Commission Green Paper on labour law and the challenges of the 21st century

The aim of this article is therefore to review the Green Paper from a Nordic perspective in order to make the prevailing sceptical attitudes understandable.

The main focus in the Green Paper is to look “at the role labour law might play in advancing a “flexicurity” agenda in support of a labour market which is fairer, more responsive and more inclusive”. It focuses especially on the existing legal and contractual framework for the legal definitions of employment and self-employment, and asks whether greater clarity is needed in Member States´ legal definitions of employment and self-employment.
Furthermore it asks whether basic rights are needed for all workers regardless of their form of contract.

Focus on individual (personal) labour law

The Green Paper declares that its “focus is mainly on the personal scope of labour law rather than on
issues of collective labour law”. All references to collective agreements are in the spirit of Question 6: what role might collective agreements play in promoting the flexible individual employment agenda?
The experiences from Nordic labour law generally tells us that balanced agreed flexible solutions (local agreements, flexible working time arrangements etc.) have been best achieved by collective agreements not only introducing flexibility, but also promoting security for employees in one way or another.
From a Nordic perspective a way towards achieving a balanced flexibility would therefore be to support and reinforce collective bargaining in Member States with weak structures in this respect. There is nothing about the possible function of EU law in this respect in the Green Paper, it seems that “modernising (EU) labour law” can be interpreted to mean transforming collective labour law into individual labour law. Such a perspective represents a nightmare especially for Nordic trade unions.

EU harmonisation of the legal definitions of an employment relationship?

The industry organizations and governments in the Nordic countries have criticised the ambition in the Green Paper to  harmonise key definitions in labour law as employment and self-employment. This proposal does not seem very realistic
and can also be questioned from subsidiary considerations.
On the other hand there clearly are some specific internal market situations in the context of free movement of services where differences in the definitions included in an employment contract can be misused by entrepreneurs operating in several countries.

This issue is actually addressed in the ILO (International Labour Organisation) in its Recommendation 198 that was adopted in 2006. In this recommendation Members are encouraged to adopt effective protection for and prevent abuses of migrant workers in the context of the transnational movement of workers.
Taking into account that all EU Member States voted in favour of the adoption of ILO Recommendation 198, this could form a reasonable basis for regulating the specific trans-national problems. A general harmonization of definitions of employment seems to be not only politically unrealistic, but also very difficult to justify.

Some conclusions

The achievements of the Barroso Commission in the area of labour law has been very modest so far.
The Green Paper does not give an impression that the Commission has any clear agenda in this field. The author really feels that there are still concrete measures that are needed within the area of EU labour law, and that the Commission should concentrate on these. After the adoption of the Services Directive in 2006 there is an increased need to harmonise the minimum protection of temporary agency workers.
That might be achieved by promoting the Commission's proposal of a Directive on temporary agency workers, and there is also an urgent need to revise the Working Time Directive.