A Culture of Commodification? Labour Rights in the Charter of Fundamental Rights of the European Union

Abstract

This article examines the deficiencies of the labour rights enshrined in the Charter of Fundamental Rights of the European Union (EU). It draws on the notion of labour as a fictive commodity in order to showcase how labour rights in the Charter can also be framed as being part of a commodification process, owing to a culture of commodification that is prevalent across the various institutions of the EU, and which has influenced the drafting, application and interpretation of those rights. As a result, labour rights may exist, but are only allocated a perfunctory role of maintaining the status of labour as a commodity. Their justiciability is questionable and there are limitations on their scope and direct effect. Finally, labour rights in the Charter are often conceived as subordinate to economic freedoms, exhibiting strong path-dependence and leading to a series of missed opportunities for their decommodifying potential to materialise.

1. INTRODUCTION

Labour rights are an essential component to the social dimension of the European Union (EU). Their existence has been long-standing. In one way or another they are found in the jurisprudence of the Court of Justice of the European Union (CJEU/Court), as well as in instruments such as the Community Charter of Fundamental Social Rights of Workers and, more recently, in the European Pillar of Social Rights. Most notably, some are enshrined in the Charter of Fundamental Rights of the EU (Charter/CFREU), which has helped solidify their existence as part of the European acquis and constitutionalise their standing post-Lisbon, albeit not without issues as will be discussed later in the article.

Despite the range of initiatives underway, it is fair to say that social and labour rights protection at the EU level could be further improved.¹ In the late 2000s, a series of judgments by the CJEU colloquially named the Laval Quartet crystalised how social rights, and labour rights in particular, have been normatively positioned as inferior to economic rights and freedoms by key EU institutions, such as the Court.² The Pillar and its associated initiatives intend to remedy this imbalance, at least partly, but what if the inadequate protection of labour rights is so entrenched in the (constitutional and institutional) architecture of the EU that it can only be remedied by fundamentally revolutionary changes?

Against this backdrop, the article investigates the normative positioning of labour rights in the Charter of Fundamental Rights of the EU. Drawing on the text of the Charter and its associated documents, such as its explanatory notes, the relevant jurisprudence of the CJEU, as well as the broader constitutional architecture of the EU, the article argues that a prevailing culture of commodification spills over to the framing of labour rights. The impact of this culture of commodification is manifested in a number of problematic areas, such as labour rights' inconsistent justiciability, and has prevented their full potential from materialising. A widespread culture of commodification is ingrained in the development of European integration and the EU’s institutional structure, which has contributed to the framing of labour rights as an essential component of the commodification process, or as a fictive commodity, in other words. Inspired by the accounts of labour as a fictive commodity, the article adjusts and applies this framework to the realm of labour rights in order to provide a systematic account of the Charter’s entrenched deficiencies.

The Charter, which was heralded as the bill of rights of the EU, with equal legal status to the Treaties according to Article 6(1) TEU, makes the labour rights laid down in its provisions key to the present research. The centrality of the Charter, and the involvement of all key EU institutions in its journey, are also important factors to consider when exploring the impact of commodification on the labour rights enshrined therein. Finally, it makes sense to focus on labour rights, not only due to their obvious link to the idea of labour as a fictive commodity, but also because they have their own modus operandi going to the heart of EU labour and non-discrimination law, which distinguishes them from other social rights such as those associated with social security, or social provision more broadly. They also tend to be more enforceable than other social rights.

The article is structured as follows. It begins by setting out the idea of labour as a fictive commodity, which acts as the analytical framework of the research. It then moves on to identify the key elements that lead to the labour rights enshrined in the Charter becoming part of the commodification process. These are the problems with their justiciability, their limited scope and direct effect and issues of subordination, path-dependence and missed opportunities. What comes next is the discussion of an overarching culture of commodification, which prevents labour rights in the Charter from reaching their full decommodifying potential. Finally, the conclusion summarises the key takeaways of the article and shares the view that the current socio-political context, together with the Pillar’s lofty aspirations may be powerful enough to lead to a different approach to labour rights with stronger decommodifying effects, provided there is a genuine commitment for path-departure reflected through transformative and radical changes.

2. LABOUR, LABOUR LAW AND LABOUR RIGHTS AS PART OF THE COMMODIFICATION PROCESS

The traditional premise behind the need for labour protection through legislation and rights is found in the long-standing principle that ‘labour is not a commodity’, which was (also) stated in the International Labour Organisation’s Declaration of Philadelphia of 1944.³ Although labour, and more specifically labour power can be the object of market transactions or influence how (labour) markets operate,⁴ the principle stresses that ‘the human beings who provide labour should not be treated like commodities to be bought at the cheapest price possible and discarded when no longer needed’.⁵ It echoes the long-standing view of the unequal relationship between the parties in the employment relationship, which calls for regulation as opposed to free market laissez-faire.⁶ Since the abolition of slavery, the notion of labour is synonymous with that of labour power⁷; it has become associated less with the human body stricto sensu and more with a person’s capacity to provide their services, or, in other words, to work. This is the modern conceptualisation of labour, emerging at the same time as economic thought; an outcome of market rationalisation that is engrossed in valorising everything.⁸

To be more precise, labour tends to be perceived as a fictive or fictitious commodity. It is a human activity that has been turned into one by reason of the markets.⁹ It becomes an object of market exchange, whose essential character is undermined by the commodification process since it was not originally intended to form part of this process.¹⁰ Labour’s sui generis character as a fictive or fictitious commodity means that it cannot be self-regulated as a conventional commodity can. Labour markets are not conventional commodity markets, but, instead require some form of regulation.¹¹ That form of regulation is labour law, ‘which underpins the creation of labor power as a commodity, and regulates the resulting social and economic relations’.¹²

In contemporary capitalist society, where the actual fictive commodity is labour power, labour laws are a tool to protect the latter.¹³ Commodification does not automatically result in protective regulation to countenance it. Protective regulation through labour law-making is the outcome of power struggles between interested parties and the state.¹⁴ It is part of what Polanyi calls countermovement, which aims, through—among other things—protective legislation, to contain ‘the deleterious action of the market’.¹⁵ Countermovement is part of the Polanyian notion of double movement; as the market expands, measures to protect society from a self-regulating market were deemed necessary, especially for fictitious commodities such as labour.¹⁶

