Recent Developments in International Labor Law

CONTENTS

CHAPTER ONEFREEDOM OF MOVEMENT OF WORKERS IN EUROPEAN UNION
1. INTRODUCTION
2. FREEDOM OF MOVEMENT OF WORKERS
2. 1Direct effect of article 39 TEC
2.2 Rights of migrant workers
3. ASSOCIATION AGREEMENTS
3.1. Association Agreement with Turkey-background
3.2 The role of the European Court of Justice in interpreting the Agreement with Turkey
3.3 The right of family reunification of Turkish workers
4. TRANSITIONAL AGREEMENTS
4.1 Definition and scope
4.2 Previous experience
5 POSTING OF WORKERS REGULATION
5.1 EU posting of workers
5.2 Rulings of the European Court of Justice

CHAPTER TWO
2. EQUAL PAY RULES IN EU LAW
2.1 Introduction
2. 2 Indirect discrimination based on gender
2.3 Objective justification in cases of indirect discrimination
2.4 Positive actions in the EU legislation
2.5 Harassment Definitions
2.6 EU Labour Law and Disability Policy

CHAPTER THREE
3. INTERNATIONAL LABOR ORGANIZATION
3.1 BACKGROUND
3.2 STRUCTURE
3.3 ACTIVITIES

Appendix: International Labor organization Constitution

CHAPTER ONE FREEDOM OF MOVEMENT OF WORKERS IN EUROPEAN UNION

INTRODUCTION

The basic idea for creating the European Union is the Internal Market where free movement of people, capital, services and goods is established. The creation of the Internal Market is the central raison d’etre of the EU existence. The freedom of movement of people is one of the four freedoms of the Internal Market. The right to move is the basic right of the European citizens. The realization of this freedom was harder than practicing the free movement of capital, services and goods. Therefore, the European Union is still taking subsequent actions for realization of the freedom of movement of people. At the beginning, the freedom of movement of people was available just for the working population, but latter on the freedom of movement included all the categories of citizens, students, retired people and people who are not economically active.

Throughout the years European Union makes efforts to change the approach towards the third country nationals, especially the working population as one of the conditions for fulfillment of the Lisbon Strategy goals.

The European Union adopted important primary, secondary law and case law of the European Court of Justice such as the Association Agreements regulating the freedom of movement of third country workers. These Association Agreements with Third Countries provide articles for free movement of third country workers in the European Union and vice versa. For a long time, the Association Agreements are the basic law regulating the freedom of movement of third country workers. The European Court of Justice played important role in interpreting the articles for freedom of movement of workers and giving direct effect in the national laws of the Member States.

In the last two years European Union has adopted secondary law for improving the status of third country workers especially for highly qualified workers. The entrance of highly qualified workers in the Member States is important for realization of the economic growth and development, such as decreasing the unemployment rate.

II.FREE MOVEMENT OF WORKERS IN EU

2.1 Direct effect of article 39 TEC

Central legal questions concerning free movement of workers are:

- direct effect of article 39 from the Treaty establishing the European Community,
- the meaning of the term migrant worker,
- certain rights of the family members of the migrant worker,
- such as the reserved places in the public sector for national workers.

The Treaty on European Union establishes European citizenship thus giving certain rights and obligations to the European citizens and limited rights and obligations to non-EU citizens. The Treaty of Amsterdam moves important issues regulating the status of non-EU citizens from third to the first EU pillar thus becoming part of the acquis communautaire. The European Court of Justice played an important role in interpreting the meaning of article 39 on the free movement of workers. The Court constantly points to the meaning of the free movement of workers and realization of the principle on non-discrimination based on nationality. Article 12 of the TEU explicitly forbids any form of discrimination based on nationality when putting into practice the Treaty articles. The Council of Ministers has jurisdiction in compliance with article 251 to adopt acts forbidding discrimination based on nationality. The definition of the term worker was a major interest to the European Community. In the case Hoekstra ¹, the European Court of Justice has interpreted that the definition of the term worker is not a question of the national law of the Member State, but it is in the interest of all Member States to interpret this term uniformly. Interpreting this term uniformly means that it is crucial for establishing the Internal Market. The most important goal of the Internal Market could not be achieved if the term migrant worker is defined by the national law of each Member State. Two questions are most important in this judgment. First, the Court gives the term migrant worker communitarian meaning which means that the Court gives directions for its application in the Member States. The second important meaning of this judgment is that the Court interprets this term extensively because the realization of the free movement is one of the four freedoms and condition sine qua non for realization of the internal market.

