribution, the suspension or reduction of pensions for pensioners with an occupation, and the reduction of private sector pensioners’ social solidarity benefit (only for case 76). 16 These observations, prepared for ETUC by Klaus Lörcher and Stefan Clauwaert, are available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC80CaseDoc5_en.pdf. 17 For more information on the Parliamentary Assembly see: http://assembly.coe.int/defaultE. asp. 18 Parliamentary Assembly (2012) Resolution on ‘Austerity measures – a danger for democracy and social rights’, Resolution No. 1884, 12 June 2012, Strasbourg: Council of Europe (available at: http://assembly.coe.int/ASP/Doc/XrefATDetails_E.asp?FileID=18916). The protection of fundamental social rights in times of crisis 247 ations and lifestyles, so as to improve the rights of member States’ citizens to a level at least equal to the rights guaranteed by bilateral agreements on social security‘ (para. 10.3) and ‚closely assess current austerity programmes from the point of view of their short- and long-term impact on democratic decision-making processes and social rights standards, social security systems and social services, such as pension and health systems, family-oriented services or assistance services to the most vulnerable groups (people with disabilities, migrants, the unemployed, etc.)’. (para. 10.6). Also interesting is that the explanatory memorandum to the Resolution states that ‘the Parliamentary Assembly furthermore notes that “[T]he implementation of austerity measures is often linked to bodies whose character raises questions of democratic control and legitimisation, such as the so-called ‘troika’ of the International Monetary Fund, the European Commission and the European Central Bank, or newly composed, technocratic governments as set up in several member States recently. It notes also that ‘more recently, both the economic effectiveness of austerity measures and the root causes of the crisis are increasingly being questioned by international experts and organisations. The short- and long-term negative effects of the measures on democratic processes and social rights standards have also come in for criticism.‘ The same rapporteur as for Resolution 1884, German PACE member Mr. Hunko, is currently preparing a new report/resolution on the ‚Protection of the right to bargain collectively‘.19 The Charter of Fundamental Rights in time of crisis Since the entry into force of the Lisbon Treaty in December 2009, the corpus of fundamental rights of the Union’s legal order has been composed of three levels (Art. 6 TEU): the Charter of Fundamental Rights, the European Convention of Human Rights, as such after accession, and fundamental rights as general principles of law. Without doubt, the heart of this corpus is the Charter of Fundamental Rights (hereafter the Charter), whose provisions addressed to the institutions and bodies of the Union and to the Member States only when they are implementing Union law (Art. 51 (1) have gained, with its incorporation in the Lisbon Treaty, ‚the same legal value as the Treaties‘ (Article 6 TEU). III. 19 Report/Resolution on the ‚Protection of the right to bargain collectively‘ – Doc 13043 – 2 October 2012 – Rapporteur Mr. A. Hunko. 248 Stefan Clauwaert/Isabelle Schömann Charter of Fundamental Rights as paramount source of general principles of the EU law for the CJEU As a consequence, the CJEU has rapidly started to apply the Charter, abandoning its former reluctance to mention it in its judgements, even as a source of inspiration, as was the case in the years following the first proclamation of the Charter in 200020. Indeed, since the end of 2009, both the Court of Justice and the General Court have referred to the Charter in more than 60 decisions, in addition to the references in Opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal and of the Ombudsman21. Next to its already pretorian and dynamic jurisprudence in developing a ‘narrative’ on fundamental rights as a general principle of EU law since the early 1970s22, comprising common national constitutional traditions and international human rights agreements23, even as an unwritten’ general principle of EU law (O’Neill QC 2012) 24, the CJEU now measures the intent and effect of EU law against the background of an understanding of the terms of the Charter, as interpreted by the CJEU since Article 52 (3) of the Charter requires that: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention (…)’ .25 Although the Charter goes further than the ECHR in the area of some economic, social and cultural rights (for example the right to good administration, freedom to conduct a business, the rights of the 1. 