School of LawSchool of Lawhttp://hdl.handle.net/2262/17852024-03-28T10:35:33Z2024-03-28T10:35:33ZThe Horizontal Effect of the European Charter of Fundamental Rights in EU Labour LawPahlen, Thomas Juliushttp://hdl.handle.net/2262/1073172024-03-15T18:01:45Z2024-01-01T00:00:00ZThe Horizontal Effect of the European Charter of Fundamental Rights in EU Labour Law
Pahlen, Thomas Julius
In 2018, in Bauer and Broßonn, the Court of Justice of the European Union (CJEU) ruled
that a worker can enforce the right to paid annual leave against his or her employer based
on the Charter of Fundamental Rights of the European Union (Charter). This horizontal
effect of the Charter, its invocation between private parties, has long been a controversial
topic in EU law and it has found renewed relevance concerning fundamental rights
attributed to workers (labour rights). Previously, in AMS in 2014, the CJEU had denied
the worker’s right to information and consultation within the undertaking to be applied
between private parties. In its jurisprudence, the CJEU appears to have developed two
criteria for horizontal direct effect, namely the unconditional and the mandatory nature
of the provision in question. The thesis will argue that, in its current form, this test remains
insufficient and causes legal uncertainty, for employees and employers alike. The aim of
this thesis is to address this uncertainty in further developing these criteria to be able to
assess the potential of labour rights to be applied horizontally. Therefore, the main
research question is to clarify when labour rights have horizontal effect. This logically
leads to the sub-question what the criteria for horizontal effect should be and whether the
CJEU’s criteria can be specified to provide a more effective test. Furthermore, the
horizontal effect of the Charter regularly comes into play in the context of EU directives
which famously lack said effect. Therefore, another sub-question concerns how EU
directives should be taken into account, if at all.
Doctrinal legal analysis will be employed, with a heavy emphasis on grammatical,
historical, systematic and teleological interpretation of individual provisions of the
Charter. A doctrinal legal analysis of the theoretical foundations of horizontal effect will
provide the basis for suggesting a practical test to answer the main research question. This
practical test will be employed to analyse the CJEU’s jurisprudence on this issue and to
evaluate its current approach.
The objective of the first part of the thesis is to engage in the theoretical issues behind
horizontal effect from a general constitutional and EU law perspective. Firstly, this
includes the problem of the relationship between fundamental rights and private law,
specifically in labour and employment law. Secondly, the horizontal effect of labour
rights will be discussed, leading to the question if the differences between labour rights
and more traditional civil and political human rights justify different results regarding
their horizontal application. Lastly, from the perspective of EU law, the horizontal effect
of Charter provisions also poses the systematic challenge of their relationship with EU
directives which cannot be applied directly horizontally. In its second part, the thesis
provides a critical evaluation of the growing jurisprudence against the backdrop of the
theoretical analysis. The individual chapters will focus on the case law regarding Articles
21(1), 27 and 31(2) of the Charter, evaluating the CJEU’s judgments based on the more
comprehensive requirements proposed in the first part. In its last part, it will examine the
potential of the right to fair and just working conditions in Art. 31(1) of the Charter – still
undetermined by the CJEU – to be applied horizontally.
The thesis found that the distinction between rights and principles in the Charter is
instrumental for the question of horizontal effect. According to Art. 52(5) of the Charter
and the respective Explanations to the Charter, principles require an implementing act to
be justiciable. They are only judicially cognisable in the interpretation and review of the
legality of such acts. Rights, on the other hand, can also be used for a claim to positive
legal action. Although the CJEU has only rarely expressly acknowledged this distinction in its jurisprudence, the case-law, in particular the legal reasoning found in AMS, suggests
that principles cannot have horizontal effect. In contrast, the thesis will argue that
principles should still have horizontal direct effect, albeit in a limited sense. It should be
possible to rely on a principle to oblige a judge to disapply a conflicting provision of EU
law or national law. The difference in justiciability would still be guaranteed because only
rights could be used as a basis for claims to positive legal action. Moreover, an inherent
characteristic of is that they provide significant legislative discretion. Consequently, this
increases the threshold to disapply a conflicting provision. Therefore, although
potentially every labour right can be applied horizontally, even if categorised as a
principle, the extent of their justiciability differs depending on this categorisation.