Labour law, and the associated labour and social rights, as well as post-war industrial relations more broadly, have been posited as a tool to decommodify labour or at least to keep the extent of its commodification in check. Labour law resists the commodification of labour through ‘a protective role for the state but also an enabling role for actors’.¹⁷ This was primarily achieved through the standard employment relationship, which benefitted from a range of protections.¹⁸ The rise in atypical forms of work that particularly affect traditionally disadvantaged communities, which often fall outside the protective scope of labour law and social rights, has led to a new wave of commodification of labour.¹⁹ Platform work is a recent example of new forms of labour as commodities. The regulation of labour through law has traditionally targeted issues of allocation and control, but to truly address labour as a fictive commodity, it ‘should also address the problems of incorporating labour into the market and the reproduction of labour’.²⁰

Labour law has been described by Arthurs as ‘law incarnate, an experiment in social ordering that reveals the true nature of the legal system in general’.²¹ The true nature of the legal system though is dependent on the driving ideologies of that system, and of the non-law processes that surround it. In the context of this research, the ordoliberal origins of the EU, with the long-standing primacy of the economic over the social and the light touch approach to supranational regulation, resulted in the relatively limited scope and normative power of EU labour law. Not only that but as Peebles argued, the constitutional architecture of the EU does not tend to accord rights to people because they are human, but because they have some value or, in other words, because they are personified commodities.²²

Labour law may be law incarnate, but to truly counteract the commodification of labour, labour law’s guiding principles have to be accompanied by substantive rights and procedural norms.²³ Basing the regulation of labour on market demands, then, distorts labour law’s original purpose.²⁴ Market forces and actors, through their influence in non-legal and legal processes, such as lobbying, policy and law-making, but also the latter’s social and cultural elements in each particular setting, are responsible for the distinct development and can perpetuate (at least aspects of) the commodification of labour.²⁵ This includes and specifically impacts labour law. Although this is not a manifestation of a truly competitive market self-regulating its demand and supply sides ending up in a win–win situation as neoclassical economists believed, it still showcases how the market retains an influential role which is key in the conceptualisation of labour as a commodity, albeit of a peculiar or fictitious nature.²⁶ In other words, labour law of that kind leads to the recommodification of labour.²⁷

By adopting fragmented safety nets that cover only certain circumstances and situations, labour law itself becomes commodified, manipulated by the markets to the degree that it is desirable for their functioning, and adhering at the same time (or at least not overtly contradicting) any international or ideological obligations or widely accepted social values and principles.²⁸ In a Polanyian sense, labour law is subordinated to the laws of the market, taking on the form of a fictitious commodity, in turn, underscoring the market’s role in society, even if in a more civilised or covert form than in the past.²⁹ Weak labour protection inevitably leads to higher degrees of commodified labour.

In sum, in some systems, labour law may appear to protect against the commodification of labour, but, lacking in substantive and procedural norms to truly address it, transforms into a commodity on its own. In these systems, the contingent nature of labour law’s safeguards is part of the commodification process, as long as it does not ‘lead to “progressive” labour institutions’.³⁰ In other words, labour law is used as a means to an end. That end is the goal of profit maximisation by the demand side of the labour market.³¹ Piecemeal labour protection can lead to profit optimisation for the demand side (the employers), and, likewise, push the supply side (the workers) to offer their ‘services’. In the context of market ordering, especially in globalised settings, to ensure effective worker protection, labour law should also not be treated as a commodity.³²

Considering labour law as part of the commodification process, is simply a pragmatic manifestation of how modern-day markets work, ascribing a Polanyian reading to the neoliberal and/or neoclassical utopia of a labour market purely operating under the laissez-faire ideal. At the same time, it acknowledges that the notion of countermovement in its Polanyian sense and as embedded in law and regulation did not fully materialise in certain settings, wherein ‘a potential restriction on markets can also be coopted for market-led purposes’.³³ Treating labour law as part of the commodification process, implies that the market and its supporters aim at coopting the potentially restricting effects of labour law, and tweaking it in a way that departs from its normative tradition and ambition ‘to be more than a technology of efficient human resource management’.³⁴ Put simply, standards of protection and decommodifying ambitions are lowered.

Taking a step further, Pistor emphasises the role of legal coding in the commodification process. According to her, capitalism ‘is more than just the exchange of goods in a market economy; it is a market economy in which some assets are placed on legal steroids’.³⁵ Consequently, law plays a crucial role in capitalist societies, with at least fictive commodities being institutional creations that require law and regulation to some degree. Legal coding, thus, can be perceived as what makes labour power a fictive commodity. Labour law, then, intends to act as the countermovement that protects society from the destructive ‘legal’ forces that serve the free market. In that double movement between distinct legal fronts, it seems that market-serving legal coding retains the upper hand, due to its structurally privileged position, but also that of its stakeholders in terms of resources and direct or indirect state support.³⁶ The scope of labour laws can, thus, be easily undermined or manipulated. Even if genuinely protective, unadulterated and decommodifying labour laws were adopted, those privileged pro-market legal actors would try to evade them.³⁷ The capitalist regulatory and legal landscape facilitates this, be it through the laws in force, their drafting, scope or interpretation. In other words, the countermovement represented by labour law might only be there to protect from commodification’s excesses.³⁸

How do labour rights fit into the picture? Like labour law they can help with the issues raised when markets consider labour as a commodity; they can be part of the countermovement, in other words. The creation of labour rights in order to address the commodification of labour goes hand in hand with the notion of dignity.³⁹ Labour as a fictive commodity associated with human beings calls for the protection of the latter’s dignity. This connection between labour rights and dignity also exists in the EU context, apparent by Article 1 CFREU laying down the right to dignity, coupled with dignity’s mention in the right to fair and just working conditions under Article 31 CFREU.⁴⁰ That is not enough though, in terms of ensuring that labour rights are effective against commodifying market tendencies.