20 Bercusson, B./Clauwaert, S./Schömann, I., (2006) Legal prospects and legal effects of the EU Charter, in: European labour law and the EU Charter of Fundamental Rights, Baden- Baden, 2006, p. 41-83. 21 http://curia.europa.eu/juris/documents.jsf?pro=&nat=&oqp=&lg=&dates=%2524type%25 3Dpro%2524mode%253DfromTo%2524from%253D2009.12.09%2524to%253D2013.03. 01&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E %252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse %252Cfalse&td=%3B%3BPUB4%2CPUB7%2CPUB1%3B%3B%3BORDALL&text=ch arter%2Bof%2Bfundamental%2Brights%2B&pcs=O&avg=&page=1&mat=or&jge=&for =&cid=546316. 22 Case 11/70 [1970] ECR 1125, Internationale Handelsgesellschaft ‘...respect for fundamental rights forms an integral part of the general principles of Community law‚. See Kollonay- Lehoczky, C./Lörcher, K./Schömann, I. 2012, The Lisbon Treaty and the Charter of Fundamental Rights of the European Union in Bruun, Lörcher and Schömann ( 2012), The Lisbon Treaty and Social Europe, 61-104, in particular p. 63. 23 In Nold v. Commission (Case 4/73 [1974] ECR 491). 24 Case C-114/04 Mangold [2005] ECR I-9981; Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG, [2010] ECR I-nyr on age discrimination as an unwritten general principle. 25 In Case C-400/10 PPU J McB v LE, 5 October, [2010] ECR I-nyr at para 53, the CJEU ruled that: ‘It is clear that the said Article 7 [of the EU Charter] contains rights corresponding to those guaranteed by Article 8 (1) of the ECHR. Article 7 of the Charter must therefore be given the same meaning and the same scope as Article 8 (1) of the ECHR, as interpreted by the case-law of the European Court of Human Rights’. The protection of fundamental social rights in times of crisis 249 elderly), Article 52 (3) of the Charter states clearly that ‘This provision shall not prevent Union law providing more extensive protection’, considering ECHR rights as the minimum that the Charter guarantees but may extend further. Unavoidably, such development of CJEU case law in parallel with the ECHR case law might progressively lead to ‘a single, converging legal system’ as the EU’s Agency for Fundamental Rights together with the European Court of Human Rights has already expressed it in the jointly produced Handbook on European non-discrimination law.26 The CJEU’s ever expanding Charter case law reveals that the Charter is used as a source of general principles of the EU against which the nature, extent and effect of provisions of primary and secondary EU law are evaluated. Such a development is of paramount importance, as it fuels the debate on whether the European Union is building an autonomous part of a legal supranational order placing fundamental rights at its heart, and consequently moving away from its market values genesis towards a more constitutional system, in which fundamental rights play a predominant role.27 In time of financial and economic crisis, such jurisprudential developments, together with the strong political signals given by the European Commission,28 as well as by the European Parliament,29 should secure the respect and the promotion of fundamental rights by the European institutions (bodies, offices and agencies), as the primary addressees of all obligations deriving from the Charter, as Article 51 (1) of the Charter stipulates, in particular when adopting anti-crisis measures; all the more when the European Commission, the European Parliament and the Council have confirmed their intention to effectively implement the EU Charter.30 26 http://fra.europa.eu/en/publication/2012/handbook-european-non-discrimination-law. 27 Frantziou. E. 2012. Developments in the case law of the CJEU (2010-2011): Human rights and the scope of the EU law. http://kslr.org.uk/blogs/europeanlaw/2012/05/30/development s-in-the-case-law-of-the-cjeu-2010-2011-human-rights-and-the-scope-of-eu-law/. 