Transcript Slide 1

European
Labour Law
Lecture 11B
11.6 Negative aspects – Public
Procurement 1
• Another instrument with which national
governments have traditionally favoured their
own national industries is governmental orders.
This occurred on a large scale in the defense
industry or in infrastructural works (tunnels,
roads etc.).
• This policy was detected very early as an
infringement of the idea of non-discrimination
and fair competition within the EU, so the EU
has issued various Directives concerning the
co-ordination of procedures for awarding public
works contracts.
11.6 Negative aspects – Public
Procurement 2
It is often thought that the detailed rules set out in
the Directives are prohibiting the authorities to
maintain high, social and employment standards
when they are awarding public work contracts. In
theory this is not correct because the public
procurement rules allow the awarding authorities
not to give the contract to the cheapest tender,
but to “the most economically advantageous”
tender.
11.6 Negative aspects – Public
Procurement 3
However this last option requires the public
authority to specify in the tender documents the
criteria with their relative weightings, chosen for
the evaluation of the tenders. Any failures or
inaccuracies in the tender documents could
endanger the provision of the services and lead to
lengthy court proceedings.
It is submitted that many awarding authorities are
unable to formulate sufficiently accurate such
standards of quality and therefore simply choose
the option of awarding the contract to the
cheapest tender.
11.6 Negative aspects – Public
Procurement 4
This easily has bad effects on the position of the
workers.
For instance in the Netherlands it caused a race
to the bottom in the employment conditions of
cleaning workers hired through cleaning work
contractors by large using companies (railways,
airports, et). Only tough strike activities could turn
this trend.
11.7 Negative aspects – Company law 1
The creation of a European common market has
stimulated a growth of mergers and acquisitions.
This often has made many workers unemployed
and destroyed jobs in entire regions.
The EU has taken some flanking measures, such
as the Transfer of undertakings and the Collective
Redundancy directives, but they offer only very
small consolation.
11.7 Negative aspects – Company law 2
The creation of a European common market has
contributed to the fact, than an increasing number
of companies are no longer restricted to one MS.
They are part now of an international group of
undertakings.
Although the EU has come out with hard laws
requiring employers to inform and consult the
workers, the effects of such information and
consultation is much lower than they used to be in
various national companies.
And it certainly has often weakened the
possibilities for workers to participate in the
governance of the companies. Apart from the SE
the EU has not been able to remedy this.
11.8 Negative aspects – Collective
bargaining 1
Since a number of years the ECJ is confronted
with questions about the tension between EU law
and collective bargaining.
The question initially concerned the area of
equality of m/f.
Notwithstanding the fact that free collective
bargaining is a fundamental right, the ECJ in
several cases (e.g. Enderby) confirmed that the
collective agreements must, like statutory labour
law, respect the EU-rules on equality m/f.
11.8 Negative aspects – Collective
bargaining 2
In recent case law (Prigge//Hennings) this was
extended to the EU rules on age discrimination. In
this field the interest of the social partners to go
their own way is much higher than in m/f
discrimination. Although it seems that the ECJ
until now leaves the social partners (like the
legislator) more room for discretion, it
nevertheless may upset their autonomy.
11.8 Negative aspects – Collective
bargaining 3
In 2009 in the Albany case, the ECJ saved the
collective agreement from the threat to be tested
to EU competition law, anyway as far as its core
business (employment and working conditions) is
concerned. However, there may come problems
on the fringe. In the Netherlands an actual
question is: may collective agreements lay down
conditions of employment of independent
workers?
11.8 Negative aspects – Collective
bargaining 4
In Viking and Laval cases the ECJ has ruled, that
the exercise of the right to collective bargaining
had to be reconciled with the economic freedoms
of the Treaty.
In the Rüffert case the ECJ rejected a classic
instrument to support collective bargaining, viz.
the insertion of the obligation to apply a relevant
collective agreement in the conditions of a public
procurement.
In the case (Commission vs Germany) the ECJ
found that the EU rules on public procurement
could not simply be neglected in collective
agreements. The idea of free collective bargaining
should have been reconciled with these rules.
11.9 Negative aspects – Inequality 1
Did not all these liberal measures cause a
growing inequality in the EU?
EU Labour Law, which is comprehensive in the
field of discrimination, has certainly contributed to
a decrease of formal inequality.
Yet, there is increasing evidence (reports of
OECD, European Commission and ETUC
2011/2012) that in recent decades real inequality
in the EU has increased substantially.
11.9 Negative aspects – Inequality 2
The rise is most in income inequality, especially at
the top of income distribution
There is also more inequality in employment
outlooks of – on the one hand - educated middle
aged workers and – on the other hand – young
workers, migrant workers, disabled and elderly
workers: the duality on the labour market
There are more inequalities in educational
attainment.
Regional disparities within the EU and MS are on
the rise
11.10 Negative aspects – Labour Market
Reform 1
-The European Commission goes on pressing for
flexibility on the labour market, which could lead
to less employment protection:
-Reform of the industrial relations and collective
bargaining systems (including decentralisation of
collective bargaining)
-Changes to individual/collective dismissal rules
-Changes to organisation of working time
regulation
-Changes to rules on atypical contracts
-Pay freeze or cuts in the civil service
protection.
11.11 Negative aspects – Social Security
Reform - 1
-11. The European Commission insists on a
“more sustainable” (= cheaper) systems of social
security. This sould notably been done by
-Reduction in social welfare benefits and
allowances
-Pension reform
11.12 Negative aspects - Financial crisis
1.
The two preceding points have become notably
clear in the present monetary crisis.
In many of the EU MS, hit by the actual financial crisis
measures have been adopted in the field of
-Reform of industrial relations and collective bargaining
systems (including decentralisation of collective bargaining)
-Changes to individual/collective dismissal rules
-Changes to organisation of working time regulation
-Changes to rules on atypical contracts
-Pay freeze or cuts in the civil service
-Reduction in social welfare benefits and allowances
-Pension reform
11.12 Negative aspects - Financial crisis 2.
Such measures formally were not prescribed by
EU Labour Law, but were adopted by the various
MS to please the European authorities and the
International Monetary Fund with which many of
them had to negotiate in order to obtain relief for
the financial problems.
It seems, that sometimes the European
Commission negotiators were even less
concerned with the social problems of these
measures than the negotiators of the IMF.
The case of Latvia stands out as a case in which
the EU/IMF negotiators showed most compassion
with the social problems of these measures.
11.12 Negative aspects - Financial crisis 3.
Many people claim, that various of these
measures are in violation of several international
labour standards and are considering complaints
and appeals to the courts.