Although there are different viewpoints on the question of labour rights as human rights, labour law scholarship tends to acknowledge that at least some labour rights should be conceptualised as human rights.⁴¹ The extent of labour rights’ protection varies, with some offering higher levels than others.⁴² No matter the degree of protection offered, their existence is crucial in addressing the commodification of labour, as their ambit could go beyond that offered by other forms of regulation that are tied to the standard employment relationship.⁴³ Labour rights, and social rights more broadly, can achieve the decommodification of labour ‘through the existence of a social safety net and labour standards that ameliorate the harshness of the market’.⁴⁴

More contested points in the desirability of labour protection and its associated decommodification through rights are the reliance on litigation, which can end up being unsuccessful, as well as their alleged structural limitations for more encompassing or widespread protection when conceptualised as human rights.⁴⁵ At first glance, this may pose problems when identifying to what extent labour rights have been entrenched in the commodification of labour. Yet, failure to adequately enforce and protect these rights is not because they are inherently problematic, but because the system that framed them in the particular way in which they are enshrined in law failed to ensure their effectiveness.⁴⁶ Given the systemic influence of the market, it is likely that the particular legal manifestations of these rights is a sign of them being considered as part of the commodification process. Their practical application and interpretation are important to consider as well.

What has been said about labour law as part of the commodification process in the context of the free market could be replicated in regard to labour rights.⁴⁷ Their focus nowadays should move, too, beyond the employment relationship stricto sensu, to broader principles and goals, which help address the contemporary realities of commodified labour.⁴⁸ This is also true for labour law and rights in international and/or supranational settings like the EU. It means that labour rights that aim to genuinely decommodify labour are not unachievable, but a matter of market, policy and political ideology, orientation and principles, as well as of any related power relations.⁴⁹ It also means that labour rights can also end up being instrumental in maintaining the commodification of labour. Although protections may exist, labour’s status as a commodity is likely to remain.⁵⁰ This points to the transactional character of labour provisions, be it in the form of rights or not, which is reflected in the bilateral obligations of the parties to the employment relationship, whose main manifestation is the contract of employment.⁵¹ In turn, this means that labour rights serve to (de)commodify labour up to a point. Contractual terms or other applicable legal rules would continue the commodification process, with or without labour rights’ contribution.⁵² Legal coding can take different forms after all. The main question, then, becomes whether labour rights primarily decommodify or (re)commodify labour. Are they a genuine countermovement or an instrumental component of the market’s legal coding?

Drawing on the above, what are the characteristics of labour rights as parts of the commodification process? They cannot be the product of market trade as such, but they can facilitate the functioning of the market, perpetuating the commodification of labour. In other words, they can become commodifying tools. In that sense, labour rights are subordinate to economic rights and freedoms and only operate to the extent they are allowed to do so by the market. The path-dependence of market thinking and prevailing ideologies have provided them with a weak normative position, which is also reflected in their design. It is not only that their operation depends on the outcome of judicial deliberations, but that their justiciability is weak to begin with, or at the very least their effectiveness is compromised. Accordingly, they fail to adequately protect society as a countermovement would and, instead, allow market reasoning to prevail in the regulation of labour.

Similar to marketing campaigns, labour rights that primarily serve the commodification of labour can be presented as a sign of progress, whereas, in fact, they entail an uphill struggle for someone to be able to benefit from their existence, with no substantive gains for workers in practice. Even constitutionalising labour rights at the domestic level may not be enough to alter their commodified state.⁵³ Instead, leaving the markets to directly or indirectly define the protection afforded by them confirms the socio-political, legal and economic reality of most capitalist economies, wherein labour rights may exist, but are only allocated a perfunctory role of maintaining the status of labour as a commodity.⁵⁴ In this context, labour rights perform only a peripheral market-correcting function, which is moreover dependent on the type of work performed and/or the resources in place to pursuit it.

3. COMMODIFYING LABOUR RIGHTS IN THE CHARTER

After setting out how labour rights can be conceptualised as part of the commodification process, this section focuses on assessing the protection afforded by the labour rights laid down in the Charter in light of the analytical framework of this article. By doing so, it brings together in a systematic manner the long-standing critiques about the deficient protection of labour rights in the Charter. That way, it showcases how, taken together, all these critiques contribute to a view of the Charter as having followed a trajectory that is rooted in a commodified vision for labour rights and labour power for the EU. The key issues that relate to that thesis are the problematic justiciability of labour rights, their limited scope and direct effect, their perceived subordination against economic considerations, the path-dependence of the social dimension of the EU and the missed opportunities to elevate the labour rights in the Charter through the case-law of the Court or by using them as a blueprint in law and policy-making. These will be discussed in turn.

A. Justiciability: Rights or Principles?

The high costs associated with the implementation of social rights, which include labour rights, may also explain how the issue of their justiciability is a sign of their commodification.⁵⁵ It is a clear manifestation of how legal coding supports the commodification of labour. By making enforcement difficult, there is a smaller risk for employers or the Member States of having to incur compliance costs following successful enforcement through litigation. In turn, keeping costs low can be a sign of trying to maintain a competitive labour market in a free market sense, where labour power can be traded with minimal restrictions, including from costly adherence to stringent standards of protection.

The issue of the justiciability of social rights is well-documented. However, in quite a few jurisdictions labour rights tend to be judicially enforceable, at least to some extent.⁵⁶ How extensive or successful the justiciability of social rights is depends on a number of factors ranging from social organisation to the degree of political advancement of social rights and their judicialisation.⁵⁷ According to Langford though, above all comes the issue of culture, which encapsulates how ‘rights are understood, valued and embedded within a particular society’.⁵⁸ For the purposes of this article, the concept of culture can also assimilate the notion of ideology, alongside socio-economic development, the power relations among key stakeholders, as well as the changing constitutional and policy objectives, aspirations and priorities,⁵⁹ showcasing how the latter can influence the extent of labour rights’ justiciability, despite them being, in general, more widely accepted as justiciable compared to other social rights.

Drawing on the above, a reason behind the pro-commodification approach to labour rights in the Charter is the lack of clarity about their justiciability. Labour and social rights in the Charter tend to be worded differently to political and civil rights, and even when they are laid down as positive obligations, this follows a qualified wording. Fredman gives the example of Article 28 CFREU, which enshrines the right of collective bargaining and action, but qualifies that it is ‘in accordance with Union law and national laws and practice’.⁶⁰ The qualification stems from the drafting process of the Charter, and the difficulties in agreeing the scope of social rights’ protection therein, with the UK and Denmark having reservations about their inclusion.⁶¹ It has led to problems regarding the effective protection of labour rights, such as that of Article 28 CFREU, when pitted against economic freedoms, which will be discussed later on in this article, originating in the Laval Quartet.⁶² Ensuring effective protection of labour rights is crucial, for them to act as countermovements in a Polanyian sense, protecting society from a self-regulating free market.