28 Bringing the Charter to life – opportunities and challenges of putting the EU Charter of Fundamental Rights into practice. FRA, Copenhagen Seminar Report of 15-16 March 2012. http://fra.europa.eu/sites/default/files/copenhagen-seminar-report.pdf; Reding, V. 2012. ’Observations on the EU Charter of Fundamental Rights and the future of the European Union’, XXV Congress of FIDE (Fédération Internationale pour le Droit Européen) Tallinn, 31 May 2012 http://europa.eu/rapid/press-release_SPEECH-12-403_en.htm. 29 European Parliament 2012 Report on the situation of fundamental rights in the European Union (2010-2011) (2011/2069INI) of 22 November 2012. 30 Communication from the Commission, ‘Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union‘ 19.10.2010 COM(2010) 573 final. European Parliament resolution of 15 December 2010 on the situation of fundamental rights in the European Union (2009) – effective implementation after the entry into force of the Treaty of Lisbon (2009/2161(INI). Council conclusions on the role of the Council of the European Union in ensuring the effective implementation of the Charter of Fundamental Rights of the European Union (3071st JUSTICE and HOME AFFAIRS Council meeting, 24 and 25 February 2011). 250 Stefan Clauwaert/Isabelle Schömann However, the factual growing dominance of fundamental rights in the interpretation and application of EU law by the CJEU does not seem to be reflected when it comes to apply fundamental rights requirements to the EU institutions when acting within the framework of anti-crisis measures. By drawing on national and european litigation cases in relation to crisis measures, it will be demonstrated to what extend the Charter has made a real difference or not and whether it has led to stronger protection of rights in concrete case law and legislative files. Interestingly, a dichotomy appears between on one hand, the ambitious case law of the CJEU promoting fundamental rights as the European Union’s part of the legal corpus and, on the other hand, denying the application of the Charter of fundamental rights when it comes to actions taken by European institutions within the framework of the so-called anti-crisis measures. Constitutional traditions of member states and the Charter of Fundamental Rights: a double protection against emergency actions and procedure in time of crisis? Protection of fundamental rights within the European Union is guaranteed both at national level by member states’ own constitutional systems and at European level by the Charter, by European legislation and by the case law of the CJEU. The Charter protects individuals and legal entities against actions by the European institutions and by national authorities when implementing EU law that are not in conformity with fundamental rights. If this happens, the CJEU has the competence to review the legality of the act on the basis of preliminary questions forwarded by national courts, acting as judges of EU law. Interestingly, the most recurrent types of preliminary questions identified so far deal with the interpretation of EU secondary law as compatible with a fundamental right and the compatibility of national action with EU fundamental rights. Another category has recently emerged, in correlation with the EU accession to the ECHR, on the validity of EU acts with regard to the Charter. In this vein, questions arise whether the Charter has been referred to within the framework of legal proceedings against anti-crisis measures. A series of national constitutional reviews have so far contested the unconstitutionality of the Treaty establishing the European Stability mechanism (TESM) in particular the recourse to the ratification procedure, referring to national constitutional rights and values 2. The protection of fundamental social rights in times of crisis 251 in the Netherlands31, Germany32, Greece33, Ireland34, Austria35 and Poland36 as well as Estonia (see below). As part of a larger set of regulatory reforms, in particular the Treaty on Stability, Coordination and Governance (the so-called Fiscal Compact),37 Regulation No. 407/2010 establishing the TESM38 has been adopted by the European Council in order to create a lending capacity to member states in difficulty, next to the European Financial stability Facility established by the Eurozone members. The legal framework of both measures has proven to be controversial, amongt other things due to the conditionality attached to them. As a response, the European Council amended Article 136 TFEU by decision 2011/199,39 using the simplified revision procedure of Article 48 (6) TEU for the first time since its introduction in the Treaty in December 2009, adding a new para. stating that ‘Member states whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole.’ Decision 2011/199/EU that entered into force on 1 January 2013, however, requires ratification by all Member States in accordance with their domestic constitutional traditions. Interestingly, the TESM entered into force end of September 2012 and commenced its operations in December 2012, although not all member states had ratified Decision 2011/199, and consequently the TFEU has not yet been amended. Furthermore, the choice of the simplified revision process to amend Article 136 TFEU to create a permanent financial support mechanism and the use of an international treaty with which to create that mechanism give a unpleasant feeling of misuse, as ‘It is one thing to need a legal basis in the EU treaties for the creation of an institution if that body is established under, and exercises powers through, EU legal instruments; it is another if that body acquires its legal powers and status under an international treaty from which its authority derives’.40 31 The Hague District Court of 1 June 2012 (Wilders e.a. v. State of the NL). 32 BVerfG Case No. 2 BvR1390/12 Sept. 2012, 2012 NJW 3145. 33 Greek Constitutional Court: (7 Nov 2012) (Areios Pagos). 34 Pringle v. Gov. of Ireland – Irish case- (CJEU C-370/12) directly addresses the compatibility of the EMS with the no bail out clause + legal validity of adopting crisis measures in the form of intergovernmental acts in the area of exclusive competences of EU (recourse to an accelerate procedure). 35 Case Strache vs. ESM case (G104/12-8). 36 Case No. K-33/12. Sejm. 11 February 2013.http://orka.sejm.gov.pl/stanowiskaTK.nsf/nazw a/Stanowisko_K_33_12/$file/Stanowisko_K_33_12.pdf. 37 Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, Mar. 2, 2012, http://european-council.europa.eu/media/639235/st00tscg26_en12.pdf. 38 Council Regulation 407/2010, (2010) O.J. (L 118) 1. 39 European Council Decision 2011/199/EU, 2011 (L 91) 1. 40 Armstrong, K.A (2012), Responding to the Economic Crisis: Public Law in a Post-Lisbon Age, http://eutopialaw.com/2012/02/21responding-to-the-economic-crisis-public-law-in-apost-lisbon-age/. 252 Stefan Clauwaert/Isabelle Schömann Taking precisely the later example above, the Estonian Supreme Court (Riigikohus) ruled, in a judgement of 12 July 2012 (Case No. 3-4-1-6-12), on whether Art. 4 (4) of the Treaty Establishing the European Stability Mechanism violates the principle of sovereignty in Estonian Constitution41. In this case, the Estonian nation's legal ombudsman challenged the constitutionality of Art. 4 TESM, defending the position that all decisions on granting aid requires unanimity among member states, and not an 85 % majority as stated in Art. 4 TESM. The Supreme Court ruled that is in accordance with the Constitution of Estonia, and although the contested article restricts the financial competence of the Estonian Parliament, the principle of rule of law and the sovereignty of Estonia, the decrease of the power to decide on the use of public finances is justified, as it ensures an efficient decision-making procedure in case of a threat to the financial stability of the euro area, including Estonia, in particular as stability is necessary in order for Estonia to be able to perform its obligations arising from the Constitution, including ensuring the fundamental rights of people. Interestingly this judgment tends to clarify the legal nature of the EMS as being an international agreement, while clearly demonstrating that the Treaty concerns european law. Such development would lead to the attempt to qualify the EMS as a european act that would fall under the remit of the Charter. On one side, the Estonian constitutional judges draw a clear link between the TEU and the EMS in stating that ‘By Article 1 of the European Council Decision No. 2011/199 of 25 March 2011 it was decided to amend Article136 of the TFEU and add the following paragraph thereto: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole.’ Further the judges rightly add (see point 219) that ’the Treaty was signed by the euro area Member States. It establishes the TESM as an organisation which aims to eliminate threats to the financial stability of the euro area (paragraph (6) of the preamble to the Treaty). In essence, the TESM helps to ensure the functioning of the economic and monetary union and the sustainability of the monetary policy for the purposes of Article 3(4) of the TEU and Article 3(1) (c) and Article 127 of the TFEU.’ Even though the TESM can be qualified neither as primary nor as secondary law of the European Union, ‘it cannot be precluded that in the future it may be integrated into the primary or secondary law of the European Union. In its Resolution of 23 March 2011 the European Parliament noted that all possibilities should be explored with a view to bringing the European stability mechanism fully into the institutional framework of the Union and providing for the involvement in it of those Member States whose currency is not the euro. Also the European Central Bank 41 European Stability Mechanism (ESM) judgement of the Estonian Supreme Court published in English http://www.riigikohus.ee/?id=1348. The protection of fundamental social rights in times of crisis 253 expressed in its opinion the hope that the TESM would not just be an intergovernmental mechanism, but that it would become a mechanism of the Union‘. Consequently, the legal relationship between the TESM and European law will soon be reflected in the European legal order, as the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union signed on 2 March 2012 at the European Council in Brussels explicitly aims to incorporate this international agreement into the legal framework of the European Union.42 As a consequence, national public authorities of the member states – legislative, executive and judicial – that are only bound to comply with the Charter when implementing European law might be able to check in a more constructive way the conformity of anti-crisis measures with the Charter, which is currently not the case. Indeed, so far little reference to the Charter has been made in national proceeding referring to violation of fundamental rights by national or European anti-crisis measures. This might be explained by the fact that, on one hand, it is still too hazardous to identify anti-crisis measures as European primary or secondary law or as national measures implementing European law. On the other hand, member states have made commitments under the European Convention of Human Rights, independently of their obligations under EU law. After having exhausted all remedies available at national level and as a last resort, (groups of) individuals may lodge a complaint to the European Court of Human Rights for the violation of a fundamental right guaranteed by the (R)ESC (see Chapter I) and by the ECHR. However, a recent landmark CJEU ruling has for the first time, addressed the issue, based on a preliminary question challenging the ratification of the European Stability and Monetary Treaty on the grounds that it was incompatible with the Irish constitution and the EU Treaties, including the Charter. While the TESM has been the subject of constitutional reviews in Germany, Estonia, Austria, Poland and the Netherlands, the Irish case Pringle v. Government of Ireland (CJEU C-370/12)43 directly addressed the compatibility of the EMS with the ‚no bail out‘ clause, as well as the legal validity of adopting crisis measures in the form of intergovernmental acts in the area of exclusive competences of the EU as a matter of ‚exceptional urgency‘. In brief, are the terms and operation of the TESM compatible with the principles and provisions of the EU Treaties? Of particular interest in this case is the response of the European judges to the question of whether the TESM constitutes a violation of the right to effective judicial protection under Art. 47 of the Charter. The question has arisen because, the TESM has been established outside the European legal order and as such might be 42 http://european-council.europa.eu/media/639235/st00tscg26_en12.pdf, p. 2. 43 Case C-370/12 Pringle v. Ir. 2012 ECR I- available at: http://curia.europa.eu/juris/documen t/document.jsf?doclang=EN&text=&pageIndex=0&part=1&mode=lst&docid=130381&oc c=first&dir=&cid=1702925. 