Joe Higgins MEP on Lisbon & Workers Rights

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UPDATE: A response to the claim made by Blair Horan of the Charter Group about references made to Article 52

As originally written, there was a minor error in this article in the wording of a paragraph of Article 52. The correct wording of Article 52 of the Charter of Fundamental Rights as written in 2000 (which I was quoting from) is below:

“Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties.”

In actual fact, the Charter as written in 2000 has now been superseded by the Charter published in 2007 (available here with the explanation)

The current wording of that paragraph is now:

“Rights recognised by this Charter for which provision is made in the Treaties shall be exercised under the conditions and within the limits defined by those Treaties.”

This minor error in no way affects the argument being made below.  As highlighted in my response to Blair Horan’s hysterial press release, in actual fact the Charter of 2007 emphasises the argument that I am making. A new addition to the 2007 Charter is Paragraph 7 of Article 52, which gives legal basis to the Official Explanation. As detailed below, this explanation explains that these rights are restricted by the “common organisation of the market”.

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After months of shadow fighting, the Lisbon campaign has now well and truly begun. Many issues will be raised in the next weeks about what the Treaty does and doesn’t do. The key questions for the left should be about what the Treaty means for workers rights and for public services. Elsewhere I have looked at the issue of public services and militarisation. Here, however, I would like to go into the issue of workers rights.

The Charter Group, made up of some trade union leaders, claim that if the Lisbon Treaty is passed it will significantly add to workers’ rights because Lisbon ratification would give workers’ rights “equivalence” with ‘market rules’. The implication is that judgements of the European Court of Justice, which supported contractors’ rights to refuse to observe protection afforded to migrant workers by trade union negotiated agreements, and by rules imposed by regional and national public authorities, could not be repeated if Lisbon is ratified. This is demonstrably false and these trade union leaders do a grave disservice to their own membership and workers generally.

European Court of Justice Rulings

The European Court of Justice judgements in cases known as Laval, Viking, Ruffert and Luxembourg amount to a fundamental attack on workers’ rights. These judgements do not just relate to the transposition of the Posting of Workers’ Directive into domestic law.
They amount to a political interpretation by the European Court of Justice of that Directive. That interpretation is that only very limited rights of workers posted to another member state can be protected by legislation and that laws that attempt to protect more than that minimum standard can be struck down.

In the Laval case, the Court stated that the Directive “cannot be interpreted as allowing the host Member State to make the provision of services in its territory conditional on the observance of terms and conditions of employment which go beyond the mandatory rules for minimum protection.” This is quite explicit in basically ruling that states cannot make higher levels of protection that go beyond the limited rights in the Posting of Workers Directive.

It is very clear that the Court has, in successive court judgements put the right of business to trade across EU borders, and profit there from, before the interests of working people. This view is shared by the leadership of the European Trade Union Confederation. John Monks, the ETUC General Secretary said after the Luxembourg case:

“This is another hugely problematic judgement by the ECJ, asserting the primacy of the economic freedoms over fundamental rights and respect for national labour law and collective agreements. It turns the Posting Directive from an instrument that was intended to protect workers, companies and labour markets against unfair competition on wages and working conditions into an aggressive market tool.”

Would Lisbon change this?

Clearly these decisions were based on EU law prior to the ratification of Lisbon. However, the question is, would the passing of the Lisbon Treaty assist in the enforcement of workers’ rights, as the Charter Group implies, or would it copper-fasten these anti-worker rulings?

The Charter Group heralds the incorporation of the Charter of Fundamental Rights and claims that this proves that Lisbon would assist with workers’ rights and that such judgements could not be given if Lisbon is ratifies. This is false.

Article 52 of the Charter is explicit in limiting the rights contained therein when it says:

“Rights recognised by this Charter are based on Community Treaties or the Treaty on European Union and shall be exercised under the condition and within the limits defined by those Treaties.”

The Lisbon Treaty inserts the following in Article 6 of the Treaty on European Union:

“The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application with due regard to the explanations referred to in the Charter, that set out the source of those provisions.”

Title VII includes Art 52 quoted above.

The explanations referred to in Article 6 are those from the Bureau of the Convention which clearly show that the pro business interpretation of the ECJ in the cases mentioned is decisive:

“The purpose of Article 52 is to set the scope of the rights guaranteed. Paragraph 1 deals with the arrangements for the limitation of rights. The wording is based on the case law of the Court of Justice: “…it is well established in the case law of the Court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market….”
Explanations of the Bureau of the Convention

Lisbon: Enshrining the ‘rights’ of big business will come before workers rights

That is quite clear again, as the Socialist Party has repeatedly argued – the rights in the Charter will be limited by the “common organisation of the market” which is Eurospeak for the right to trade and make profits, thus allowing business to give posted workers significantly lesser wages and conditions than indigenous workers. The mortal danger here for the welfare of all workers is that if such practices became widespread, they would give rise to a massive ‘race to the bottom’ in all workers’ wages and conditions.

The Charter of Fundamental Rights plays a similar role in the Lisbon Treaty to the role of the so-called guarantees in the referendum campaign. Both are fig leaves designed to dress up an anti-worker Treaty. The reality is that Lisbon grants no new rights for workers.

Not only that, in giving the European Court of Justice the power to weigh the rights contained in the Charter against the rights of business, it also copper-fastens the ECJ judgements which allow migrant workers to be exploited.

Finally, the idea which Blair Horan raises in his letter to the Irish Times that the “Declaration on Workers’ Rights secured by the Irish Government… will assist the ongoing process to address these concerns” is laughable. This declaration has as much standing as a Fianna Fail election promise. Aspirations and a paraphrasing of the Treaty do not alter the fundamental point – European Court judgements have been an
important instrument in driving down workers’ rights and Lisbon copper-fastens these.

