A death blow for the social dialogue as a constitutional mechanism in the EU?

In an article in the newsletter, labour law expert Niklas Bruun lists all the consequences of the ruling in the so-called EPSU case at the EU Court of Justice.  

EPSU is an umbrella organisation for more than 200 trade unions representing more than eight million workers in the public service sector. It is the largest federation within the European Trade Union Confederation ETUC. 

In 2015, EPSU entered into an agreement within the framework of the European social dialogue with its counterpart, the employers’ organisation EUPAE. This covered employees’ and trade unions’ right to be consulted and informed during times of company cuts and restructuring.

The social pillar

They expected that the agreement would lead to the EU Commission proposing a directive, as stipulated in Principle 8 of the EU Pillar of Social Rights which was agreed at the 2017 Gothenburg EU summit.

It is true that the declaration cannot be interpreted as European law, but rather as non-binding political declarations where member states and the union’s institutions describe which measures they support politically. But the expectation is that some of these declarations at a later stage should be made into directives by the EU Commission. 

The Commission has, however, refused to address the agreement between EPSU and EUPAE. EPSU, therefore, took the Commission to court for breach of the Treaties.

“The lowest court, the Tribunal, showed some sympathy for EPSU when treating the case. It did not feel the way the Commission had proceeded had been completely correct and ruled the Commission had to pay its own legal expenses,” writes Niklas Bruun. 

EPSU’s appeal rejected

But in the EU Court’s final ruling, all of the EPSU’s arguments were rejected. Questions that might have been crucial to the Commission were not addressed at all, point out Niklas Bruun.

“The ruling seems to mirror the new legal activism which I seem to detect in the EU Court’s praxis. Here it seems it is doing its utmost to strengthen the Commission’s and the Court’s powers within the EU system, and to expand their authority.  

“This has been visible in several rulings. In the Court’s case, not least in how it approaches cooperation with the European Court of Human Rights in Strasbourg,” he writes, and ends his article with a comment:

“There is every reason to ask oneself how well these policy directions will serve the European project in the long term.”