The afore-mentioned disagreements during the Charter’s drafting led to Article 52(5) CFREU and the distinction between rights, which are justiciable, and principles, which have limited justiciability.⁶³ This provision has been particularly problematic to apply, as there is no clear delineation between the rights and principles within the Charter, apart from its explanatory notes and the subsequent case-law of the CJEU. For example, Articles 25 (the rights of the elderly) and 26 (integration of persons with disabilities) CFREU contain principles,⁶⁴ Article 23 CFREU on equality between men and women contains a mixture of elements from both rights and principles,⁶⁵ while Articles 21 (non-discrimination) and 31 (fair and just working conditions) CFREU have been acknowledged by the Court as rights.⁶⁶ Provisions that include the word 'rights', might in fact refer to principles⁶⁷ and 'important principles' in CJEU judgments may as well constitute justiciable rights.⁶⁸ In an era where collective institutions supporting workers are being weakened, individual enforcement becomes crucial, and being able to rely on protective rights is important for workers; enjoying rights and setting limits to the employers was part of the employment bargain after all.⁶⁹ Not being able to do so clearly undermines any protections embedded in an important declaratory legal document of constitutional standing, such as the Charter.

Although, as said, the intention of some Member States during the Charter negotiations was to limit the effect and justiciability of social rights in the Charter, the above shows that in practice there is no blanket limitation.⁷⁰ The lack of clarity regarding the justiciability of rights, and the extent of the limited justiciability of principles though creates problems and fuels the notion of social and labour rights in the Charter as maintaining the status of labour as a commodity. Litigation is required to check whether a Charter labour right is justiciable, making the enforceability of that right the object of contestation. This legal contestation could be described as almost transactional, resembling a locus of commodity bargaining. Moreover, the determination of that enforceability is the outcome of judicial deliberations, following a very costly process for most potential litigants, who, traditionally in this strand of case-law, tend to belong to what Galanter coined as ‘have-nots’.⁷¹ Simply put, whether a labour right from the Charter can be pleaded before a court or otherwise enforced becomes an ad hoc issue, partly dependant on the resources and capital of those wishing to rely on it, more so than if it was unequivocally enshrined as justiciable or enforceable in the Charter’s provisions.

With the exception of Article 31 CFREU and in particular its second paragraph on the right to paid annual leave, the justiciability of other labour rights in the Charter has indeed been proved problematic. Starting with the rights and principles distinction, the Court has implicitly relied on it to deny the justiciability of Article 27 CFREU on the right to information and consultation in AMS.⁷² Although the case is often discussed to highlight the lack of horizontal direct effect of Charter provisions, the Court’s ‘confusing’ reasoning seems alarming for the position of Article 27 CFREU.⁷³ Juxtaposing AMS with Kücükdeveci, the Court noted that unlike non-discrimination laid down in Article 21(1) CFREU, Article 27 CFREU is not sufficient in itself to confer justiciable rights on individuals.⁷⁴ Although not explicit or clear, the Court’s language in AMS drew parallels with the notion of principles under Article 52(5) CFREU.

Interestingly, the Advocate General in his Opinion found Article 27 CFREU to be a principle but concluded that given the circumstances it is a justiciable one.⁷⁵ He also suggested that all rights in the Solidarity Title of the Charter were principles too.⁷⁶ His position might have been more helpful, but no less problematic, at least from a normative point of view,⁷⁷ given the demotion of all labour rights in the Solidarity Title to principles, which have limited justiciability in principle, despite no clear indication of that if one looks at their wording.

The whole case showcases that even after exhausting considerable resources to pursue a claim, there is no guarantee of success, even when having an Article with a ‘most right-looking content’.⁷⁸ Furthermore, it reinforces arguments by labour lawyers who are wary of leaving enforcement of labour rights provisions to the judiciary. The situation is exacerbated if one considers the critiques of the CJEU as a neoliberal actor in certain disputes involving labour rights and economic freedoms.⁷⁹ It is worth noting that due to its similarities with Article 27 CFREU, there is a fear that the Court may follow the same approach in relation to Article 28 CFREU and frame it as a principle, although most commentators conclude that it should be considered as a right.⁸⁰ The Advocate General in AGETIraklis also thought that Article 30 CFREU is a principle, although there has not been any judgment of the Court on the matter yet.⁸¹

The justiciability of most labour rights in the Charter, as set out above, becomes part of a fictitious market, that of the Court’s judicial arena, a legal field, wherein the power relations among the actors involved would determine the outcome.⁸² By relying so extensively on adjudication simply for figuring out the nature of labour rights as rights, the Charter’s framing of labour rights cannot help but render the latter part of the commodification process. Their effectiveness depends on the outcome of judicial transactions, which, in turn, is dependent on the capital accumulation of the parties involved.⁸³ Not only that, but it represents a cognitive dissonance of sorts. Even though labour rights use the rights language, and appear as rights, we can never be sure that they in fact are justiciable rights. Labour rights are thus touted as being protected and elevated to rights in the Charter, but this might not have the intended effect in practice, transforming labour rights to commodifying marketing tools.

B. Limited Scope and Direct Effect

There are two additional problems stemming from the ambivalent nature of labour rights in the Charter, showcasing how legal coding of even ostensibly decommodifying provisions may end up serving market interests, even if indirectly. In particular, the often-qualified wording of these rights in the Charter has led to further issues affecting their effectiveness. Articles 28 CFREU on the right of collective bargaining and action and 30 CFREU on the protection in the event of unjustified dismissal both include the following wording which limits their scope: ‘in accordance with Union law and national laws and practices’.⁸⁴ Moreover, Article 27 CFREU on the right to information and consultation qualifies its scope by stating that it applies ‘in the cases and under the conditions provided for by Union law and national laws and practices’.

