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2 October 2008 Edition

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This news feature is funded by the European United Left/Nordic Green Left (GUE/NGL)








EP ‘Socialists’ oppose social progress in treaties

PROINSIAS DE ROSSA’S Party of European Socialists voted against the “social progress clause” proposed by the European Trade Union Confederation (ETUC) during a meeting of the Employment and Social Affairs Committee on 22 September.
The Committee was adopting a report on Collective Agreements in the EU, drafted by the committee chair, Swedish social democrat Jan Andersson. The report is being prepared in response to rulings of the European Court of Justice over the past 10 months in relation to the rights of workers and trade unions. The first draft prepared by Andersson raised the possibility of a social progress clause being put into the EU treaties in order to ensure that fundamental rights of workers take precedence over market freedoms.
Mary Lou McDonald and the GUE/NGL group on the Committee put forward a social progress clause, in line with the proposal of the ETUC, to include:-
•    The right to take industrial action;
•    The right to conclude collective agreements going beyond minimum wages and minimum standards;
•    That the EU treaties not be used to prevent member states from adopting higher social standards than the minimum laid down in EU directives;
•    That member states’ social policy and industrial relations systems should take precedence over the internal  market.

Not only did the Party of European Socialists help vote the proposal down, they also made an agreement with the European People’s Party (Fine Gael) group which removed all reference to the possibility of such a clause.
Instead, the report supports the European Court of Justice’s general approach that there should be a “balance between fundamental rights and economic freedoms”.
Mary Lou McDonald MEP said:
“This is absolutely the wrong signal. If parliament accepts this flawed notion of a ‘balance’, fundamental social rights can always be restricted. If fundamental rights are to remain fundamental in the future, then wherever there is a conflict between fundamental rights and the internal market the fundamental rights must have absolute primacy. This principle is at the core of trade unions’ demand for a social progress clause.”
McDonald added:
“The ‘No’ vote in Ireland has provided the time and the space for a revision to the treaties in order to address this issue. The committee has missed the opportunity to call for workers’ rights to be enshrined in EU treaties. The majority of members have preferred to close their eyes and ears to the Irish people and welcome the treaty without taking on board any of the very real concerns with regard to workers’ rights raised during the Irish referendum campaign, concerns which are echoed within the trade union movement across Europe.”



What has the European Court of Justice ruled?

Four cases brought before the ECJ are of particular interest:–

Viking Line
The Finnish shipping company operates a ferry service between Helsinki and Tallinn. The intention was to reflag the vessel to Estonia so that Viking Line would no longer have to pay Finland’s collectively agreed wage rates but could instead engage a ‘cheaper’ Estonian crew. The Finnish seamen’s union threatened to take industrial action to prevent this and was actively supported in its efforts by the International Transport Workers’ Federation (ITF) as part of its general fight against reflagging to low-wage countries.
The unions demanded that in the event of reflagging Finnish law should continue to apply, the Finnish crew should not be laid off and a collective pay agreement should be concluded in accordance with Finnish legislation.
Viking applied for a restrictive injunction to be placed on both unions at the London headquarters of the ITF. The ECJ ruled on 11 December 2007 (C-438/05) that, in this case, industrial action would constitute an infringement of an undertaking’s right of establishment as guaranteed under Article 43 of the EC Treaty and would constitute a disproportionate measure in this dispute about reflagging.

The Swedish town of Vaxholm had commissioned the Latvian company Laval to refurbish a school building. Laval was not prepared to pay Swedish wages for the work carried out on site. As a result the Swedish unions blockaded the worksite with the aim of forcing the Latvian company to negotiate a collective agreement. The ECJ ruled on 18.12.2007 (C-341/05) that in this case the union action would infringe the right of undertakings to provide services, as guaranteed under Article 49 of the EC Treaty, and that it was therefore unlawful. It further ruled that under the freedom to provide services it was no longer permitted to force a non-resident company to pay more than the minimum wage.

In a call for tender issued by the authorities of Lower Saxony the company Objekt & Bauregie was awarded the contract to build a new prison in Göttingen-Rosdorf.
The company then engaged a Polish sub-contractor to do this work, paying the workers on site only about 47 per cent of the collectively agreed minimum wage for this sector. However, contract award regulations applying in Lower Saxony prescribe that, in the case of public contracts, the salaries paid must at least comply with the locally-agreed rates for the industry. The regional authorities therefore terminated the agreement with the principal contractor, which then went to court claiming damages.
The Regional Appeal Court suspended the proceedings and requested the European Court of Justice to determine whether the public procurement law was compatible with the freedom to provide services. The ECJ ruled on 3 April 2008 (C-346/06) that in this case the wage trust regulations of the Public Procurement Law of Lower Saxony which require compliance with regional collective agreements constituted a restriction to the freedom to provide services and was an infringement of the EU Posting of Workers Directive.

