From Internal Market Regulation to European Labour Law

The researcher of the project, ML Jari Hellsten, presented the results in the doctoral dissertation that he defended on 14 December 2007 (https://oa.doria.fi/handle/10024/29178?locale=len). They comprise four articles which have as a leading theme the relationship between the economic and social factors in EU labour law. The first one, headed “On Social and Economic Factors in the Developing European Labour Law”, discusses EU directives on collective redundancies and transfer of undertakings. The author also criticizes the theory of converse pyramids, according to which the social factors would be generally subordinated to economic factors in EU law. The second article, “On the Social Dimension in Posting of Workers”, discusses the Posted Workers Directive (96/71) and highlights how it applies within the legal framework set up by the EC Treaty, which also means that a proportionality assessment is applicable to the workers’ rights under the directive. In the context of the Laval case the author concludes that the ILO obligations of the EU Member States form a valid legal basis for such action in EU law, too, which is based on a combined effect of Article 307(1) EC and general international law. The third article, “On the Social Dimension in the Context of EC Competition Law”, deals with the interpretation of the relationship between collective labour agreements and competition rules on the basis of the Albany judgment. The immunity of collective labour agreements set up in that judgment is fundamental. The author concludes regarding Article 86(2) EC that it may also cover particular social tasks of general interest. At social security systems this may mean that, as the AOK Bundeskassen judgment shows, certain competition elements included in such systems do not necessarily lead to the application of competition rules. Accordingly, in the Finnish Earnings-Relates Pension Scheme TEL certain inherent restrictions of competition should be regarded as justified under Article 86(2) EC. In the fourth article, “From Internal Market Regulation to ordre communautaire social”, the author develops a proposal for a new collective labour law paradigm in the EU. It would comprise the leading premises and principles of EU and international labour law: “labour is not a commodity” (the ILO Constitution), improvement of working conditions (Article 136 EC), respect for EU and international fundamental rights, respect for the European social model (prominent role of collective agreements) and non-discrimination of grounds of nationality. An employer acting against these principles should not enjoy legal protection in EU law. As to the development of collective labour law in the EU, the author adheres to the thesis that in the long run Europeanisation of economy leads to the emergence of a European framework. However, at present it seems to develop essentially through case-law (the Laval and Viking cases).