National labour courts
National labour courts are responsible for the enforcement of the EU law on employment and industrial relations which forms part of the national legal system. Enforcement of EU law by national labour courts depends on the existence of substantive rights. National labour courts can intervene only where there is substantive EU law, which confers rights to be enforced. Where there is an EU law to be enforced by national labour courts, EU law may operate to expand domestic remedies, procedures and sanctions to protect that right.
EU law thereby infiltrates Member State laws through national labour courts in the form of various EU law doctrines, such as the direct enforceability of directives having a clear, precise and unconditional content (direct effect doctrine) or the doctrine requiring domestic law to be interpreted consistently with EU law (indirect effect doctrine). Where domestic law, permeated by EU law, is not adequately enforced, the European Court of Justice (ECJ) has developed doctrines concerning the remedies, procedures and sanctions required to achieve the effectiveness required by EU law. In effect, the ECJ engages national labour courts in the enforcement of EU law. This can be seen as a subtle strategy of cooperation.
Naturally, this process has not been uncontroversial, where enforcement of EU law has impinged directly on Member States. For example, the prospect of empowering national courts to uphold the ECJ’s doctrine of liability of Member States for infringements of EU law, perhaps in conditions where national law limits state liability, has created anxiety among Member States. This anxiety may be somewhat alleviated, because the application of EU law by national labour courts is inevitably influenced by their experience in enforcing national labour law.
However, it is one task of the European Court of Justice to secure a degree of uniformity in the interpretation and application of EU labour law by national courts in different Member States. This task leads to a relationship between national labour courts and the ECJ, which can be described as a form of dialogue.
Interaction between national labour courts and the ECJ arises from the preliminary reference procedure in Article 267 TFEU. National labour courts may, and the highest court is obliged to, refer questions to the ECJ concerning ‘(a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community.’ The ECJ is therefore dependent on the willingness of national labour courts to make references to it, while national labour courts are bound by the decisions of the ECJ once references are made.
The ECJ’s interventions will reflect a sensibility aimed at reassuring national labour courts as to the positive outcome of preliminary references. The ECJ must balance the requirements of EU law with respect for national traditions of employment and industrial relations, and respect for the role played by national labour courts.
See also: access to the judicial process; direct effect; enforcement of EU law; euro-litigation; indirect effect; Francovich principle; judicial cooperation in the EU; judicial enforcement of EU law; supremacy of EU law.