On 2 September the European Court of Justice (ECJ) ruled in favour of the European Commission in the social dialogue case initiated by EPSU in May 2018. In the end, we lost the legal arguments around our interpretation of the Treaty as well as the leeway the Commission has to bring social partner agreements to the European Council for a decision to implement as EU legislation. The ruling gives much discretion to the Commission while also adopting rather low standards for judicial review of its processes.
EPSU launched the legal challenge when the Commission - after two years of dithering and lies - informed us that it would not bring forward the agreement on restructuring that was signed in December 2015 by the European trade unions and employers in central government administrations. This agreement aimed to provide information and consultation rights to workers in the sector. Social partners wanted the Commission to submit it to the Council for a decision so it would apply across the EU. The Commission refused, with the Court finding no fault in this position despite the lack of evidence and brevity of its arguments.
Commission should have higher standards
However, it should not be forgotten that that the General Court indeed found fault in the way the Commission handled our case. This raises a problem of administrative law and good public administration practice in the EU that, in my opinion, is insufficiently recognised. Taking a broader view, the ruling allows the Commission to get away with certain decisions while also undermining credibility. The Commission’s decision-making processes should be held accountable to high standards and the Court should review this.
Need for labour chamber
The ruling also highlights that the judges seem unaware of the dynamics of industrial relations and have limited experience of labour conflicts, with many having a background in commercial and competition law. Said judges failed to refer to other sources of law – such as the considerable jurisprudence based on ILO Conventions or the European Convention of Human Rights - lending further support for the ETUC’s call for the Court to establish a labour chamber.
Furthermore, the case raises the issue of the EU’s failure to meet its legal obligation to accede to the European Convention on Human Rights (ECHR) under Article 6(2) of the Treaty of Lisbon; a failure underlined by the ECJ itself preventing this accession. The purpose of the EU’s accession to the ECHR is the creation of a single European legal space, achieving a coherent framework of human rights protection throughout Europe. It could be argued that a more careful consideration of the ECHR Social Charter and its jurisprudence may have made a difference. Our actions have made clear that European trade union federations such as EPSU have a clear right to take a case to the ECJ should the Commission take decisions against us.
Urgent action
While we will continue to analyse the precise wording for positive and negative effects, there are two immediate consequences of the judgement. Firstly, ten million workers in public administration still do not have the same rights to information and consultation in EU law as other workers. The Commission has done nothing yet to address this in what is effectively a breach of the European Pillar of Social Rights – a concept which guarantees information and consultation rights to all workers. The Commission must address this in close discussion with employers and the trade unions.
Secondly, it must be remembered that it was the Commission itself that created this uncertainty over the process of European level negotiations and what unions and employers can expect regarding their agreements. It can therefore be concluded that this is a mess of the Commission’s own making and one that must be remedied in collaboration with social partners.
Though this legal battle may be far removed from the daily reality of public service workers, it has underscored the commitment of the Federation and its members are prepared to take the fight for the rights of our workers and unions it all the way. Together, this dedication is something we can take pride in.