The afore-mentioned provisos create additional limitations to the scope of labour rights, going beyond the general requirements under Article 51(1) CFREU and directly impacting their enforceability as a result.⁸⁵ For example, in the majority of cases that made reference to Article 30 CFREU, the Court declared that it had no jurisdiction due to the matter falling outside the scope of EU law.⁸⁶ Indeed, looking at this line of case-law it appears that the Article’s proviso amplifies the level of scrutiny regarding the material scope of the case under Article 51(1) CFREU. At the same time, it showcases the unwillingness of, or at the very least the difficulties posed by this arrangement for, the Court to act as a human rights adjudicator.⁸⁷

The limited understanding of their material scope has been observed in relation to other labour rights, such as those in Articles 27, 28 and 33(2) CFREU.⁸⁸ More recently, restrictive interpretations based on a stringent application of Article 51(1) CFREU have cropped up in relation to well-established and protected labour rights such as that of paid annual leave under Article 31(2) CFREU and which do not contain a proviso in their wording.⁸⁹ This is a worrying sign pointing at a volatile approach by the Court, that does not necessarily require a labour right to possess the afore-mentioned provisos in its wording for a more stringent interpretation of its scope to kick in. It is also dissimilar to the approach the Court has taken to economic freedoms, such as the freedom to conduct a business under Article 16 CFREU,⁹⁰ despite containing a similar proviso of being ‘in accordance with Union law and national laws and practices’.⁹¹ The Charter architecture with the qualified scope of labour rights has certainly played a part in what the Court can do, notwithstanding the diverse viewpoints on the Court’s autonomous contribution to commodification through its framing of labour rights, which remain somewhat powerless axiomatic proclamations with limited impact in practice.

Linked to justiciability and scope is the issue of direct effect. According to Barnard, the Advocate General in AMS implied that the conditions for direct effect may as well be used as the test to determine whether a labour right is a right or principle.⁹² Although such an approach would provide clarity, the fact remains that it is arbitrary given the lack of guidance on the matter in the text of the Charter and its explanations. Moreover, although the practical implication of direct effect is almost synonymous to justiciability, pegging the enforceability of labour rights on additional criteria would be another sign of their moot power in the context of the Charter. Be it as it may, labour rights that are likely to be treated as principles are also unlikely to have a direct effect whatsoever, as AMS showed.

AMS had also been criticised in relation to its rejection of horizontal direct effect for Charter rights.⁹³ There might be other mechanisms in place to try and enforce labour rights between private parties, such as indirect effect or state liability, but the fact remains that the lack of horizontal direct effect further hampers the effectiveness of labour rights in the Charter. They might be invokable against the state, but it makes it harder to enforce them against private employers. In turn, this gives the latter more leeway in how they can more optimally harness the commodified nature of the workforce’s labour power.

At this stage, it is worth mentioning the positive change following Egenberger and IR, the first cases that declared the possibility for a Charter (social) right to have a horizontal direct effect, referring to non-discrimination under Article 21 CFREU.⁹⁴ These two cases laid the groundwork for the notable judgment in Bauer, wherein the Court alluded that a labour right from the Solidarity title, Article 31(2) CFREU on the right to paid annual leave, could be enforced in horizontal situations.⁹⁵

Taking a closer look at the ruling, AMS is not reversed, but merely distinguished. This means that labour rights that contain a proviso remain without horizontal direct effect since they are not unconditional.⁹⁶ Looking at the solidarity chapter, this would mean that collective labour rights like those enshrined in Articles 27 and 28 CFREU are excluded. Given the centrality of collective labour law to the decommodification of labour, the Court’s stance pushes a pro-commodification approach to the framing of labour rights in the Charter, especially if one considers the generous interpretations of Article 16 CFREU.⁹⁷ In sum, there is no consistent approach. Its justification in Bauer notwithstanding, the Court had in the past found that Charter provisions containing social rights like Article 26 CFREU, did not have a direct effect (not even vertical), even though their wording does not include any such qualifications.⁹⁸

A final point regarding the scope and enforceability of the Charter’s labour rights, which is unrelated to the rights/principles dichotomy or the qualified wording of some provisions, is the reference to the term ‘worker’. That term enjoys an autonomous meaning within EU social and labour law, but there have been instances of restrictive interpretation, either due to reliance on national norms or on the notion of subordination that tends to exclude the self-employed and atypical forms of work.⁹⁹ Given the reference to other international labour rights instruments in the explanatory notes to Articles 28 and 31 CFREU, it has been argued that a most expansive interpretation of the term ‘worker’ should take place, going beyond the status quo.¹⁰⁰ The fact that there is no landmark case dealing with this issue in the precise context of the Charter signals the difficulties for the most precarious of workers to initiate litigation, but also the perceptions around the role of the Charter in affirming workers’ rights. In other words, the Charter is seen as being there for those in traditional forms of work, unable to reach an ever-increasing precariat and dashing any hope for using a rights-based approach to extend labour’s protection from commodification.

C. Subordination, Path-Dependence and Missed Opportunities

Perhaps the most obvious example of the commodifying approach to labour is when labour rights in the Charter are pitted against economic freedoms. Although the Charter and its rights were not legally binding back in 2007 when the (in)famous Laval Quartet was decided, the latter’s legacy continues to hold strong. In the labour rights vs economic freedoms debate, path-dependence seems to lead the way. Path-dependence, here, implies that the exercise of labour rights is subordinate to economic freedoms, even when enshrined in the Charter and even if both are set out in a qualified way, subject to EU law or national law and practice.¹⁰¹ Labour power is protected, but to the extent that it does not negatively impact the operation of the market. The Court’s approach has been viewed as a disembedding process that subjects previously emancipated labour provisions to the demands of the free market.¹⁰²

What exactly does this subordination entail? Aside from the 'fundamentally flawed' reasoning of the Court in the Laval Quartet, which put collective action and domestic labour laws under threat,¹⁰³ subsequent case-law has in a way proliferated this approach to the now-legally binding Charter. In Commission v Germany the Court posited the nature of Article 28 CFREU as a fundamental right, only to then assert, similar to the Laval Quartet, its relative power, especially when pitted against economic considerations.¹⁰⁴ Labour rights and other social considerations are examined on the basis of their economic counterparts allowing for their accommodation, but not vice-versa.¹⁰⁵ This is a telling sign of an unequal relationship, which is based on the premises of the market dictating the extent of decommodification and protection under labour rights.

The ordoliberal path-dependence of prioritising market-based freedoms was also apparent in Alemo-Herron.¹⁰⁶ In that case the CJEU seemed to elevate a seemingly weak and qualifiedly worded Charter right, the freedom to conduct a business under Article 16 CFREU, to a fundamental right, in order to override more protective rules than the minimum standards offered by Directive 2001/23/EC on employees’ rights in situations of transfer of undertakings. Instead of protecting the weaker party, the Court centred its reasoning on the protection of the employers’ interests, shaping in that direction labour market regulation in the EU.¹⁰⁷ Doing so, Bartl and Leone argue, the Court pushed a particular agenda about how the market should look like.¹⁰⁸ This agenda seems to pinpoint to a continuation of labour power being framed as a fictive commodity, tolerated insofar as it does not impinge on the employers’ interests. Adherence to labour rights is allocated a minimum role in that regard, unable to counterweight employer or broader market interests.

