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7/31/2019 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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