EU-HR Law Factsheet

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Overview

Legal systems across continental Europe are largely founded on Roman Law and Germanic customary

law. These have been highly influential in shaping national codes and have given rise to legal

frameworks that rely less on case law and 'precedent' than the common law jurisdictions operating in

Britain and the USA. The first comprehensive legal codifications during the modern era appeared in

France during the nineteenth century (Napoleonic Law), and in the newly unified state of Germany in

1900 in the form of the German Civil Code (BGB). It is important to note that certain principles contained

in the BGB are implicit elements in many other national codes today. These include the right to individual

autonomy, the role of the law to redress the vulnerability of a weaker party in a commercial relationship

(i.e. the employee) and the concept of 'unjustified enrichment'.

European Union Law

Fifty years ago, overcoming the nationalist and ethnic conflicts which had divided Europe was one of the

driving forces behind the process of European integration. For many years the focus was on preventing

discrimination on the grounds of nationality and sex discrimination. 1997 was a major turning point when

the Member States agreed to some far reaching changes to the Treaty. Following the entry into force of

the Amsterdam Treaty, the Community was given new powers to combat discrimination on the grounds

of racial or ethnic origin, religion or belief, disability, age and sexual orientation, and the power to combat

sex discrimination was widened. In the year 2000, the Council unanimously adopted two Directives and

the Community Action Programme.

The EU has legal personality in its own right. It may enter into contracts and defend its legal interests

without intervention from any of the member states. The treaty that underpins the EU is primarily

concerned with the economic relationship between states. From the outset, however, there has been a

social dimension in the treaty. This was placed there by the founding fathers as a 'quid pro quo' for the

wealth-generating benefits of the EU for the corporate sector. The basic social right was the freedom of

movement of labour. Every EU national is entitled to take up and pursue employment in the territory ofanother member state under the same conditions as the nationals of the host state (EU Treaty Art 1 and

Regulation 1612/68). A host state may only exclude an individual where there is evidence that their

personal conduct poses a present threat to public order. They may, however, impose conditions relating

to linguistic competence where this is directly relevant to their employment (ECJ case reference C-

397/87). Since 1969 and the case ofStrauder v City of Ulm a 'de facto' body of general human rights

principles has been introduced by the ECJ to avoid clashes with national constitutional rights when

making their decisions. More recently, the EU treaty has also incorporated the European Convention for

the Protection of Human Rights and Fundamental Freedoms (the Convention). Several fundamental

rights have been recognised in ECJ case law - the right to a fair hearing (C-98/79), freedom of

expression (C-260/89) and the right to privacy (C-118/75). However, when the ECJ has strayed from the

Convention, problems have sometimes arisen. For instance, in a UK case concerning client

confidentiality (C-55/790), the Court interpreted rights by reference to UK law and thereby inadvertently

turned their ruling into a precedent for other member states. In several other well-publicised cases, the

ECJ has also been willing to question constitutional rights when they have been opposed to basic

economic freedoms contained in the EU treaty.

European Union Law Current Work

The European Commission has launched a broad public debate on the need to review current labour law systems so that they are in step with the modern world of

work. With 4 out of 10 EU workers now on non-standard contracts or self-employed, reality is rapidly outpacing regulation in the European workplace. The discussion

paper (Green Paper on 'Modernising labour law to meet the challenges of the 21st century') will ask Member States, employers and workers' representatives how

labour law at EU and national level can help the job market become more flexible while improving security for workers (the 'flexicurity' approach). The consultation is

an important part of the EU's Social Agenda 2005-2010 and dovetails with several other Commission initiatives on the wider topic of flexicurity.

The discussion paper is aimed at anyone with an interest in the changing nature of work in Europe. In particular, the Commission expects to receive responses from

national authorities, trade unions and employers' organisations, as well as the general public. By having an open and vigorous debate, it hopes to encourage the

widest range of contributions possible. The consultation will remain open for four months ending on 31st March 2007.

Heads of State and Government agreed

on a framework for action based on the

commitment from Member States to

establish a set of common objectives and

targets for employment policy. This co-

ordination of national employment

policies at EU level was built around an

annual process of guidelines agreed at

the Council level, national action plans

from the Member States and a joint report

by the European Commission. This

process has been revised in 2005 to

improve coordination between Member

States and the European institutions on

the one hand and, on the other hand, to

better coordinate employment policies

with macroeconomic and microeconomic

policies of the EU. This new EES covers a

three year period, from 2005 to 2008. Its

components are:

Integrated Employment Guidelines:following a proposal from the

Commission, the European Council

agrees every year on a series of

guidelines setting out common

priorities for Member States'

employment policies.

National Reform Programmes:every Member State draws up a

programme in which is described

how these Guidelines are going to

be designed and implemented

nationally.

Joint Employment Report: theEmployment chapter of the annual

progress report is adopted by the

Council to form the Joint

Employment Report

Recommendations: The Councilmay decide, by qualified majority,

to issue country-specific

Recommendations upon a proposal

by the Commission.