Going back to path-dependence, Robin-Olivier has contrasted the accommodating stance of the Court towards economic freedoms, consistently showing its willingness to grant them direct effect, to its strict approach to the direct effect of labour rights, such as that of Article 27 CFREU in AMS.¹⁰⁹ It is as if there were double standards in place, hinting back at the ordoliberal origins of the European project that continue to influence the adjudication and development of EU labour law.

This unequal development, or fundamental asymmetry,¹¹⁰ was apparent in AGETIraklis, despite the more conciliatory approach of the Court.¹¹¹ Again, Article 16 CFREU took centre stage, at the expense of Article 27 CFREU or, the even more relevant for the case, Article 30 CFREU, with which the Court did not engage substantially.¹¹² Although the qualified framing of Article 16 CFREU was acknowledged, the afore-mentioned labour rights in the Charter did not act as social safeguards for its operation in the context of the EU internal market.¹¹³ This outcome reaffirms the secondary nature of labour rights in and against the internal market, reflecting the Court’s viewpoint on how the latter should operate. Labour rights can be conditioned by market freedoms, but cannot condition those in turn. In fact, Giubboni argues, the constitutionalised declaratory protection of economic freedoms, such as that of Article 16 CFREU, alongside that of labour rights in the Charter has exacerbated the fundamental asymmetry.¹¹⁴ Labour rights cannot act as countermovements, their autonomy and protective potential constrained by (re)constitutionalised market forces.

The final related issue is that of missed opportunities,¹¹⁵ instances where the Court either does not (meaningfully) engage with the labour rights in the Charter or fails to elevate them. One such example already mentioned was AGETIraklis in relation to Articles 27 and 30 CFREU. In FNVKunsten the Court was unwilling to undertake a reading of Article 28 CFREU that allowed for collective agreements of self-employed professionals to be excluded from EU competition rules, despite such an interpretation being possible.¹¹⁶

It is worth noting that missed opportunities do not necessarily occur only in situations of conflict between labour rights and market freedoms. They are more widespread. For example, when the Court finds no direct link between a case and EU law, even though there might be one,¹¹⁷ the gap-filling role of labour rights in the Charter, including their decommodifying potential, goes amiss.¹¹⁸ Interestingly, the Court is more willing to engage constructively with the hierarchically inferior social provisions found in Directives, than the labour rights in the Charter.¹¹⁹

In EPSU, the European Social Dialogue was shattered.¹²⁰ The judgment concerned an appeal to an unsuccessful challenge before the General Court of the Commission’s refusal to submit a proposal to the Council to implement at the EU level an agreement between social partners in central government administrations. The CJEU sided with the Commission, neglecting the role the right of collective bargaining (Article 28 CFREU), and to a lesser extent, the right to information and consultation (Article 27 CFREU) could play in the process, despite their obvious relevance.¹²¹ It confirmed the constrained position of these rights, only operable to ensure the functioning of the market and in this specific example, to show that there is room for collective bargaining, but not for its related rights to truly act as countermovements. The Commission can act at will, over-riding or disregarding the wishes of social partners, despite them being ostensibly protected by the Charter.

The case represents another sign of the problematic approach to collective labour rights, and, mutatis mutandis, to their role in addressing the issue of labour as a fictive commodity. Taking stock of the adjudication of the Charter’s collective labour rights, similarities emerge with the way anticompetitive behaviours by guilds were thwarted through state intervention in the past.¹²² Insofar as the Charter is concerned, state-like intervention, through the rights’ drafting but also their judicial interpretation, appears to constrain their protective scope in favour of free and competitive markets. Even when, like in the case of the Laval Quartet, the propounded approach results in angst, the free market’s discursive and policy monopoly prevents any structural change from materialising.¹²³ Indeed, the revised Posted Workers Directive, itself a result of countermovements, represents a step towards decommodification, but not a transformative one.¹²⁴ Notably, neither the revised Directive nor the associated failed annulment actions before the Court,¹²⁵ make explicit reference to the Charter.¹²⁶

More broadly, the meagre impact of the Charter on EU labour law-making is another manifestation of a missed opportunity. Although the most obvious indications of the EU’s approach to labour rights in the Charter have been through their drafting history and subsequent litigation before the Court, it is worth briefly tapping on their wider impact, if any. A few years before the adoption of the Charter, Weiss called for a cumulative approach to fundamental (social) rights’ protection; rights should not only act as the basis for reviewing EU action, but also as drivers of EU policy-making, and principles or values, that Member States shall abide by.¹²⁷

Some of the issues discussed in the previous sub-sections showcase that this cumulative effect was not achieved. It was cautioned that formulating labour rights as declarations carries the risk of failing to follow those declarations through with concrete measures, such as decommodifying labour laws.¹²⁸ Looking at the EU’s managing of the 2008 global economic and financial crisis, studies have pointed out the commodifying effects of its labour policy interventions in a number of Member States,¹²⁹ despite the Charter having acquired binding force during that time. More recently, the fact that the lion’s share of the labour and social rights in the Charter had to be re-packaged and re-marketed as part of the European Pillar of Social Rights to lead to a number of legislative initiatives is telling of the Charter’s limited impact in instigating policy change on its own. Taken together, the successive re-packaging of labour rights in declaratory instruments can be a sign of failure to take stock of workers’ interests when regulating the market and economic governance more broadly.¹³⁰

4. A CULTURE OF COMMODIFICATION

After setting out the various approaches that contribute to the commodification of labour rights in the Charter, this section discusses the reasons why such approaches seem to be the norm. Earlier in the article, the concept of culture was touched on. Culture is important, as it reflects how rights operate in a given context; it defines their power, scope and embeddedness. In that regard, culture constitutes the ‘deeper keel that aids or obstructs attempts to introduce social rights within human rights practice’.¹³¹ In other words, culture underpins the inclusion and shapes the content of labour rights (as an integral part of social rights) in human rights documents, such as the Charter, as well as their operation in this context. Culture is not static, yet the historical apparatus of long-standing narratives surrounding a jurisdiction’s constitutional priorities (i.e., civil/political freedoms vs overcoming social injustice) is key in defining the protection afforded by labour rights.¹³²

