Fundamental rights

Fundamental rights are now part of the EU legal order. However, the original Treaties did not contain provisions relating to basic human rights. The European Economic Community was limited to economic matters, and the European Court of Justice first developed protection for fundamental rights in economic and commercial interests, rights to property and the freedom to pursue a trade or profession.

Moreover, the Court was impelled to include fundamental rights in the EU legal order so as to defend the principle of supremacy of EU law. The threat to the supremacy of EU law over national law arose when national constitutional courts resisted Community action, insofar as they considered it as violating fundamental rights protected in national constitutions.

In Stauder v. City of Ulm, Case 29/69, [1969] ECR 419, a Commission decision was said to be contrary to basic rights under German constitutional law. The ECJ managed to interpret the Commission’s action to avoid this conflict, but added: (paragraph 7) ‘Interpreted in this way, the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.’

On the one hand, the European Court emphasises that fundamental rights as general principles of Community law are autonomous from specific principles protected by the constitutional laws of individual Member States. On the other hand, these fundamental rights as general principles of EU law are rooted in the national legal cultures and reflect the constitutional traditions of the Member States.

The latest development in the integration of fundamental rights in the EU legal order has been the incorporation of the Charter of Fundamental Rights of the European Union, initially proclaimed at the European Council at Nice on 7 December 2000, into primary EU law by the Treaty of Lisbon which took effect on 1 December 2009.

Fundamental labour rights

As regards fundamental rights in the field of employment and industrial relations, the Preamble to the Treaty of the European Union confirms the Member States’ ‘attachment to fundamental social rights as defined in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers.’ Article 151 of the ‘Social Chapter’ of the TFEU begins: ‘The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.’ These references have been considered by some Authors as an incorporation of the fundamental rights in the Treaties.

The Charter of Fundamental Rights of the European Union includes seven chapters divided into 54 Articles covering fundamental rights relating to dignity, liberty, equality, solidarity, citizenship and justice. Of particular interest to employment and industrial relations are provisions on protection of personal data (Article 8), freedom of association (Article 12), freedom to choose an occupation and right to engage in work (Article 15), non-discrimination (Article 21), equality between women and men (Article 23), workers’ right to information and consultation within the undertaking (Article 27), right of collective bargaining and collective action (Article 28), protection in the event of unjustified dismissal (Article 30), fair and just working conditions (Article 31), prohibition of child labour and protection of young people at work (Article 32) and reconciliation of family and professional life (Article 33).

The provisions of these Charters provide sources of inspiration for all the EU institutions, and in particular, the European Court of Justice in litigation concerned with social and labour rights. Moreover, the relevance of the Charter of Fundamental Rights of the European Union might be further increased by its incorporation in the Treaty establishing a Constitution for Europe, though its approval is still pending.

Fundamental rights in the field of employment and industrial relations are not identical in the EU Member States. The historical, legal and industrial relations traditions of the former EU15, for instance, have produced differences in national laws, which highlight the problem of producing a set of uniform fundamental rights. However, despite national differences, analysis of fundamental rights in the Member States can identify a comprehensive list of rights, which the European Court of Justice might be prepared to recognise as common to all or just some Member States.

Further, the European Court of Justice would be able to draw upon a range of international law sources of fundamental rights in the labour field. The Council of Europe’s Social Charter is referred to in the Treaties. Ratification by all Member States of ILO Conventions, for example, Convention No. 87 of 1948 (Freedom of Association and Protection of the Right to Organise), and Convention No. 98 of 1949 (Application of the Principles of the Right to Organise and to Bargain Collectively) has produced a common foundation of fundamental rights of labour in all Member States of the EU.

See also: Community Charter of the Fundamental Social Rights of Workers; Charter of Fundamental Rights of the European Union; European Convention for the Protection of Human Rights and Fundamental Freedoms; European Social Charter; international labour standards; justiciability of EU law; European Union Agency for Fundamental Rights