Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union was signed and solemnly proclaimed by the Presidents of the Commission, the European Parliament and the Council on 12 December 2007, paving the way for the signing of the Treaty of Lisbon the following day. Article 1(8) of the Treaty recognises the rights, freedoms and principles set out in the Charter and states that these shall have the same legal value as the Treaties. The Charter of Fundamental Rights was initially solemnly proclaimed at the Nice European Council on 7 December 2000, but this was merely a political commitment carrying no binding legal effect.
The Charter had been adapted, particularly as regards its general provisions, with a view to making it legally binding and this approach was confirmed at the European Council of June 2007, during the negotiations on the mandate for the Intergovernmental Conference and during the Conference itself.
The Charter was given legal status by the Lisbon Treaty, which came into force on 1 December 2009. Article 6 of the Treaty states that the Union recognises the rights, freedoms and principles set out in the Charter, and that it shall have the same legal value as the Treaties. Nevertheless, Article 6 also states that the provisions of the Charter shall not extend, in any way, the competences of the Union as defined in the Treaties.
However, in advance of the Charter being ratified at the 2007 Intergovernmental Conference, special arrangements were agreed with the United Kingdom and Poland which enabled the binding nature of the Charter to be maintained and for it to be applied in full to the other 25 Member States. In the case of the UK, the Charter contains a legally binding protocol, which states no court can rule that the ‘laws, regulations or administrative provisions, practices or action’ of the UK are inconsistent with the principles laid down in the charter. Further, it states that the Charter creates no new rights enforceable in the UK, over and above those already provided for in national law. There has been some debate about how this will work in practice and whether it will be open to legal challenge on the grounds that it violates a principle that EU law must be applied uniformly to all member states.
The EU Charter represents a significant contribution to the promotion of rights on employment and industrial relations in the EU. It is an independent source of rights and is not limited to national practice in individual Member States. The Charter breaks new ground by including in a single list of fundamental rights, not only traditional civil and political rights, but also social and economic rights, proving that these latter rights are recognised as having the same status as civil and political rights. Finally, the Charter puts pressure on EU institutions to promote a European social model.
Within the Charter’s 45 Articles there are a number that may be relevant to employment-related matters. These include: the prohibition of slavery and forced labour (Article 5); freedom of expression and information (Article 11); freedom of assembly and freedom of association (Article 12); freedom to choose an occupation and the right to work (Article 15); the non-discrimination principle (Article 21); and equality between women and men (Article 23).
More specifically under Title 1V (Solidarity), there are the following rights:
- workers’ right to information and consultation within the undertaking (Article 27), which states that workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices;
- right of collective bargaining and action (Article 28), which states that workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action;
- right of access to placement services (Article 29), which states that everyone has the right of access to a free placement service;
- protection in the event of unjustified dismissal (Article 30), in accordance with Community law and national laws and practices;
- fair and just working conditions (Article 31), which gives a right to working conditions that respect health, safety and dignity, and a right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave;
- prohibition of child labour and protection of young people at work (Article 32), which notes that, excepting more favourable provisions and limited derogation, the minimum age of admission to employment may not be lower than the minimum school-leaving age. Further, working conditions for young people must be appropriate to their age and they must be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education;
- family and professional life (Article 33), which gives everyone the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child;
- social security and social assistance (Article 33), which recognises and respects entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and loss of employment, in accordance with Community law and national laws and practices.
The Charter has already become a point of reference in the case law of the European courts. In the Laval case, the European Court of Justice recognised that as a consequence of the Charter, the right to take collective action must be recognised as a fundamental right. The Charter was also referred to in the Viking case. Thus the dynamism shown by the Court over the past 30 years as regards the recognition of fundamental rights as general principles of Community law may eventually be applied to promote the fundamental rights on employment and industrial relations in the EU Charter.