Full text of article 39 TEC

1. Freedom of movement of workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regard employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

– (a) to accept offers of employment actually made;
– (b) to move freely within the territory of Member States for this purpose;
– (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that state laid down by law, regulation or administrative action;
– (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

- 4. The provisions of this Article shall not apply to employment in the public service.

2.2 Rights of migrant workers

Article 39 of the EC Treaty entails important rights for migrant workers when moving from one to another Member State:

- the right to look for a job in another Member State;
- the right to work in another Member State;
- the right to reside there for that purpose;
- the right to remain there;
- the right to equal treatment in respect of access to employment, working; conditions and all other advantages which could help to facilitate the worker's integration in the host Member State.

III. ASSOCIATION AGREEMENTS

The status of non-EU workers was also an important issue for the European Union. Basically, this was regulated with bilateral agreements between the European Community on one hand and the country of origin of the worker on the other. The Agreements for Cooperation and Association are based on article 310 of TEC. According to Association Agreements, non-EU citizens have privileged status as workers or self-employed in the Member State of the European Union.

The European Community has signed the following Association Agreements:

- Association Agreement between the European Economic Community and Turkey, including the Additional Protocol
- Association agreement with Algeria, Morocco and Euro-Mediterranean Agreements with Tunisia such as with Egypt, Syria, Lebanon and Jordan
- Lomé Conventions
- Europe Agreements signed with Hungary, Poland, Slovakia, Czech, Romania, Bulgaria, Estonia, Latvia, Lithuania and Slovenia
- EEA Agreement
- Euro-Mediterranean Agreements with Morocco, Israel and Jordan regulating illegal migration (these agreements provide articles for readmission of domestic citizens who reside illegal in the country party of the agreement)
- Agreement for Cooperation signed between European Community and Switzerland

3.1. Association Agreement with Turkey-background

The country first applied forassociate membershipin theEuropean Economic Communityin 1959, and on 12 September 1963 signed the "Agreement Creating An Association Between The Republic of Turkey and the European Economic Community", also known as theAnkara Agreement. This agreement came into effect the following year on 12 December 1964. The Ankara Agreement sought to integrate Turkey into a customs union with the EEC whilst acknowledging the final goal of membership.In November 1970, a further protocol called the "Additional Protocol" established a timetable for the abolition of tariffs and quotas on goods traded between Turkey and the EEC.

On 14 April 1987, Turkey submitted its application for formal membership into the European Economic Community. TheEuropean Commissionresponded in December 1989 by confirming Ankara's eventual membership but also by deferring the matter to more favorable times, citing Turkey's economic and political situation, as well itspoor relations with Greeceand theconflict with Cyprusas creating an unfavorable environment with which to begin negotiations.This position was confirmed again in the Luxembourg European Council of 1997 in which accession talks were started with central and eastern European states and Cyprus, but not Turkey. During the 1990s, Turkey proceeded with a closer integration with the European Union by agreeing to acustoms unionin 1995. Moreover, the Helsinki European Council of 1999 proved a milestone as the EU recognized Turkey as a candidate on equal footing with other potential candidates.²

3.2 The role of the European Court of Justice in interpreting the Association Agreement with Turkey

The European Court of Justice played important role in interpreting the Association Agreements, articles and decisions adopted by Association Council. Member States were unanimous on the Court’s ruling that the Association Agreements are becoming part of the legal order of the Community after entering into force. The Court, in compliance with article 177 of the Treaty has jurisdiction to interpret the Association Agreements regarding the uniform application of the acquis communitaire in the Member States. The Court has jurisdiction on preliminary ruling for applying the agreements.³

In the case Demirel⁴, European Court of Justice, ruled that:

“…in compliance with article 238, the Community must fulfill the obligation upon non-member states in all areas covered by the Treaty. Because the freedom of movement of workers is regulated with article 48 of the Treaty establishing the European Community, the obligation for free movement of workers are under the competence of the Community.”

Therefore, the Court ruled:

“…its jurisdiction must not be questioned because of the fact that in the area of free movement of workers, Member States create all the rules that are necessary to give effect on the Association Agreements on the territory of the Member States or decisions adopted by Association Council.”

