The Effective Enforcement of EU Labour Law Open Access

This is a wide-ranging collection of essays—a product of the ETUI’s Transnational Trade Union Rights Network—examining the effective enforcement of labour rights which derive from EU law. The scope is broad, and read individually, many of the chapters are rich and thought-provoking. In combination, they provide a strong foundation for those thinking about effective enforcement, in particular in the context of EU labour law. In this short review, I will first outline the difficulties associated with the enforcement of EU law rights, before turning to consider, from a workers’ rights perspective, the labour law dimension. Finally, I will consider the effective enforcement of these rights. These three dimensions are amply discussed in the various chapters of the collection, which illustrate both the distance between rights ‘on paper’ and rights ‘in practice’, and the scale of the challenges facing those working to ensure that EU labour law is effectively enforced.

In relation to the ‘EU law’ element, the relationship between EU and national law, and between the Court of Justice and national courts, is a familiar source of difficulty. While there is some scope for the enforcement of rights which derive from EU law by the Commission directly before the CJEU using Article 258 TFEU, and a tiny scope for challenging the legality of EU law measures directly under Article 263 TFEU, most breaches of EU law rights are actionable before national courts. And while rights may derive from EU law, the standard position, in accordance with the principle of national procedural autonomy, is that remedies for breaches of rights derived from EU law are matters for national law. That principle is in turn subject to the EU law principles of equivalence and effectiveness, often accompanied by the additional requirement that sanctions are ‘effective, proportionate and dissuasive’. Under this sort of formulation, given the reluctance of the Court to trespass further into the autonomy of the Member States, differences in enforcement between the various Member States will continue to exist. The potential negative effects on ‘effective enforcement’ are highlighted in many chapters in this collection. There is also a considerable amount of reflection on the problematic gaps in the legal protection afforded by EU law, in particular insofar as migrant workers (who are ‘put in a position of special structured vulnerability and systematically subject to exploitation’, p. 267) and non-standard workers are concerned (see Chs 12, 13 and 17). Reference is made to ‘normative indeterminacy’ (p. 213) contributing to weak enforcement, and to the—albeit uneven—efforts made, both by the Court and the EU legislature, to give extra substance to, for example, discrimination law and the Charter of Fundamental Rights. Within the various chapters there are mixed assessments of the impact of the limits of the EU’s competence in the labour law field (in particular relating to the exclusions in Article 153(5) TFEU) and the increasing use of ‘soft law’ (see in particular Chs 6, 10, 15 and 20).

As all readers of this journal will know, the labour law traditions of the Member States are very different. The differences between them have led to significant tensions at the EU level, as illustrated in the Viking and Laval decisions of the Court and their aftermath. Domestic labour law rights are enforced in a variety of different ways in the Member States, making it difficult even to agree on the normative standards according to which the effectiveness of enforcement of rights derived from EU law falls to be assessed. This collection gives us pause to reflect on the different roles played by trade unions (Chs 7, 15 and 16), and by administrative, criminal and company law 
(Chs 4, 5 and 11) in national systems. It considers conflict of laws rules (Ch 8), enforcement agencies and authorities, and specific labour law courts; while also broadening the discussion by including consideration of both legal and non-legal enforcement of labour law standards, and the extraterritorial enforcement of EU labour law rules (Ch 9).

Notwithstanding the difficulties alluded to above, the book retains a focus on questions of enforcement, and in particular, effective enforcement. This element is introduced in Ch 2 by Aristea Koukiadaki and is followed up in many of the subsequent chapters. The focus, rightly, is on the extent to which workers are able to realise the rights which EU law appears to afford them. Attention is, of course, devoted to sanctions; both their ‘severity’ and their ‘inevitability’ (see p. 102). But the contributors are at pains to emphasise the point that effective enforcement can be about more than sanctions—it can, for example, also be about ‘prevention’ (an approach prevalent in relation to Health and Safety as discussed in Ch 14), ‘persuasion’, ‘deterrence’ and/or ‘compliance’. The result is that it is often difficult to assess whether ‘effective enforcement’ has occurred, and if so, what contribution what element of the legal and non-legal framework has made to the ability of workers to realise their rights.

The collection of essays ends with a draft model Directive on the effective enforcement of EU labour and social law meant, per the editors, ‘as a starting point for discussing ways in which we could improve the enforcement of workers’ rights in the European Union in a systematic and strategically harmonised way’ (p. 10). The proposed directive (set out in Ch 22) deals comprehensively with both judicial and non-judicial enforcement of workers’ rights. All in all, this collection provides a rich, multi-faceted, account of the challenges ahead, and a strong foundation for further thinking about how best to ensure that workers are able to enforce the rights EU law provides.