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From Internal Market Regulation to European Labour Law

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From Internal Market Regulation to European Labour Law From Internal Market Regulation to European Labour Law by Jari Hellsten Master of Law Doctoral dissertation to be presented for public examination in Hall PIII, Yliopistonkatu 3, on 14th December 2007, at 12 o’clock, by permission of the Faculty of Law in the University of Helsinki ISBN 978-952-92-2840-9 (paperback) ISBN 978-952-10-4248-5 (PDF) Helsinki University Print Helsinki 2007 Contents Preface and Acknowledgements II First Article: On Social and Economic Factors in the Developing European Labour Law; Reasoning on Collective Redundancies, Transfer of Undertakings and Converse Pyramids III + 67 Second Article: On the Social Dimension in Posting of Workers; Reasoning on Posted Workers Directive, Wage Liability, Minimum Wages and Right to Industrial Action VII + 139 Third Article: On the Social Dimension in the Context of EC Competition Law; Reasoning on Albany, Article 86(2) EC, and the Finnish Earnings-Related Pension Scheme TEL under Article 86(2) VII + 90 Fourth (Synthesis) Article: From Internal Market Regulation to ordre communautaire social; Reasoning on European Labour Law II + 121 “Labour is not a commodity.” Preface and Acknowledgements The author’s interest in EU law was originally generated by participation in European law-making in 1992-1998 as an officer of the European Federation of Building and Woodworkers. We worked for an acceptable Posted Workers Directive that would cover cross-border posting of workers in the framework of freedom to provide services. In that job, I realised how significant the role of the Court of Justice in law-making was. The famous obiter dictum in Rush Portuguesa (later followed by Vander Elst) on the Member States’ right to extend their laws and collective agreements to workers posted into their territory temporarily was our defence against a compulsory threshold period in applying the host state wages and other terms and conditions of employment to the posted workers. We acted against social dumping. The welfare and interests of construction workers’ had been close to my heart since the beginning of my professional career in 1975 in the Construction Workers’ Union (Finland). However, promoting their interests in Europe was radically different from my previous experience at the national level. This law- making required general understanding of the legal status and consequences of EU directives, and in particular of positioning of the Posted Workers Directive under the legal umbrella of free provision of services. Our struggle for a decent posting directive was of general importance, I dare to say, was successful and helped in producing the outcome in 1996. After returning to Finland, a book, Collective Agreement and Competition Law in the EU (DJØF, Copenhagen 2001), edited and partially written jointly with Professor Niklas Bruun, enriched my vocation in legal scholarship. However, for numerous reasons I was not able to start a thorough research project concentrating on the relationship between internal market law and European labour law until 2004. Since the beginning in June 2004, I have worked under his tutorship in this project entitled ‘From Internal Market Regulation to European Labour Law’ which, when the second publication was nearing its maturation, led to the decision to submit the outcome of the whole study project as my doctoral thesis. Conducting this study has been above all a learning process, and in the first article (publication) I realised that it is more useful to write more elaborately on selected items than one person trying to shape ‘everything of interest’. This ‘deep but not broad investigation’ then resulted in the first publication, especially in the conviction that the Transfer of Undertakings (Acquired Rights) Directive also applies to cross-border transfers, and so within groups of companies. Thus, it is very educative to see the fruits of one’s own life-long learning. In the same publication my reasoning on the theory of converse pyramids generated the ambition to come up later with a re-thought theoretical conceptualisation of European labour law and its positioning in the legal Union. The first three chapters of the second publication (on posting of workers) naturally have their roots in my European service. The fourth chapter was again a question of life-long learning. That attitude was necessary in writings on the right to collective action that penetrated the II study plan in the form of the Laval case and imposed the shape of the basics of a European right to collective action, Laval being later followed by the strike case The International Transport Workers’ Federation and The Finnish Seamen’s Union v Viking. Writings on the right to strike again