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When the Luxembourg Jobs Summit (November 1997) launched the European Employment Strategy (EES) on

the basis of the new provisions in the Employment title of the Treaty, the ambition was to achieve decisive

progress within five years. An extensive evaluation of the first five years was carried out in 2002 which identified

major challenges and issues for the future of the EES. It also emphasised the need to revamp the EES with a

view to aligning it more closely to the Lisbon goal of sustained economic growth, more and better jobs and greater

social cohesion by 2010 which occurred with new simpler guidelines in 2003.

A further revision was launched in the beginning of 2005 as part of the Commission proposal for a refocussing of

the Lisbon strategy. Thus, arenewed EES is in place with the adoption of new guidelines from July 2005.

At the Lisbon European Council (March 2000), the European Union set itself a new strategic goal for the next

decade: to become the most competitive and dynamic knowledge-based economy in the world, capable of

sustainable economic growth with more and better jobs and greater social cohesion. The strategy was designed to

enable the EU to regain the conditions for full employment and to strengthen cohesion by 2010. The Council also

considered that the overall aim of these measures should be to raise the overall EU employment rate to 70% and

to increase the number of women in employment from an average to more than 60% by 2010.

The Stockholm European Council (March 2001) added two intermediate and one additional target: the

employment rate should be raised to 67% overall by 2005, 57% for women by 2005 and 50% for older workers by

2010. The Barcelona Council (March 2002) confirmed that full employment was the overarching goal of the EU

and called for a reinforced Employment Strategy to underpin the Lisbon strategy in an enlarged EU.

Following the Mid-term review of the Lisbon Strategy conducted by an independent High level group chaired by

Mr. Kok, the Commission presented a Communication on growth and jobs of February 2005 which proposed a

new start for the Lisbon strategy refocusing efforts on two goals: delivering a stronger, lasting growth and more

and better jobs. This included a complete revision of the EES governance so as to maximise the synergies and

efficiency between national measures and Community action.

The EES is designed as the main tool to give direction to and ensure co-ordination of the employment policy

priorities to which Member States should subscribe at EU level. On the basis of the new provisions of the

Amsterdam Treaty, the Luxembourg European Council of November 1997 initiated the European Employment

Strategy (EES), also known as 'the Luxembourg process'.

The EES initiated a new working method at EU level, which was to become known as the 'open method of co-

ordination'. It is based on five key principles: subsidiarity, convergence, management by objectives, country

surveillance and an integrated approach.

Subsidiarity: The method establishes an equilibrium between European Union level co-ordination in the definition

of common objectives and outcomes, and Member States' responsibilities in deciding the detailed content of

action. The definition of the means and conditions under which programmes and policies are implemented is left

to a large extent to individual Member States, who are responsible for their employment policy under the EU

Treaty. Convergence: The strategy strives to achieve commonly agreed employment outcomes through concerted

action, where each Member State contributes towards raising the European average performance. This principle

has been made more concrete by the Lisbon European Council and following Councils where full employment

was confirmed as an overarching goal of the Union and tangible targets were set for the Union as a whole. Mutual

learning: Exchanging good practice and experience is one of the core objectives of the open method of co-ordination of the EES. A Member State can learn from the

experiences of other countries, which may have already found answers to similar challenges in the labour market. Through encouraging mutual learning at all levels

within key areas of the EES, knowledge is built about the most effective policies and how these should be implemented. Integrated approach: The Employment

Guidelines are by no means restricted to active labour market policies but extend to social, educational, tax, enterprise and regional policies. Structural reforms cannot

be obtained through isolated and dispersed actions or measures, but require consistent and concerted action over a wide range of policies and measures. These

measures need to be tailor made to address diverse needs and conditions. This means that the 'Luxembourg process' is not 'owned' by the Ministries of Labour and

Employment, but calls for comprehensive employment policies committing Governments as a whole, as well as a wide range of stakeholders. Management by

objectives: The success of the strategy relies on the use of quantified measurements, targets and benchmarks, to allow for a proper monitoring and evaluation of

progress. These objectives are based on shared values among the Member States and cover issues which are felt to be of common concern. Progress towards these

objectives are defined either in terms of quantitative or qualitative indicators. Through the use of targets and indicators, the results of policies are made transparent

and therefore open to public scrutiny.

Workforce development and better

matching of jobseekers and vacancies in

the labour market are among the key

objectives of the ESS. These objectives

require an efficient delivery system, in

which the European Public Employment

Services play a prominent role. In spring

1997 a network was created to promote

co-operation and exchange. The network

operates on the basis of annual work

plans that are defined and discussed at

half-year meetings of the Chief

Executives of the national Public

Employment Services. Core objectives

are to support the modernisation of

employment service delivery systems,

and to optimise the contribution of Public

Employment Services to the

implementation of the European

Employment Strategy and to the

integration of the European labour

market. Among the themes that have

been closely developed over previous

years are: prevention of long-term

unemployment, identification of

occupational segments in the labour

market suffering from recruitment

difficulties, integration of EURES into the

national PES activity programmes,

utilising the opportunities offered by a

mixed market of public and private

employment service providers,

development of ICT-based self-service

systems, linking active employment

services with the operation of

unemployment benefit schemes,

development of modern management

systems, strengthening the effectiveness

of Public Employment Services

operations at regional and local level.

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