The CJEU’s criteria for horizontal direct effect, an unconditional and mandatory nature,
are currently inadequately defined. For both criteria, the case-law suggest an emphasis on
the text of the individual provision, which may lead to ambiguous results because of the
vagueness of the phrasing in the Charter. Concerning the mandatory nature, the CJEU
has often emphasised that the fundamental right has found protection as a general
principle of EU law or essential principle of EU social law. This does not serve as a
practically useful criterion for most labour rights in the Charter. These unwritten rules
cannot provide any clarity when they have not previously been part of the CJEU’s
jurisprudence.
The thesis suggests that the definition should take into account that the role of horizontal
effect of labour rights should be to serve as a limitation of legislative discretion and to
address the imbalance of power inherent in the employment relationship. The
unconditional nature should be defined as the need for an implementing act into EU or
national law to specify the legal prerequisites of the provision. This is directly related to
Art. 52(5) of the Charter and requires that there is no legislative discretion given regarding
the legal prerequisites of the fundamental right. The mandatory nature should be
characterised as creating an obligation to achieve a particular result, meaning that the
legislative discretion is limited regarding the legal consequence of the provision. This
requires an interpretation of the provision concerning wording, history, systematic
structure and purpose. The purpose of the fundamental right should be the most important
criteria in this procedure. Its purpose should be related to the imbalance of power inherent
in the employment relationship.
Moreover, the case law highlighted that the criticism of horizontal effect regarding a
conflation of EU directives and Charter could be mitigated by a more prominent use of
Art. 52(1) of the Charter. This provision states that every limitation of a fundamental right
should respect their essence and should be subject to the principle of proportionality. This
provision is especially relevant regarding Art. 21(1) of the Charter because of its
prohibitive character but it also concerns labour rights whose specificities often require a
balancing of rights and interests by the legislature, in EU law most prominently in the
form of EU directives. Directives can be used to specify the requirements of Art. 52(1)
of the Charter. More specifically, the directive provides the result of a balancing
procedure which is the test of proportionality. In this case, it is adequate that the judiciary
respects the legislature’s balancing of rights and interests instead of overwriting these
considerations.
APPROVED
2024-01-01T00:00:00ZMaria Grazia Porcedda, The GDPR as a cyber risk management system: the ECJ cautiously tackles data breaches in the NAP casePorcedda, Mariahttp://hdl.handle.net/2262/1072952024-03-14T18:00:34Z2024-01-01T00:00:00ZMaria Grazia Porcedda, The GDPR as a cyber risk management system: the ECJ cautiously tackles data breaches in the NAP case
Porcedda, Maria
When the Bulgarian National Revenue Agency (Natsionalna agentsia za prihodite or the
‘NAP’) suffered a malicious data leak in 2019, it joined the growing ranks of organizations
affected by cyberattacks. With security often being an afterthought in cyberspace, data
breaches have become a drawback/reality of networking. Beneath the glitter of
digitalization and the data economy lie illicit markets, “the central commodity of which is
stolen data”. The NAP data breach, which affected 6 million Bulgarians and foreign citizens,
sparked several actions to recover damages such as the proceedings that led to the
Natsionalna agentsia za prihodite (NAP) case. While
Breyer was technically the first ECJ
judgment linked to a cybersecurity incident, the
NAP case is the first to deal with data
breaches and ‘cyberoffending’ in the context of the GDPR. Its importance cannot be
overstated: proceedings brought by individuals against the Irish Health Service Executive
in the aftermath of a 2021 HSE ransomware attack have been stayed pending the outcome
of this and similar cases.
