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We have analysed before in these pages (issue 15) the possible opportunities which the EU's Charter of Fundamental Rights could confer on trade unions taking on employers in court cases. Whilst the original promise of the charter seems to have faded somewhat the convention considering the future of Europe is due to recommend whether or not it should have the force of law to the Council of Ministers in June. We examine whether advances can still be made.
In 2001 when the media union BECTU received a favourable opinion from the advocate general of the European Court of Justice in its dispute with the UK government the way seemed clear for unions to use the charter to back their cases in court. This was because the opinion referred to the charter as 'serving, where its provisions so allow, as a substantive point of reference for all those involved'.
Since then opinion has become more divided on its effectiveness. While there have been 26 citations of it at the ECJ, the judgement, as opposed to the preliminary opinion, in the BECTU case did not refer to the charter. When the judges have to reach unanimity they have seemed to draw back from the charter due to its uncertain legal status. Secondly the attitude of the UK government seems to be resolutely against incorporating any 'social' or 'economic' rights into a legal framework and this has been underlined both by a House of Lords select committee and the Attorney General. Thirdly it appears that only court action against Member State governments or EU institutions can be based on the charter, rather than, for example, against individual employers. Lastly the current method of using the charter means that case law will slowly emerge dependent on the subjects touched on by individual court complaints.
With these drawbacks questions have been raised as to whether the charter will be of any use to trade unions in the long run. However some commentators espy a white knight on the horizon in the shape of the Convention on the Future of Europe. This body, charged with formulating a possible European Constitution, was specifically asked to decide 'whether the Charter of Fundamental Rights should be included in the basic treaty'. Its working group concluded 'all members of the Group either support strongly an incorporation of the Charter in a form which would make the Charter legally binding and give it constitutional status or would not rule out giving favourable consideration to such incorporation'. If the EU summit in Greece in June and the Inter-Governmental Conference scheduled for next year both agree, the charter would acquire teeth and the judges confidence in it.
While it may supersede weak national law in countries like the UK, employers may also use it to reopen fundamental principles, until now established in other Member States. Implementation must be careful to enforce sanctions against those who contravene the charter as well as to prevent more effective national legislation being watered down and thresholds, exclusions etc. being added. Selected cases before the ECJ could widen the interpretation by the court of the trade union rights in the charter.
1) French civil service pension
The court has recently found that the pension scheme for civil servants in France infringes equal pay law in at least two ways. Women workers are granted extra pension credits when they retire, linked to how many children they have. The scheme also allows women to retire on the grounds of their spouse's ill health. Both provisions do not apply to men although they were likely to be involved in bringing up a child and wives could fall ill as well as husbands.
A Dutch government ministry has been judged to have acted within EU law by the ECJ when it set up a nursery for female employees. Designed to produce a better gender balance in the work force, the subsidised child care places are available only to women workers except in exceptional circumstances. However the court found that the 1976 equal treatment directive allows such schemes if men with sole responsibility for child care were not excluded.
In Germany military service is compulsory for men only. A Mr.Dory, who had reached the age of conscription, applied for an exemption on the grounds that the exclusion of women contravened the equal treatment directive. He relied on the previous 'Kreil' judgement (see issue 9 page 6) which prevented the German armed forces from barring women from all its branches. Since then, women have had the right to perform service involving the use of arms, but not the obligation to perform military service. The German court which referred the case to the ECJ also pointed out that compulsory military service delayed access to employment and vocational training for men.
In an opinion the ECJ's advocate general stated, bearing in mind that 'the organisation of military forces as such falls within the exclusive competence of the Member States', ' the EC Treaty [does] not preclude a national system of military service compulsory only for men'. Concerning the equal treatment directive the judge found that the delayed access of men to the labour market was an 'effect' rather than the 'subject matter' of military service and so was not covered. The case will receive a full judgement at a later date.
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