Collective agreements as a mechanism for enforcement of EU law

Collective agreements provide an industrial relations mechanism for the enforcement of EU law. In comparison with administrative officials or judges, the social partners are much closer to the issues involved in the enforcement of labour law. Hence, they have the potential to be effective guarantors of the application of the rules.

However, the effectiveness of this industrial relations mechanism is closely scrutinised by the European Court of Justice (ECJ). Member States that rely on implementation through collective agreements must demonstrate that they allow for effective enforcement of the Directive’s provisions. For example, in a complaint that Italy was not adequately implementing Directive 75/129 on collective dismissals, the Italian Government argued ‘in substance’ that legislation, regulatory provisions and collective agreements combined to achieve implementation. In upholding the Commission’s complaint, the ECJ pointed out that certain sectors were not covered by agreements, and that the agreements did not include all the provisions required by Community law (Commission of the European Communities v. Italian Republic, Case 91/81, [1982] ECR 2133.

While critical, the ECJ was appreciative of the effects of collective agreements in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland, Case 165/82, [1983] ECR 3431. The ECJ held that the failure of the UK Government to enact legislation providing for the nullification of collective agreements violating the provisions of Directive 76/207 on equal treatment of women and men, constituted non-fulfilment of its obligations under Article 249 EC. However, although collective agreements in the UK lacked legal effect, the European Court stated: ‘… even if they are not legally binding as between the parties who sign them or with regard to the employment relationships which they govern, collective agreements nevertheless have important de facto consequences for the employment relationships to which they refer, particularly in so far as they determine the rights of the workers….’ A similar view was expressed in the Opinion of Advocate-General Rozès in the case: ‘…workers have easier access to collective agreements... than to Directive 76/207 or to the United Kingdom laws….’

Subsequently, there has been a series of other decisions of the European Court reinforcing the critical scrutiny of collective agreements in the area of equal pay and equal treatment. Collective agreements are condemned if they make unequal provision for women and men (Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Case 170/84, [1986] ECR 1607; Maria Kowalska v. Freie und Hansestadt Hamburg, Case 33/89, [1990] ECR 3199), provide for discriminatory criteria for pay calculations and lack transparency as regards pay determination (Handels og Kontorfunkionaerenes Forbund i Danmark v. Dansk Arbejdsgiverforening, Case 109/88, [1989] ECR 3199). Each case involved the Court making a close examination of the practical workings of a collective agreement. In each case it was the substance of the agreement that was condemned.

However, despite this critical approach, in principle, collective agreements are formally acceptable as a mechanism for the enforcement of EU law.

See also: directives.