Workers in Ireland and across Europe are struggling to defend wages and conditions. The Lisbon Treaty is a weapon of this “race to the bottom”. The left must be clear on this. It should be defeated to clearly reject the putting of big business’ profits before the interests of working people.

Joe debated the issue of workers’ rights with Pat Cox on Prime Time last night. You can watch it through RTE’s Prime Time site.

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6 Responses

  1. Cian

    September 4, 2009 5:53 pm

    Below is a back and forth debate that took place last night on Twitter between myself (cianpop, member of the Socialist Party) and Stephen Spillane (spiller2, activist with Generation Yes). It goes into the ideas above in bite-size chunks, which could be interesting in maybe sparking more debate.

    spiller2: Higgins is wrong… Charter not legally binding yet. If we pass charter those cases can be over turned

    cianpop:: charter says nice things for workers rights, then says they come SECOND to business rights.

    spiller2: where? point out that phrase, cause it dont.

    cianpop:: I think it’s article 52. Sorry, my web is down, but it’s in Joes article at: http://www.irishleftreview.org/ …. Sorry, that post earlier on should have linked to http://www.irishleftreview.org/ where joe outlines the reality of Lisbon & workers rights.

    spiller2: not article 52. It talks about limits but says they must be justified.

    cianpop:: workers rights are LIMITED by rights of big business. Disputes to be adjudicated by the ECJ. And we’ve seen how they opperate.

    spiller2: and charter will make the ECJ take the charter and the ECHR under lisbon into account. how can that be bad?

    cianpop:: because the charter SUPPORTS the ECJ’s view that the rights are limited – not fundamental, HUMAN rights.

    spiller2: and nowhere does it say workers right are limited. That is your opinion not a fact!

    cianpop:: “restrictions may b imposed on the exercise of fundamental rights, in particular in d context of a common organisation of d market”

    spiller2: where does it say that? its not in article 52

    cianpop:: all this is in the Irish Left Review article http://bit.ly/vHw0p

    spiller2: i dont want that, i want the actual document that will come into law. not joes version of it. and the document Joe quotes is not what we are voting on. It is an explanatory document, and things do change!

    cianpop:: quote is from the “explanation of the bureau of the convention” http://bit.ly/9uP1y.

    spiller2: which isnt a legal document.

    cianpop:: the document quoted is the document referenced in the treaty to explain what article 52 means. It is the OFFICIAL interpretation.

    spiller2: which is not a legal document. A judge can only go on what the charter says, he can consult any material he wishes.

    cianpop:: it is. It is the legal interpretation of article 52. It is referenced in the treaty as the legal meaning of the article.

    cianpop:: no. as the treaty says, a judge will have to take “due regard to the explanations referred to in the Charter” ie this explanation!

    spiller2: yes due regard, its does not mean follow to the letter. If circumstances deem otherwise he can look elsewhere?

    cianpop:: and u think the ECJ is going to bend over backwards, bending the treaty, disregarding offician interpretations, to defend workers?

    spiller2: there is also ECHR

    cianpop:: to my knowledge (but i’m not an expert on this, better checking sayno.ie which write on this), lisbon makes ECJ senior over ECHR.

    spiller2: how??? ECHR is from a different organisation which EU is acceding to! i wouldnt trust sayno.ie with anything!

    cianpop:: let’s not skip onto a seperate issue. Point is that for the EU, the ECJ is key. And Lisbon says workers rights come second place.

    spiller2: no it dosent. nothing in the treaty is going to lessen workers rights anyway. Even SIPTU have said that. Socialists seem to be following the brit union who are inherently eurosceptic.

    cianpop:: Did we not just go thru how art52 means, from the official interpretation, that rights are 2nd to market. Let’s not go in circles.

    Siptu leaders 4 yes, Unite, TEEU (and the RMT which u reference with the nationalistic ‘brit’ phrase) for a no. We’re hardly alone.

    spiller2: but it dosent say big bis. it says to functioning of single market which ultimately is good for workers

    UNITE are brit, they are an offshoot nothing more to their british imperialist masters

    cianpop:: well. in the interest of a ‘functioning market’ we’ve had the viking, luxembourg, laval etc cases. Stikes being banned. and before u say it. Yes they were pre-lisbon. But lisbon supports that logic. It gives it a legal base in article 52 of the charter.

    spiller: i know that! but article 52 is not the be all and end all and does not apply to ECHR!

    cianpop:: oh, now ur opposing the idea of workers in Ireland and england struggling together in one union, using anti-‘brit’ nationalism!

    spiller2: i dont think english workers should have a say here unless they work here and vice versa. Its called being independent

    cianpop:: Fair enough. I’d disagree, I think unity of workers internationally, eu-wide union federations etc is good.

    ENDS

  2. Khalid Farouk

    September 4, 2009 10:24 pm

    What Joe’s references above show is that the Bureau interpretation is now being given a legal status under Lisbon. Lisbon therefore clearly gives a treaty status and further backing to the logic of putting the rights og big business over the rights of workers.

    Another important aspect to the treaty that has not been given too much publicity is the putting the stability pact into the treaties. The pact means that a govenment can only run a deficit of 3%. This means that when tax takes are down then governments must cut spending. It essentially makes old style keynesian intervention illegal and forces countries to adopt neo liberalism. How can IBEC, Labour, FF etc claim that this will create jobs?! It is this policy that is throwing fuel on the deflationary spiral in Ireland and causing 100s to be added to the dole every day.

    About time we had a Europe which is run in the interest of the millions not the millionaires. Throw out Lisbon on Oct 2 and lets build a real workers Europe and world!