2024-01-01T00:00:00ZThe European Union's Forced Labour Regulation: Putting the `Brussels Effect' to work for international labour standardsEustace, Alanhttp://hdl.handle.net/2262/1072812024-03-12T10:43:17Z2023-01-01T00:00:00ZThe European Union's Forced Labour Regulation: Putting the `Brussels Effect' to work for international labour standards
Eustace, Alan
In September 2022, the Commission adopted a proposal for a Regulation on prohibiting products made with forced labour on the Union market. This arises in a context of rising concern over many years about breaches of workers’ fundamental rights and core standards of the International Labour Organization in supply chains of products that are marketed in Europe, particularly where multinational corporations have offshored production to states without the high labour standards enforced in the EU. There has also long been widespread concern, particularly from trade unions, that such offshoring enables manufacturers to undercut labour protections of European workers. Furthermore, the offshoring of manufacturing has enabled certain third countries to develop their industrial and technological capacities in ways that create geostrategic risks for the EU and its Member States, as these third countries become ‘systemic rivals’ of the Union. First, this article argues that the proposed Regulation fits with Anu Bradford's theory of the ‘Brussels Effect’ exposited in her 2019 book of that name, and that the Union should take advantage of Bradford's insights in developing the Regulation and future legal instruments. Bradford established the Brussels Effect as an empirical reality; this article makes a normative case that, in this instance, the EU institutions should actively embrace it as a means to advance its goals. The proposed Regulation is an example of the Union leveraging market power to accomplish normative goals, by exporting its values to third countries. This offers room for the EU to be a force for good in the world, answering some of the qualms raised in Bradford's work about the potential ‘imperialism’ of the Brussels Effect. The present article argues the Union should go further, try to ‘externalise’ more of the social acquis in the field of labour law, leveraging its international market power to both improve labour standards around the globe. This article challenges Bradford's original contention that the Brussels Effect does not apply to labour standards, arguing instead that it is possible, and normatively desirable, for the Union to follow this Regulation with a broader suite of measures aimed at globalising European labour standards, with benefits for both third-country nationals and citizens of the Union. Second, the article links the proposed Regulation to concern about the geostrategic vulnerability of Member States and the Union as a whole, where essential products are manufactured in third countries. This became apparent during the Covid-19 pandemic, with many critical supplies predominantly manufactured outside the Union. The ‘strategic autonomy’ agenda of the EU implies re-shoring of important industry, which is more easily accomplished where EU regulation lessens the ability of third countries to undercut the EU with low labour standards. This will have long-term economic benefits for the Union and its citizens, as well as depressing the potential for systemic rivals to the Union to develop their industrial and technological capacities at the expense of the Union and its Member States, and deprive governments that disregard fundamental rights of workers of revenues from investment, manufacturing and exports to the Union.
PUBLISHED
2023-01-01T00:00:00ZIrelandEustace, AlanBell, Markhttp://hdl.handle.net/2262/1066162024-03-15T01:40:12Z2024-01-01T00:00:00ZIreland
Eustace, Alan; Bell, Mark
Luca Ratti, Elisabeth Brameshuber and Vincenzo Pietrogiovanni
As readers will be aware, Directive 2022/2041/EU on adequate minimum wages in the
European Union ‘sets a dual goal’: ‘improving the adequacy of statutory minimum wages as
well as the promotion of collective bargaining’.2 Starting with the former, the process for
setting and updating the statutory minimum wage in Ireland is broadly in conformity with the
standards of the Directive.3 In 2023, the national minimum hourly rate of pay was EUR 11,30.
When adjusted for purchasing power, this was the sixth highest amongst the 21 EU Member
States with statutory minimum wages.4 Nevertheless, when viewed as a proportion of median
hourly wages, the national minimum wage is estimated to have fallen between 2019 and 2021,
from 53.5% to 50.9%.5 As discussed later in this chapter, the Irish government has a target of
raising the national minimum wage to 60% of median hourly wages by 2026.6 The Directive
is likely to make a contribution insofar as it reinforces the rationale for pursuing this objective.
It will also pose questions about some of the detailed aspects of Ireland’s statutory minimum
wage system.
If the Directive’s impact on the statutory minimum wage seems incremental in nature, its
industrial relations elements have the potential to be very significant indeed.
IN_PRESS
2024-01-01T00:00:00Z