imposed ‘spill-over’ learning in the necessity to understand the basics of the effect of (general) international law in EU law. The third publication broadly followed the study plan, while there, too, the more concentrated approach led to a refined understanding of the interplay between the ‘general economic interest’ in the wording of Article 86(2) and the particular social tasks of general interest already covered by that provision in case-law. The Laval and Viking strike cases later also pushed for an approach beyond the original study plan in the synthesis article. It became essentially more than a mere synthesis, seeking to lay the foundations of a new collective EU labour law paradigm. It hopefully pushes the necessary debate on the European Community labour law further. * * * Thanks and acknowledgements are appropriate at the end of this research project. First and foremost, without the institutional and intellectual support of Professor Niklas Bruun since preparing the project and resolving its various problems, this study would have been radically more difficult to carry out, if not impossible. I also warmly thank the five anonymous national referees who gave their recommendations on the original study plan. I also want to thank Professor Brian Bercusson cordially for acting not just as my opponent, but also as a preliminary examiner who made many valuable comments. His academic works have also given me much inspiration and support. Likewise, Professor Tuomas Ojanen has directed me, especially in the challenging and developing field of fundamental rights, not only as a preliminary examiner but also through his comments and encouragement throughout. Financing the study is a result of the Finnish tripartism, meaning contributions by the tripartite and law-based Finnish Work Environment Fund (which is financed by the private sector employers), the Ministry of Labour, and a considerable number of trade union organisations. In guaranteeing the financing, Mrs. Kirsti Palanko-Laaka, former head of the work environment department of SAK, the Central Organisation of Finnish Trade Unions, had a prominent role. Pekka Hynönen (who once made me a lawyer), former chairman of the Construction Trade Union, was obviously the first to promise a trade union contribution for the project. Jorma Rusanen from SAK later found further trade union contributions. At the Ministry, Matti Salmenperä, its then leading labour law officer, saw the study’s importance and Jouni Lemola later led the Ministry steering group. Ilkka Tahvanainen at the Work Environment Fund has always supported the project, even when delayed. The trade union organisations contributing to the study financially are (in alphabetical order): AKAVA, the Confederation of Unions for Professional and Managerial Staff in Finland; the Central Organisation of Finnish Trade Unions, SAK; the Chemical Workers’ Union; the Construction Trade Union; the Finnish Confederation of Salaried Employees, III STTK; the Finnish Metalworkers’ Union; the Finnish Paper Workers’ Union; the Finnish Public Services Unions’ EU Working Party (FIPSU); the Finnish Seamen’s Union; the Service Union United, PAM; the Transport Workers' Union, AKT; the Union of Professional Engineers in Finland, UIL; the Union of Salaried Employees, TU and the Wood and Allied Workers Union. I am grateful to all those responsible in their various unions. On this occasion, I also recall with pleasure the many debates during my years in Brussels with Rosendo Gonzalez Dorrego, Paul Windey, Jean-Jacques Paris and Mikko Huttunen (including his more recent comments and encouragement) from the European Commission, who all stimulated my European law exercises. David Lanove, as an honourable employer representative, showed the value of genuine European social partnership. Ove Bengtsberg, Jan Cremers, William van der Straeten and Frank Leus have been true friends and colleagues in the European Federation of Building and Woodworkers. Some of the debates with these friends and colleagues reached even the effect of photogrammetry in explaining case-law. On the national scene, Olavi Sulkunen (deceased 2005) encouraged dealing with the right to collective action in a European context through a European and international approach. In the third article (at TEL, the pension scheme) I was able to rely on professional feedback from Jukka Rantala, Mrs. Riitta Korpiluoma, Mrs. Kaija Kallinen, Pertti Parmanne and Matti Leppälä. Otherwise Petteri Ojanen, Markus Penttinen, Heikki Pohja, Kyösti Suokas, Simo Zitting, Markku Kiikeri, Heikki Lehtinen, Anders von Koskull, Juri Aaltonen and Professor Kauko Wikström have variously shared my (sometimes our joint) European problems over the years. I also gratefully thank the Library of the Finnish Parliament, where Mrs. Hilkka Salasmaa at the Interlibrary Loans Service especially
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