The Charter of Fundamental Rights and protection of workers’ rights in the EU

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With the ratification of the EU Reform Treaty, the Charter of Fundamental Rights will acquire a binding legal status, but not on all of the EU’s territory. In a highly regrettable move, the Governments of the UK and Poland have secured a so called opt-out from the Charter, by adding a protocol that the latter does not create new justiciable rights applicable to their countries.

One of the main reasons for the UK’s opt-out is fear that the Charter could interfere with British labour law, as it contains some social and economic rights that are not codified in other binding European human rights instruments. For example, the European Convention on Human Rights (ECHR), which was adopted in 1950 under auspices of the Council of Europe, focuses exclusively on civil and political rights. In order to remedy the ensuing weak protection of social and economic rights in Europe, the Council of Europe adopted the European Social Charter (ESC) in 1961.

The ESC contains a comprehensive catalogue of rights in the fields of social policy, employment and industrial relations and is the first international treaty to recognize the right to strike. However, ratifying states are allowed to accept a limited number of the Charter’s provisions. Furthermore, the ESC has a rather weak enforcement machinery. While the ECHR allows for individual complaints made to the European Court of Human Rights, the implementation of the ESC is based on recommendations from the Committee of Ministers, which do not have the same legal force as ECHR rulings.

Now that it has become binding, the Charter of Fundamental Rights provides a more farreaching protection of workers’ rights than the ESC and can therefore be hailed as a step forward. It is innovative in the sense that it combines in one document both the classical civil and political rights and social and economic rights, which have always had a second rank status in Europe. Furthermore, it contains generous provisions for collective labour rights, such as the right to freedom of assembly and association (Article 12, relevant for trade union action), the right to information and consultation in employment (Article 27) or the right to collective bargaining and action, including strike action (Article 28). It is especially article 28 that has made the UK reluctant to accept the Charter, fearing that it will end the UK’s flexible labour laws and in this way slow down economic growth. What the British optout means for British workers remains to be seen. According to legal experts, it is an illusion to think that the Charter will not influence national laws, despite the secured safeguards.

It will ultimately be the judges of the European Court of Justice (ECJ) who decide on how to interpret the Charter, including the British restrictions. Furthermore, British firms operating in another member state will be directly affected, whereas it is also probable that migrant workers in the UK will start claiming the same rights as in their countries of origin. Finally, apart from direct legal impact, the Charter will also work as a tool of political mobilization, inspiring workers in the UK to demand the same level of protection as their colleagues in other parts of Europe.

For these reasons, the Charter of Fundamental Rights is likely to have a positive effect on the protection of workers’ rights across the EU. However, it is unclear in how far it will contribute to addressing one of the EU’s major problems in this field, namely that of the protection of the rights of undocumented migrant workers. For it is only when such workers are allowed to enter trade unions and to undertake legal action against exploitation that the Charter will be a meaningful tool for  protecting the rights of ALL workers in the EU and not only its citizens.

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