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In actual fact, the Charter as written in 2000 has now been superseded by the Charter published in 2007 (available here with the explanation)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