When talking about culture, and specifically in relation to its contribution to the adoption, scope and embeddedness of labour rights, it is important to identify some additional tenets of the term, going beyond constitutional priorities in order to better reflect its interplay with the regulation of labour. Drawing on his reflections from a comparative study of the development of labour laws across Europe, Hepple identified a range of influential factors: ‘economic and social development, the changing nature of the state, the character of employers’ and labour movements, and ideology’.¹³³ These factors, adjusted to take stock of the EU playing field, can also provide explanations behind the prevailing culture that affects labour rights in the Charter. The EU’s socio-economic development, the competing interests of the various stakeholders, the changing constitutional and policy objectives, aspirations and priorities of and for the Union, as well as their underpinning ideologies, have all influenced its approach to labour rights; its labour rights culture, in other words.

Based on the preceding analysis, in the EU context, labour rights exist in an overarching culture of commodification, which hampers their operation, limiting their protection and amplifying labour as a fictive commodity mantra. That culture of commodification is the outcome of a number of processes and events associated with the Charter’s development, but also that of European integration more broadly.

The most obvious reason behind the existence of a culture of commodification insofar as labour rights' protection is concerned is the ordoliberal origins of the EU. These origins prioritised measures on the economic function of the (internal) market, with social progress remaining unregulated and becoming dependent on the economic function.¹³⁴ Aside from the marginal role of social regulation, including through very limited labour law-making, ordoliberalism also aims to protect the market from external pressures, including those by trade unions.¹³⁵ The EU’s ordoliberal origins assisted the continued commodification of labour in two ways. Firstly, enshrining labour rights, especially at the constitutional level, was not seen as a priority. Secondly, the role of trade unions and collective bargaining was to be limited in order not to impede the function of the market.

The constitutional architecture of the EU had prompted calls for enforceable and entrenched labour rights before the enactment of the Charter.¹³⁶ The fact that a list of labour rights was eventually included in the latter is a breakthrough, but, alas, mostly a symbolic one. The functioning of the internal market is still not constitutionally conditioned to labour rights in the Charter, as shown in the discussion above.¹³⁷ Moreover, the missed opportunities touched on earlier manifest that the labour rights in the Charter are fundamental all but in the name. How can the commodification of labour be addressed, when it is difficult for the pertinent institutions to engage in depth with Charter rights in the first place? The situation is further exacerbated by the fact that their legal nature is unclear, gravitating between rights and principles, resulting in an ad hoc, if not arbitrary, approach to their justiciability. Even when declared as a fundamental right, labour rights may still be incapable of having direct effect.¹³⁸ These rights appear as enhancing worker protection, but their fragmented nature and problematic application ensure the preservation of the free market.¹³⁹

Collective bargaining traditionally enjoys a prominent place as a tool to tackle the commodification of labour. Labour law alone, including the actors involved in its inception, application and interpretation, was not considered enough to ensure that workers’ interests were adequately protected, with collective bargaining ensuring both worker voices in decision-making and effective enforcement.¹⁴⁰ Collective bargaining and trade unions are also potential hurdles to the functioning of the market according to ordoliberalism. Considering the CJEU’s cautious, and at times undermining, approach to the collective labour rights in the Charter (Articles 27 and 28 CFREU), their moot and perhaps even muted power has detrimental effects if the commodification of labour is to be addressed through collective action.

Labour rights operating as rights, and not almost always as qualified norms, are key for worker protection in the wake of labour as a fictive commodity. Dukes and Streeck talk about a re-imagined freedom of association, for example, extended to the self-employed.¹⁴¹ In the context of the Charter though it was shown how such collective labour rights are not reimagined, but constrained, in terms of their material and personal scope, applicability and enforcement. Although more evident in relation to collective labour rights, commentators have observed that economic freedoms are superimposed to both collective and individual employment relations following the Laval Quartet, albeit with some reconciliatory developments more recently.¹⁴² Looking at those developments more closely though, it becomes obvious that a clear strategy to affirm the effects of labour rights in the Charter as such is still lacking. Labour law, both collective and individual, in place to protect workers from the commodification of their labour power by the markets, is set aside or relativised whenever it conflicts with the latter. This is a true sign of a culture of commodification, and of labour laws and rights ending up becoming a tool to advance it.

To shelter the market from any negative pressure by the labour rights in the Charter, their existence in other international instruments is not utilised by the Court in a way that amplifies their power, despite some of them being mentioned in the explanatory notes of the Charter.¹⁴³ For example, the ILO’s international labour standards are not often found in and have had limited impact on the labour rights’ jurisprudence of the CJEU.¹⁴⁴ Moreover, adherence to an approach similar to that of the European Court of Human Rights in DemirandBayakara¹⁴⁵ and which was decided following the Laval Quartet, might have led to a fairer balancing of labour rights and economic freedoms.¹⁴⁶ Yet, the Court does not frequently reference relevant case-law from its international counterparts.¹⁴⁷ Labour rights in the Charter tend to fare better if there has been positive engagement with those in the past; for instance, as general principles of EU law. A good example is the mostly positive approach to Article 31(2) CFREU and the right to paid annual leave. Nevertheless, recent case-law such as TSN has raised concerns that by declaring a labour right not applicable in a case, then its decommodifying effects are weakened.

The culture of commodification appears rooted in the ordoliberal origins of the EU. Ordoliberalism in the EU nowadays may be ‘more the outcome of compromise than ideology’,¹⁴⁸ but its legacy can have a lingering impact on how more recent policies are modelled.¹⁴⁹ For commodification to become part of the EU’s culture, it means that it must be shared by some of its institutions and the actors and stakeholders comprising them. It was mentioned above that during the Charter negotiations, certain Member States were wary of protecting social and labour rights. Lord Goldsmith highlighted the importance of balancing rights against, ‘in particular, economic freedoms and enterprise’.¹⁵⁰ Was this a precursor of the Laval Quartet and its aftermath? It certainly contributed to the unclear drafting of the Charter, the haphazard list of social and labour rights therein and the Delphic distinction between rights and principles.¹⁵¹

The Court has often been portrayed as the main culprit of the status quo and constrained power of labour rights in the Charter.¹⁵² Its inconsistent, ‘pick and mix’ approach to those rights has been subject to criticism.¹⁵³ Previous sections discussed the contribution of its judgments to the culture of commodification that affects labour rights in the Charter. However, it should be noted that the Court is often the mouthpiece, its judicial decision-making capacity limited by its institutional architecture. As a prominent legal actor in the EU context, the Court is not immune from the impact of legal coding in the adjudication of the pertinent laws,¹⁵⁴ and it has been argued that the outcome of its deliberations is the result of internal and external power struggles.¹⁵⁵ It seems that it is difficult for its approach to change, although some recent judgments might signal a slightly more positive trajectory. Relatedly, it has been put forward that a more radical approach is needed to tackle human rights’ issues adequately and amplify the impact of the Court's case-law.¹⁵⁶ This approach includes paying due regard to other international courts.

