January 22, 2014
A person whose rights are specified in a directive not properly implemented and who is in conflict with another private party cannot rely on the directive before the court. If the rights are not precisely named in the Charter, the only option is to claim compensation from the state that failed to adopt appropriate national provisions.
The case C-176/12 Association de médiation sociale v Union locale des syndicats CGT concerned the rights of workers. A French court asked the Court of Justice of the European Union whether an article of the EU Charter of Fundamental Rights further specified in a directive, can be relied on in a dispute between private parties, and whether national provisions contrary to the directive should be disapplied.
According to the Charter workers have the right to information and consultation. These rights are governed in Article 27 of the Charter and specified in a directive that established a framework for informing and consulting employees.
According to the directive when an undertaking reaches a certain threshold of employees (enumerated in Article 3 of the directive) staff representatives must be elected or a union representative must be designated. The EU directive has to be implemented by Member States. The relevant French law provides that some categories of employees are excluded from the calculation of the staff number.
AMS – a French association argued that in the process of designating the representative the number of staff was overrated. The opinion was based on the French law. Mr Laboubi, who was the chosen representative, together with the unions claimed, on the other hand, that French law violated the EU law, which, according to them, does not allow exclusions.
In its judgment the Court held that French provisions implementing the directive are indeed flawed – the Court decided that the EU law does not allow the exclusion of certain groups of workers when calculating the number of staff.
According to general rules, when articles of the directive are unconditional and precise enough they can have a direct effect. In the discussed case, the provisions of the directive could have a direct effect – they are both unconditional and precise. However, since the conflict takes place between two private parties, the unions cannot rely on the directive to claim their rights. In such a case the AMS would face negative consequences and would have additional obligations because of the failure of the state to properly implement the directive. This would be against the established rules of EU law.
At the same time, the provision of the Charter – Article 27 – that gives workers the rights to information and consultation, on its own, is not precise enough to rely on it in order to conclude that national provisions that exclude some groups from the number of staff should not be applied. Consequently, a person whose rights are specified in a directive not properly implemented and who is in conflict with another private party cannot rely on the directive before the court.
Zuzanna Warso, firstname.lastname@example.org
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Author : Europe of Human Rights