The EU constitution: a trade union issue

On 18 June 2004, the member states of the EU adopted a draft treaty establishing a Constitution for Europe. Although this may not seem to have much to do with trade unions, it will have important implications for the labour movement. Brian Bercusson, Professor of Law at King's College, London and Director of Thompsons European Law Unit, explains.

Part I: the European Social Model

Despite the resistance of successive UK governments to the concept of 'social partnership', the EU has developed a 'social model' as a way of operating. This involves both employers and employees in the processes of decision-making.

Key elements of this model have now been enshrined in the EU Constitution. Part I, in Article I-47, states that 'The European Union recognises and promotes the role of the social partners at Union level' and 'shall facilitate dialogue between the social partners, respecting their autonomy.'

This is significant because of the three levels at which the EU model of industrial relations operates Ð workplace, sectoral and national. It is the existence of all three levels of social partner interaction and their inter-relationship that define the specific character of the European model.

Critical to its success is the collective organisation of workers and employers, the central actors in a 'social partnership' model. This defining feature of the European model implies substantial trade union membership, a pre-condition for the emergence of social partnership.

Even more than with directives, which have already obliged the UK to introduce labour law rights for workers (see box), the EU Constitution will prevent future UK governments from violating the values, objectives and policies of the EU social model.

Part II: The Charter

Just as important as these institutional safeguards are the rights enshrined in Part II of the Constitution, the EU Charter of Fundamental Rights. There is a general consensus that it breaks new ground by including not just traditional civil and political rights, but also a long list of social and economic rights.

The Charter includes provisions that are at the heart of labour law in Europe: 

• freedom of association (Article 12) 
• right of collective bargaining and collective action (Art. 28) 
• workers' right to information and consultation within the undertaking (Art. 27) 
• freedom to choose an occupation and right to engage in work (Art. 15) 
• prohibition of child labour and protection of young people at work (Art. 32) 
• fair and just working conditions (Art. 31) 
• protection of personal data (Art. 8) 
• non-discrimination (Art. 21) 
• equality between men and women (Art. 23) 
• protection in the event of unjustified dismissal (Art. 30).

The potential

If ratified, the charter will be part of a constitution with the potential to deliver significant rights at work. The meaning of those rights will become clear when someone makes a complaint that trade union rights (or labour standards) are being violated and the matter is referred to the European Court of Justice.

The court has already rejected the view that the EU standard reflects 'the lowest common denominator'. This holds out the promise of greater freedom of association, collective bargaining and collective action in member states where these are currently denied or restricted.

The court will also draw upon international labour standards and Council of Europe measures. The incorporation of the EU Charter into the constitutional law of the EU will have an impact on the member states, bound by the charter through the doctrine of supremacy of EU law.

The resistance

During the process of drafting the constitution by the Convention on the Future of Europe, some member states made strenuous attempts to downgrade the legal effects of the charter. Explanations prepared by the Presidency of the Convention were seized upon in an attempt to narrow down the rights provided by it.

In the final negotiations over the constitution in Brussels in June 2004, another Article 52(7) was added to the charter. This said that 'the explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States'. This new paragraph reinforces the potential role of national courts in using the charter, and is unlikely to prevent the European Court from exploiting the charter.

In an interview in the Financial Times on 18 June this year, the President of the European Court of Justice, Vassilios Skouris, was quoted as saying that the draft constitution, including the charter, 'will bring new areas and new subjects under the court's jurisdiction'.

He, in turn, called for the charter to be made legally binding within the constitution, something that the UK government in particular has argued against. The Financial Times article noted that 'many lawyers doubt if the legal impact of the charter can be ring-fenced in this way. Mr Skouris could not give assurances that the charter would not have an impact on UK law'.

If that turns out to be the case, there will be no more 'protection' of UK labour laws, frequently condemned by the supervisory bodies of the International Labour Organisation and the Council of Europe for violations of international labour standards, from the impact of labour rights guaranteed by the charter.

Part III: The Social Chapter

Part III of the constitution mostly replicates the 'social provisions' of the EC Treaty. But there is one significant change that illustrates the (perhaps) unintended consequences of constitutional amendment.

That is, that social dialogue agreements are characterised by the constitution as 'non-legislative' measures, so the social partners and their agreements may now be protected from judicial (and other) review. Court challenges, like that to the Parental Leave Agreement, may not be allowed.

Fundamental strategic issue

The fundamental strategic issue posed in the new constitution is the future role of the social partners and social dialogue in the constitutional and legal order of the European Union.

Will the role of the social partners be confined to an industrial relations sub-system subordinate to the internal market regulated by the EU institutions? Or will it have a role of autonomous regulation of social policy by constitutionally recognised social partners?

As ever, the European and national trade union movements must struggle to ensure that, through its active constitutional practice, the EU realises the promises of the EU Charter and the Constitutional Treaty.