Overall though, taking stock of earlier discussions, the mépris toward labour rights in the Charter cannot be isolated in certain strands of the Court’s case-law. Instead, it appears to be a systemic issue, from the origins of the EU to the contrasting interests in the Charter negotiations, to the strong path-dependence of the internal market and its freedoms. As this article argues, the commodification process that labour rights in the Charter appear to serve is part of a culture, which implies a particular approach to labour rights that is widely diffused and as such shared among (most of) the EU institutions. Let us not forget that the recent EPSU case was brought against the Commission, whose views have been described as pushing ‘an anti-model of social dialogue as a process of mere consultations led by the Commission’.¹⁵⁷ Last but not least, there could be market forces and actors that exert informal pressure on some of the institutions, contributing to that culture of commodification.

There has been a flurry of activity in labour law matters recently. From platform work, to pay transparency and adequate minimum wages, legislative initiatives are underway at the EU level, at different stages of progress and not without contestation.¹⁵⁸ Most of these activities are part of the action plan for the European Pillar of Social Rights. It is the latest attempt to reinforce the social side of European integration, making up for earlier, ill-fated, initiatives.¹⁵⁹ The notion of ‘social rights’ is ingrained in the language of the Pillar. The action plan explicitly talks about strengthening the social dimension and enhancing social rights.¹⁶⁰ Among them, the Pillar includes a number of labour rights, especially in Chapter I on equal opportunities and access to the labour market and Chapter II on fair working conditions. Some of them have been inspired by general principles and important doctrines of EU social and labour law, but also paraphrase rights already existing in the Charter.¹⁶¹

The Pillar seems to have built momentum around the use of rights-based language to justify potentially decommodifying measures. However, the culture of commodification in the EU is likely to present obstacles for the realisation of the Pillar’s ambitions, which would mean that labour rights in the Charter could continue serving the commodification of labour. On the one hand, the emphasis of rights-based language to trigger further commitments to the social acquis is positive, although it is worth noting the Pillar’s non-binding and, hence, non-justiciable status. On the other hand, there seems to be no substantial interaction between the Pillar’s rights and those of the Charter, which is yet another sign of the latter’s side-lined role. Indeed, as said earlier, the fact that the Pillar needed to repeat in one way or another some of the labour rights in the Charter is a sign of the latter’s limited impact in introducing countermovements to the commodification of labour.

The culture of commodification has also seemed to affect some of the Directives heralded as part of the Pillar. For example, the Work-Life Balance Directive is unlikely to cover most workers in atypical forms of employment.¹⁶² The Minimum Wage Directive, while seemingly having a primarily decommodifying scope to ensure decent living standards for workers, at its core appears more concerned with regulating competition by setting the minimum price of a commodity.¹⁶³ The tremulous journey of the Platform Work Directive also resulted in a watering down of the employment status presumption, which was meant to be its cornerstone.¹⁶⁴ The latter is also a perfect example of how legal coding and different competing interests in the legal arena can end up protecting market interests, resulting in weak forms of ostensibly decommodifying intervention. More broadly, there is an going concern whether, after a deep wave of commodification centred around the EU’s economic governance during the 2008 crisis, substantive decommodification can be achieved through some not wholly transformative measures.

5. CONCLUSION

The article discussed how labour rights in the Charter end up being part of the commodification process of labour power in the EU, facilitating the functioning of the market. Despite the hyped higher status of the Charter following the Treaty of Lisbon, the inclusion of labour rights in its provisions did not have a transformative impact in practice. Instead, the Charter introduced the problematic distinction between rights and principles, without a clear answer as to which category labour rights belong to. In turn, this creates problems with their justiciability, which are further compounded by the limitations imposed or construed regarding their scope and direct effect. Added to these problems is the subordination of labour rights when confronted with market freedoms of an economic nature, which exhibits a path-dependence of commodifying ideologies that assign rights a secondary role, resulting in instances of missed opportunities.

With the Charter’s potential unexploited, its labour rights remain constrained to market demands, maintaining the status of labour as a commodity and becoming tools of labour commodification, serving the market and adjusting their ambit accordingly. The Charter’s negotiations, drafting and subsequent application and interpretation were undertaken in the context of a culture of commodification, inspired by the EU’s ordoliberal origins. The anaemic development of the social dimension and the novelty of constitutionalising labour rights, at least in name, were not enough to overcome the fundamental asymmetry of European integration.¹⁶⁵

Labour rights in the Charter are fragmented and difficult to enforce at times. In particular, rights pertaining to collective labour law, essential to achieve the decommodification of labour, are often qualified, if not undermined, with a string of case-law that is mostly concerned with limiting any potential impact they might have. Labour rights may be omitted from the discussion, despite their inclusion in the Charter and so might references to international sources and fora that have propounded a less commodifying approach. A culture of commodification has infiltrated most EU institutions, in turn, showcasing the far-reaching influence and ever-dominant position of the market.

It is no surprise that such a culture of commodification has led to the labour rights in the Charter being framed as part of the commodification process, from how they are laid down in law to how they are being interpreted and applied. Their constitutionalisation through the elevated status of the Charter failed to constitutionally condition the market to their protective scope and decommodifying potential. It would require strong commitment—akin to recalibrating the prevailing norms, ideology and culture—for the European Pillar of Social Rights and its initiatives to finally help propel the decommodifying potential of labour rights.¹⁶⁶ If successful, this may achieve the mainstreaming of the values labour rights encapsulate, as it was originally hoped the Charter would do.¹⁶⁷

Footnotes

Author notes