On 19 June 2008, the ECJ presented its ruling on the complaint brought by the European Commission against the Grand Duchy of Luxembourg (C-319/06) with regard to the EU Posting of Workers Directive.
Luxembourg was accused by the commission of making excessive demands on non-domiciled companies from the territory of the EU. Was Luxembourg entitled to request that these undertakings comply with its national laws on written contracts of employment, index-linking, part-time working and fixed-term contracts?
The case also related to a number of regulations that were designed to make it easier to monitor the activities of the sending company in its new place of operation, including the condition that the undertaking must nominate an authorised representative in Luxembourg who would hold all the relevant documents ready for inspection.
In its ‘guidelines’ on the EU Posting of Workers Directive, the European Commission had already made it clear that a number of controlling regulations of this kind had to be abolished. The Advocate-General’s summation agreed with the commission’s complaint in many respects and took the same course as the rulings given in the Viking Line, Laval and Rüffert cases. However, what is particularly interesting is that the judgement was deliberately postponed from May to 19 June 2008 so as not to cause even more disquiet before the Irish Lisbon Treaty referendum.
The ECJ upheld the Commission’s complaint in all its essential points: Luxembourg could no longer insist that posting companies from the territory of the EU comply with its national laws on the submission of written contracts of employment, on part-time working, on fixed-term contracts, on the validity of collective wage agreements and on the automatic linking of payments and minimum wages to price trends (index-linking).
Moreover, Luxembourg was deemed to be at odds with the EU Posting of Workers Directive by demanding that the non-resident undertaking appoint an authorised representative domiciled in the Grand Duchy.
In rulings the ECJ has simply referred to the current EC treaty rather than existing EU directives in support of its line of argument. The Treaty of Lisbon, in its references to competition and the internal market, contains no provisions that in any way amend the current EC treaty.


Fuel poverty hits worst-off hardest, says de Brún

MEP Bairbre de Brún has backed calls from the European Parliament for concrete action to be taken to reverse rising energy prices and to protect the most vulnerable this winter.
“Already my colleague, Martin McGuinness, has come forward with detailed, realistic steps to protect our most vulnerable from rising gas, fuel and electricity prices. I am happy to see the European Parliament raising this issue in Brussels as well,” said the Six-County MEP.
“National and regional authorities need to urgently bring forward action plans before it’s too late.
“Oil prices have dropped recently but this drop has not been passed on to consumers who rely on oil as their main source of heating. In the medium term, a shift to renewable sources of energy, coupled with increased energy efficiency, will help protect ourselves from the inevitable swings in prices that come with reliance on fossil fuels. But, in the here-and-now, concrete action is needed to relieve and eradicate fuel poverty.”
While advocating increased energy efficiency, de Brún did take issue with parliament’s call for a complete liberalisation of the energy market as being part of the solution.


The EU Charter of Fundamental Rights: a ray of hope on the horizon?

MANY people justified their support for the Lisbon Treaty with reference to the EU Charter of Fundamental Rights and its supposed protection of fundamental rights. However, the economic and social rights contained in the charter are poorly formulated and give neither the EU nor the member states any pretext for legislative initiatives or directives based on the charter. The right to strike is only recognised according to national traditions and regulations (thus not adding in any way to existing rights), and only “in accordance with Community law”. ECJ case law has now clarified what this seemingly harmless clause means.
Even worse, Article 53 of the charter explicitly states:
“Nothing in this charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms” (our emphasis).
This means that the fundamental freedoms of the internal market are put on a level with human rights and fundamental rights. This confirms the ECJ’s position of having to draw a balance between fundamental freedoms and fundamental rights. The explanations of the charter, which have been submitted to the ECJ for the purpose of legal interpretation, stipulate in regard to Article 52 of the charter (scope and interpretation of rights and principles) that “restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market’, while in regard to Article 16 (freedom to conduct a business) the explanations state, among other things, that this is based on “TEC Article 4(1) and (2), which recognises free competition”.

The fuse has been lit
The campaign to remove ‘bureaucratic obstacles’ in a liberalised EU services market by way of the decisions of the ECJ has now started at a point (right to strike, free collective bargaining, requirements to comply with collective agreements, etc) that trade unions had not expected. They imagined that they were safe because these issues had ‘in principle’ been removed from the EC Treaty and also from the Services Directive.
The attacks via the EU and ECJ continue in other areas in the years ahead. ‘Cost-conscious undertakings’ would have to be fairly stupid, given the very favourable prospects for success, not to bring actions before the ECJ or lodging complaints with the European Commission.
Something that the GUE/NGL Group in the European Parliament warned about during the debates on the adoption of the Services Directive – the removal of the social requirements and provisions of the member states through recourse to the ECJ – has now become a reality and this is merely the prelude.
• The analysis of the European Court of Justice rulings draws on Der Europäische Weg zur Knechtschaft Wie der Europäische Gerichtshof das Streikrecht aushebelt, by Klaus Dräger/Janeta Mileva. First published in Sozialismus, 7 August 2008.


Mary Lou speaks at largest left-wing festival in Europe

MARY LOU McDonald brought the message of the Irish ‘No’ vote to the French public in a series of engagements at the largest left-wing festival in Europe, the Fête de l’Humanité, in Paris on 13 September.
Widely recognised in France for her role as Sinn Féin spokesperson during the referendum campaign, McDonald was in great demand at the festival.
The fête, organised by the left-wing newspaper l’Humanité is an important event on the French and international political calendar attracting parties and movements from all over the world who use the occasion to spread awareness among the French public about their respective struggles as well as sharing experiences with each other.
During the festival, Mary Lou McDonald appealed to French elected representatives to “please let it be known that you want universal suffrage, as expressed in Ireland with the ‘No’ vote on 12 June, to be respected”.
In order to take up this call, the European network of progressive local elected representatives, REALPE, has decided to launch a broad European appeal. Signatures collected online will be forwarded to Nicolas Sarkozy, president in office of the European Council, before the council to be held in Brussels on 15/16 October.


European Social Forum defends workers’ rights

THE European Court of Justice rulings were one of the big issues discussed during the European Social Forum, which took place in Malmö, Sweden, from 17-21 September.
A thematic seminar running over three mornings of the forum, involving hundreds of activists from trade unions and social movements, analysed the impact of the rulings and recommended a series of actions to defend workers’ rights in light of the rulings.
Among other things those present at the seminar called for were a halt to the ratification of the Lisbon Treaty until this matter is fully resolved and called for the ratification process to be used as leverage for the introduction of a social progress clause to EU treaties.

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