ECJ gives Turkish employees right to stand in Chamber of Labour elections

In May 2003, the European Court of Justice ruled that Turkish nationals should be eligible to stand for election to the general assembly of Austria's Chamber of Labour. This judgment challenges the controversial nationality-based rules on elections to Austrian statutory representative bodies in the industrial relations field.

On 8 May 2003, the European Court of Justice (ECJ) ruled (in case C-171/01 Wählergruppe Gemeinsam Zajedno v Birlikte Alternative und Grüne GewerkschafterInnen/UG) that the Republic of Austria must allow employees of Turkish nationality to be eligible to stand as candidates for election to the general assembly of the Chamber of Labour (Arbeiterkammer, AK). The judgment resulted from a case referred by the Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) to the ECJ for a preliminary ruling in March 2001. The VfGH - Austria's highest court for matters including elections to statutory representative bodies in the industrial relations field, such as the Chamber of Labour - had referred the matter to the ECJ since the former's members had been undecided as to whether Community law was in conflict with the Austrian legislation which excludes workers who are citizens of countries outside the European Economic Area (EEA) from eligibility to stand for election as officers in the Chamber of Labour (AT9802168N).

Background

In February 1999, the relevant principal election commission (AK-Hauptwahlkommission) struck five Turkish employees off a list of candidates for election to the general assembly of the regional Chamber of Labour in the province of Vorarlberg put forward by a campaigning group named Wählergruppe Gemeinsam-Zajedno-Birlikte. After the election in April 1999, Wählergruppe Gemeinsam-Zajedno-Birlikte contested the validity of the results in a submission to the Ministry of Social Affairs in May 1999. Its argument was that all of the Turkish nationals concerned were holders of a so-called 'licence of release' (Befreiungsschein) which exempts the holder from all restrictions concerning the employment of non-EEA nationals. Thus, all the preconditions for the eligibility of these candidates were fulfilled, except the nationality criterion based on §21 of the Chamber of Labour Act (Arbeiterkammergesetz, AKG), which the campaigning faction argued was in breach of Community law. However, the then minister in charge, Lore Hostasch, dismissed the complaint in November 1999. As a consequence, Wählergruppe Gemeinsam-Zajedno-Birlikte took the case to the VfGH, calling for the decision of the principal election commission to be repealed and for the whole electoral procedure and its results to be annulled. Furthermore, the group asked the VfGH to order new elections .

The VfGH thus had to examine whether the relevant national legislation (ie §21 AKG) was inconsistent with Community law. However, since the VfGH hesitated to interpret autonomously what were seen as the partially contradictory provisions of Community law as regards discriminatory regulations for 'third-country' employees (ie employees from outside the EEA), it stayed the proceedings in order to clarify the legal situation by referring the question to the ECJ.

The ECJ ruling

The VfGH asked the ECJ to rule on: whether Article 10(1) of Decision No. 1/80 of the Association Council - established by the Association Agreement concluded between the European Community and the Turkish government - should be interpreted as precluding an EU Member State provision which excludes Turkish workers from eligibility for the general assembly of a body such as the Chamber of Labour; and if so, whether Article 10(1) of Decision No. 1/80 is directly applicable Community law in the EU Member States. Article 10(1) states that: 'The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers.'

The ECJ ruled that Article 10(1) of Decision No. 1/80 is to be interpreted as: (a) having direct effect in the Member States; and (b) precluding the application of national legislation which excludes Turkish workers duly registered as belonging to the labour force of the host Member State from eligibility for election to the general assembly of a body representing and defending the interests of workers, such as the Chambers of Labour in Austria. Due to the precedence of Community law over national legislation, §21 of the AKG is thus unlawful.

Gerhard Strejcek, an expert at the University of Vienna, states that this ruling is interesting and surprising, in so far as the ECJ has extended Decision No. 1/80's ban on discrimination against Turkish employees at the workplace to the field of eligibility for Chamber of Labour elections. This is despite the fact that Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community, based on Article 49 of the European Community Treaty (now renumbered), provides, in the case of nationals of one EU Member State working in another, only for equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote, plus the right of eligibility for workers' representative bodies in the undertaking.

Regulation (EEC) No. 1612/68 also provides explicitly that nationals of one EU Member State working in another may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law. Each Member State is entitled to make citizenship a criterion for holding offices governed by public law. The AKG provides that Chambers of Labour, unlike trade unions, are corporations governed by public law and have the task, subject to the binding instructions of state bodies, of exercising functions of state administration which are conferred on them by law. However, despite the Chamber's argument in the present case that the public-law exclusion applies, the ECJ stated that the Chambers are not an essential part of the public administration and do not appear to be of a type to participate in the exercise of relevant public-law powers. Moreover, the non-application of the Treaty's rules on freedom of movement to activities which involve participation in the exercise of public-law powers is an exception and must be interpreted in such a way as to limit its scope to that which is strictly necessary. The exception cannot permit a Member State to submit generally any participation in a public-law institution such as the Chambers of Labour to a condition of nationality but merely permits foreign workers to be excluded, where appropriate, from certain specific activities of the institution in question. Thus the denial to Turkish nationals of the right to stand as a candidate for election to a body representing and defending the interests of workers, such as the Chambers of Labour, can be justified neither by the legal nature of the body in question under national law nor by the fact that certain of its functions could involve participation in the exercise of powers conferred by public law.

Far-reaching consequences

The ECJ ruling will now provide a basis for the VfGH’s further consideration of this matter. The ECJ’s interpretation of the law does not only extend to Turkish workers the right to stand for election to the general assembly of the Chamber of Labour. The regulations on elections to other statutory representative bodies, such as the employers' Chamber of the Economy (Wirtschaftskammer Österreich, WKÖ), whereby eligibility is tied to nationality, must now also be considered unlawful in the light of Community law. Furthermore, the judgment arguably paves the way for non-discriminatory national regulations providing a right for certain 'third-country' nationals to stand for election to most public offices - which, according to the Austrian Constitution, are currently open only to Austrian citizens and, in exceptional cases, citizens of other EU Member States. Moreover, in the long run, some experts believe that the ECJ judgment is likely to bring far-reaching changes in Austria’s general electoral system, commercial law system and even its Constitution.

Commentary

Austria is the most restrictive EU Member State as regards non-EEA nationals’ rights to stand for election to statutory employee representative bodies (TN0303105S). Similar to the regulations on eligibility for Chamber of Labour elections, nationality is also an essential criterion for works council membership, a fact which has repeatedly been criticised by several international organisations, such as the United Nations Human Rights Committee and European Commission (AT0208202F). Notably, the most recent amendment of the AKG, in 1998, reaffirmed the nationality criterion for eligibility, although the initial draft presented by the ministry responsible had taken into account Community law and included non-discriminatory regulations with respect to non-EEA nationals (AT9804181N). However, this draft was finally blocked by the conservative People’s Party (Österreichische Volkspartei, ÖVP). The Chamber of Labour itself has never tried actively to alter the discriminatory provisions regarding its elections, since such amendments have been regarded as unpopular and risky in terms of their possible effects on electoral results.

Since neither the social partners (except some individual trade unions) nor the principal political parties seem willing to amend the relevant legislations on eligibility to stand for election to representative bodies, it will probably require further ECJ decisions to force the Austrian legislator to adjust the relevant national rules to Community law requirements. (Georg Adam, University of Vienna)

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