254 Stefan Clauwaert/Isabelle Schömann outside the remit of the Charter. While the member states were not implementing European Union law when establishing the TESM as an international agreement, the Court recalled that member states may not disregard their duty to comply with European Union law when exercising such a competence (para. 69, 72 and 151) and by the same token confirmed existing jurisprudence on residual competences on matters related to the conclusion of international treaties (see case C-55/00 or C-307/97). However, can this be interpreted as conferring the individual’s right to effective judicial protection on the basis of the Charter? This is far from clear according to the main analysis of the case so far, in particular as the Court qualifies the TESM as falling outside the scope of the Charter in point 180 of the judgement: ‘It must be observed that 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, as is clear from paragraph 105 of this judgment, the EU and FEU Treaties do not confer any specific competence on the Union to establish such a mechanism’. Clearly, the relationship between the TESM and Union law is left ambivalent,44 resulting on one hand, in the obligation for member states to comply with Union law when establishing a mechanism such as the TEMS, but on the other hand preventing individuals from invoking Union law against any measures conceived by European institutions and implemented by the member states in their capacity as EMS members, such as the memoranda of understanding in the case of Greece, Portugal and Ireland. This is of particular concern given, on one hand, the participation of the European Commission and the European Central Bank in initiating and drafting such memoranda and, on the other hand, the need for compliance of such memoranda with EU measures of economic policy coordination (Art. 273 TFEU) that clearly fall within the scope of Union law. The pending CJEU case C-264/12 Sindicato Nacional dos Profissionais de Seguros e Afins, might bring an answer to the compatibility with the Charter of the memorandum of understanding concluded with Portugal as a condition of the financial assistance of the FSM and FSF. While the European Convention brought to life a most innovative, transparent document, the Charter of fundamental rights, described as a ‘tangible witness of the overtaking of the Europe of Merchants by a political, social and finally human Europe’,45 the development of European crisis management and the extended recourse to ‘emergency measures’ hinders the Charter of Fundamental Rights from living up to the expectation it has raised, namely to install fundamental rights at the heart of the European Union as never before and to create a European fundamental rights area, despite a new legal basis in the Lisbon Treaty. 44 Van Mallenghem (2013), Pringle: a paradigm shift in the EU’s monetary constitution. Special section, the ESM before the courts, in: German Law Journal, Vol. 14, No. 1, p. 159. 45 Lebaut-Ferrarese, Karpenschif (2004). The protection of fundamental social rights in times of crisis 255 Conclusion Neither national constitutional challenges to anti-crisis measures and mechanisms set out at the European Union level to financially support member states in difficulty, not to mention preliminary ruling submitted to the CJEU have been able to encourage the CJEU to promote the fundamental social rights of the European Union. On the contrary the strict conditionality imposed on member states to accede to financial aid mechanisms have been raised as constitutional requirement (with the amendment to Art. 136 TEU) with little room for manoeuvre for these member states at national level to allow for a democratic participation of the population and its representatives to agree or disagree with the loss of fiscal and economic sovereignty. Such a democratic deficit has, already been pointed out in a range of procedures establishing anti-crisis measures.46 Furthermore, the establishment of the ESM outside the framework of european law puts its decision-making processes beyond the influence of the European Parliament47. In parallel and on a more positive note, the critical analysis by the Council of Europe dealing with collective complaints concerning the compliance of austerity measures taken by member countries with their obligations under the European social charters, has shown how anti-crisis measures taken by member states under the umbrella of European mechanisms have clearly violated fundamental social rights at work as anchored in the European Social Charter, in particular as such austerity measures are established by European institutions and bodies whose legality is controversial, raising reservations about democratic control and legitimisation. This refers in particular to the “troika”, which is composed of the International Monetary Fund, the European