The Turkish court in the procedure of preliminary ruling raised two questions to European Court of Justice: The first question being on the direct effect of Article 12 of Association Agreement between Turkey and European Community and article 36 of Additional Protocol in national law of Member States. The second question referred to the right of family reunification of Turkish workers covered by the Association Agreement. The European Court of Justice ruled that article 12 of Association Agreement with Turkey and article 36 of Additional Protocol interpreted in light of article 7 of the Treaty, are not directly applicable in the legal order of the Member States. In reference to the second question regarding the right to family reunification, the Court ruled that free movement of workers means that the spouse and children of Turkish workers may accompany the worker in the Member States where he/she resides and works. This ruling of the Court was based on Decision 1/80 adopted by Association Council created with Association Agreement. This Decision provides that Turkish workers duly registered on the labor market of the Member State have equal treatment in respect to access to employment.

In the case Greece v. Commission⁵, the Court ruled that Decision 2/80 adopted by Association Council is part of the legal order of the Community. Therefore, the Court examined the relation between Association Agreement and the Association Council’s decisions. In the case Taflan-Met,⁶ the major issue was the application of the scheme for social insurance of the Turkish workers and members of their families in the EU Member States. Danish court ruled that the applicant may qualify for benefits according the Decision 3/80 of the Association Council based on Association Agreement between Turkey and European Community. It was not precise for the Court whether the Decision 3/80 has entered into force because there was no specific date mentioned. The European Court of Justice ruled that Decision 3/80 entered into force on the day of its adoption, thus is obligatory for the both signatory parties. In regard to the second question, the Danish court in the procedure for preliminary ruling asked for interpretation of direct effect of article 12 and article 13 of Decision 3/80 of the Association Council in the national Danish law. The Court ruled that the articles of the Decision 3/80 are not precise and therefore it is necessary that the national institutions adopt subsequent measures for implementation of the Decision 3/80.⁷ Articles 12 and article 13 of Decision 3/80 do not comply with the conditions for direct effect stipulated in case Van Gend and Loos.⁸ This was the first case on direct effect of the Community law and one of the most important judgments of the Court. In this case Court ruled the conditions for direct effect applicability of article regarding a) the article must be clear and unambiguous b) it must be unconditional c) its application must not be conditional of subsequent action by Community or national laws. The European Court of Justice ruled that Association Agreements and the connected instruments of the Association Council are an integral part of Community law. Following the jurisprudence of the Court of Justice, citizens of Member States parties may invoke articles of the Association Agreements and the decisions of the Association Council adopted in compliance with the goal and aim of the Treaty, if the article is clear and precise and is application is not questioned by adoption of subsequent measures of the parties.

The most important articles in the Association Agreement between Turkey and European Community are:

- Article 12 of the Association Agreement which obligates the both parties in application of the articles 39, 40, 41 of TEC for free movement of workers;

- Article 36 of the Additional Protocol which provides for progressive application of the free movement between the 12 and 22 years after entering into force of the Association Agreement

The European Court of Justice ruled that several articles of the decisions adopted by Association Council have direct effect:

- article 2 (1) (b) and article 7 of Decision 2/76;
- article 6 (1), 7 and 13 of Decision 1/80;
- article 3 (1) of Decision 3/80;
- article 12 of Decision 2/76

[...]

¹ Case Hoekstra v Bestuur der Bedrijfsverening voor detailhandel en Amachten 6 ECR 177

² https://en.wikipedia.org/wiki/Accession_of_Turkey_to_the_European_Union#1950s%E2%80%931990s

³ ECJ, judgment of 30 April 1974, Case 181/73, Haegeman v Belgium 1974 ECR 449 paras 5, 6

⁴ Case 12/86 Meryem Demirel v Stadt Schwabisch Gmund (1987), ECR 3719, such as the case Haegeman v Belgium, Case 181/73 (1974), ECR 449.

⁵ Case 30/88, Greece v. Commission, 1989, ECR 3711 para 13

⁶ Case C-277/94 Z.Taflan-Met

⁷ Important Judgments Delivered by the Court of Justice of the European Communities in the Period1 May to 1 October 1996, Imelda Higgins and Jesper Svenningsen , EIPA Antenna Luxembourg, http://aei.pitt.edu/855/01/4.htm

⁸ Case 26/62, 1963 ECR 1. More for the direct effect in Hartley C. T. “The Foundations of European Community Law”, Oxford University Press, 2003, pp. 197-202.