VETTER E learning course (EN)

The EU Charter of Fundamental Rights is an obvious source of inspiration for the European Court of Justice in clarifying the content of fundamental rights, which are to be respected as general principles of Community law. In effect, the EU Charter can become mandatory through the Court’s interpretation of it as part of the general principles of Community law.

The dynamism shown by the Court over the past 30 years as regards the recognition of fundamental rights as general principles of Community law, allows for the hope that the same judicial dynamism will eventually be applied to promote the fundamental rights in the EU Charter.

The EU Charter is a positive contribution to the promotion of trade union rights in the EU for a number of reasons. 

The EU Charter is an independent source of rights and is not limited to national practice in individual Member States. National provisions which reflect Charter rights may achieve higher legal ranking in the national system; perhaps even constitutional status. The EU Charter will reflect international sources of trade union rights, and may go beyond these. In the EU Charter, social and economic rights are recognised as having the same status as civil and political rights. The Charter puts pressure on EU institutions to promote a European social model.

This should not overlook the potential risks. The EU Charter might be exploited by employers and others to re-open many fundamental principles established in national systems.

Implementation of the Charter aims to build a bridge between programmatic (social and economic rights) and justiciable (civil and political) rights. Justiciable rights equate to effective and enforceable rights. The challenge is to establish clearly justiciable trade union rights: e.g. trade union freedom of association, information and consultation, collective bargaining and collective action, and, further, to develop implementation of programmatic social and economic rights: e.g. health, education, etc.

The tasks of an implementation strategy are three-fold. First, with respect to justiciable rights, to develop effective implementation, looking to effective sanctions, preventing regressions, removing qualifications, thresholds, exclusions, modifications. Secondly, moving more social and economic rights towards justiciability; formulating them as positive and enforceable rights; including effective sanctions. Thirdly, with respect to programmatic rights, implementation through effective monitoring of government policy and actions, with possible judicial review of consistency and powers of nullification.

The ECJ may be willing to recognise as protected by the EU Charter those fundamental trade union rights which all, or most, or even a critical number of Member States insist should be protected.

The Court may regard it as necessary to remedy any deficiencies in the articles of the EU Charter on fundamental trade union rights by interpreting them consistently with other international labour standards.

Trade union collective action has often been restricted, allegedly to protect public and/or essential services. The ILO’s Freedom of Association Committee has established international standards on collective action in public/essential services. Relying on Article 28 of the EU Charter (right to collective action), trade unions could promote challenges to more restrictive national laws. 

Article 12(1) of the Charter on freedom of association could be interpreted as guaranteeing rights which go beyond what is provided in some national laws, for example, regarding interference in a union’s internal affairs, rights to recognition by an employer, access to union members at the workplace, or to take part in union activities.

In interpreting the EU Charter, the ECJ is sensitive to where national laws have protected trade union rights. Carefully selected cases could enable trade unions to encourage the European Court of Justice to adopt a more expansive interpretation of the trade union rights guaranteed by the EU Charter.