Commission and the European Central Bank. Much hope is invested in the EU’s accession process to the ECHR, in particular as far as the promotion of fundamental (social) rights is concerned. Indeed accession would allow the full recognition and implementation of the Charter, similarly to the ECHR, and in parallel, aligning CJEU case law with that of the ECtHR so as to lead to a converging legal system, avoiding the current disjunction between economic and social concerns, as the CJEU seems currently to refuse to apply social rights against TESM measures on the ground that they fall outside the scope of European law. V. 46 Clauwaert/Schömann (2012), The crisis and national labour law reforms, ETUI, Brussels, http://www.etui.org/Publications2/Working-Papers/The-crisis-and-national-labour-law-reforms-a-mapping-exercise (march 2013), p. 14 f. 47 Van Malleghem (2013), p. 164. 256 Stefan Clauwaert/Isabelle Schömann Internationaler Kündigungsschutz Rudolf Buschmann Firing at will oder Internationale Normen „Firing at will!“ – mit dieser Kehrseite der US-amerikanischen „employment at will“-Doktrin betitelte Klaus Lörcher seinen Teilnehmerbericht1 über eine Dreiparteien-Konferenz von IAO-Sachverständigen im April 2011. Gegenstand waren Hindernisse einer Ratifizierung des IAO-Übereinkommens 158 über die Beendigung des Arbeitsverhältnisses durch den AG. Zu dem enttäuschenden Ausgang der Konferenz führte das abschließende Ansinnen der Arbeitgeberseite, weitere Ratifikationen und Umsetzungen des Übereinkommens nicht zu fördern, wie es Regierungs- und Arbeitnehmervertreter vorsahen, sondern statt dessen seine Aufhebung (abrogation) anzuregen. Wie aus dem Final Report des International Labour Standards Departments2 hervorgeht, hatte „the worker expert from Germany“, Klaus Lörcher, in den Beratungen verschiedene Male darauf hingewiesen, dass die Grundsätze und teilweise sogar der Wortlaut des Übereinkommens wörtlich in die Revidierte Europäische Sozialcharta (RESC) übernommen worden waren, dass die EU in ihrer Grundrechte-Charta (GRCh) das Grundrecht auf Schutz bei ungerechtfertigter Entlassung anerkannt hatte, dass EU-Richtlinien besondere kollektive Regelungen incl. der Konsultation von Arbeitnehmervertretern bei Massenentlassungen vorsehen etc. So zeigen die Beratungen der IAO-Sachverständigen exemplarisch den Zusammenhang europäischer und internationaler Normen zum Kündigungsschutz und die übergreifende Perspektive, für die Klaus Lörcher nicht nur in Fragen des Kündigungsschutzes steht. Aus Gründen des beschränkten Platzes können hier nur ausgewählte Aspekte der (R)ESC und des IAO-Übereinkommens 158 behandelt werden. Sowohl EuGH als auch EGMR greifen bei der Auslegung von Unionsrecht bzw. der EMRK auf andere internationale Normen wie die IAO- Übereinkommen oder die (R)ESC zurück, um daraus Erkenntnisse zu ziehen und Inkongruenzen zwischen parallelen supranationalen Menschenrechtskatalogen zu vermeiden. Damit könnten diese Normen auch im Hinblick auf Kündigungen verstärkt in den Fokus gerückt werden, zumal sie teilweise wörtlich aufeinander ab- I. 1 Lörcher, Firing at will – the Employers´ Response to the Crisis, Global Labour Column 5/2011. 2 International Labour Standards Department, Final Report: Tripartite Meeting of Experts to Examine the Termination of Employment Convention, 1982 (No. 158) and the Termination of Employment Recommendation, 1982 (No. 166), Geneva, 4/2011.

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Zusammenfassung

Die wachsende Bedeutung des internationalen Arbeitsrechts schlägt sich in vielen Bereichen nieder: Tarifautonomie und Streikrecht werden durch die Rechtsprechung des EGMR mitbestimmt, die ILO-Übereinkommen stellen einen Mindeststandard dar, der auch in einer Wirtschaftskrise nicht unterschritten werden darf. Nicht jeder nationale Gesetzgeber und nicht jedes Gericht hat dies aber bisher erkannt. Von daher ergeben sich viele Kontroversen, in Deutschland u. a. bei der Kündigung kirchlicher Mitarbeiter und bei der überlangen Dauer gerichtlicher Verfahren deutlich werden.

Die insgesamt 35 Autoren sind in der Wissenschaft, aber auch in internationalen Organisationen, in Ministerien und als Richter tätig. Der Band verbindet Theorie und Praxis; als Leser bekommt man nicht nur Stoff zum Nachdenken, sondern nicht selten auch ganz konkrete Handlungsanleitungen. Bislang gibt es kein vergleichbares Buch in der rechtswissenschaftlichen Literatur.