EU Labour Law Baku State University - April 2013

Prof. Dr. Christof Kerwer

EU Labour Law
 Baku State University
       April 2013

Download link

The PowerPoint slides and other course mate-
rial can be downloaded from the homepage of
 the Chair for Civil Law, Labour Law and Civil
   Procedure at the University of Würzburg:

 http://www.jura.uni-wuerzburg.de/lehrstuehle/kerwer

1
Introduction

I. Term and Distinction
1. What is EU Labour Law?
    •   (Supranational) Labour Law of the European Union
    •   Sources of Law: Treaty on the Functioning of the EU (TFEU),
        Regulations, Directives, Case law of the ECJ
    •   National Labour Law is influenced, overlaid and partly dis-
        placed by EU Labour Law
2. EU Labour Law as distinct from
    a) International Law in the area of Labour Law
          International treaties concerning Labour Law matters
           e.g.: Council of Europe‘s 1961 European Social Charter
    b) International Labour Law (conflict of laws)
          Regulations state which law is applicable if more than one
           state is involved regarding the employment relationship

II. Significance of EU Labour Law
EU Labour Law was treated differently
• 1st phase: lack of interest
   EU Labour Law was repressed by national Labour Law ex-
      perts, by lawyers and judges
• 2nd phase: confrontation
   „Sensational decisions“ by the ECJ during the 90s
    1st example: Paletta ruling
    2nd example: Schmidt ruling
   German jurisdiction and legal experts reacted to the case
    law of the ECJ with an attitude of denial
• 3rd phase: critical interest
   Convergence of ECJ‘s and FLC‘s legal perspectives
   Today: high level of critical attention

III. State of EU Labour Law
1. A cohesive regulatory system is missing
    •   On the one hand: the number of Labour Law directives and
        Labour Law rulings of the ECJ is constantly increasing
    •   On the other hand: there is only a „selective harmonisation of
        law“, EU Labour Law as a patchwork construction

          Specific issues are regulated on a very detailed level
              e.g.: written notification of working conditions
              (see Directive on employee information 91/533/EEC)

Extract from the Directive on employee information
                       Art. 2 Obligation to provide information
1.   An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as 'the
     employee', of the essential aspects of the contract or employment relationship.
2.   The information referred to in paragraph 1 shall cover at least the following:
     (a) the identities of the parties;
     (b) the place of work; where there is no fixed or main place of work, the principle that the employee is
           employed at various places and the registered place of business or, where appropriate, the domicile of the
           employer;
     (c)   (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;
     (d) the date of commencement of the contract or employment relationship;
     (e) in the case of a temporary contract or employment relationship, the expected duration thereof;
     (f)    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;
     (g) 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;
     (h) the initial basic amount, the other component elements and the frequency of payment of the remuneration
           to which the employee is entitled;
           (i) the length of the employee's normal working day or week;
           (j) where appropriate;
           (i) the collective agreements governing the employee's conditions of work;
           or
           (ii) in the case of collective agreements concluded outside the business by special joint bodies or institu-
           tions, the name of the competent body or joint institution within which the agreements were concluded.
3.   The information referred to in paragraph 2 (f), (g), (h) and (i) may, where appropriate, be given in the form of a
     reference to the laws, regulations and administrative or statutory provisions or collective agreements governing
     those particular points.

III. State of EU Labour Law
1. A cohesive regulatory system is missing
    •   On the one hand: the number of Labour Law directives and
        Labour Law rulings of the ECJ is constantly increasing
    •   On the other hand: there is only a „selective harmonisation of
        law“, EU Labour Law as a patchwork construction

          Specific issues are regulated on a very detailed level
              e.g.: written notification of working conditions
              (see directive on employee information 91/533/EEC)

          Whereas key matters are not regulated
             e.g.: protection against dismissals
             (only specific situations of employment protection are
             regulated such as collective redundancies or the pro-
             tection in the case of the transfer of an undertaking)

III. State of EU Labour Law
2. Barriers for the Europeanisation of Labour Law
    •   Differences between the national labour codes
          Differences in the level of protection
          Differences in the legal culture

    •   Lack of political will to harmonise legislation
          Emphasis on economic integration
          Social integration as an automatic consequence

    •   Emphasis of subsidiarity
          Concerns about too much centralised regulation
          Labour Law as a typical national legal matter

III. State of EU Labour Law
3. Drivers for the Europeanisation of Labour Law
   • Elimination of obstacles to mobility within the internal market
       Free movement for workers as a fundamental freedom
       Creation of a single economic space
       To guarantee the availability of labour

   • Harmonisation of competitive conditions in the internal market
       Labour Law standards as a competitive factor
       To ensure a system of undistorted competition

   • Need for a social dimension of the internal market
       Social protection as a separate aim set by the EU
       To strengthen EU citizens‘ acceptance