EU Legislative Competence in Labour Law and Worker Rights

EU Legislative Competences in Labour Law

Article 4: Shared competences between the Union and Member States in the area of social policy. Article 19: Equal treatment. Article 46: Free movement of workers. Article 153: Social policy. Article 157(3): Equal treatment of men and women. Article 352: Other appropriate measures requiring unanimous Council action where no other legislative powers exist.

The primary treaty basis for EU labour law is found under Social Policy. According to Article 153(1) TFEU, the EU cannot unilaterally create labour law. Member States allow the EU to enact directives—setting minimum requirements—to support and complement national activities, specifically to protect:

• Working conditions;
• Improvement of the working environment to protect workers' health and safety;
• Information and consultation of workers;
• Protection of workers upon termination of employment contracts;
• Equal treatment between men and women regarding labour market opportunities and treatment at work.

Can the European Union Regulate Remuneration?

As a general rule, the EU lacks the legislative competence to regulate the implementation or level of remuneration. This limitation is explicitly governed by Article 153(5) TFEU, which sets out strict exclusions to the EU's social policy mandate:

"The provisions of this Article shall not apply to pay, the right of association, the right to strike, or the right to impose lock-outs."

This exclusion creates a constitutional barrier under the principle of conferral (Article 5(2) TEU), which dictates that the EU can only act within the limits of the competences conferred upon it by Member States. Consequently, the EU cannot directly pass legislation setting a European minimum wage.

The minimum wage dispute centers on Directive (EU) 2022/2041, which aims to establish a framework for adequate minimum wages and promote collective bargaining. Denmark has sought its annulment, arguing the EU lacks the authority to regulate wages. Advocate General Emiliou supported this position, concluding that the directive interferes with national wage-setting systems and violates the Article 153(5) TFEU exclusion.

Rights of Migrant Workers Under Article 45 TFEU

1. Freedom of movement for workers: Secured within the Union. A worker must meet three criteria: perform services for a certain period, work under the direction of another person, and receive remuneration.

2. Abolition of discrimination: Freedom of movement entails the abolition of any discrimination based on nationality regarding employment, remuneration, and other working conditions:

• Direct Discrimination: Measures applied expressly based on nationality.
• Indirect Discrimination: Measures that, in practice, disadvantage migrant workers more than national workers.
• Non-Discriminatory Obstacles: Any measure that might deter EU nationals from exercising their right to free movement.

3. Limitations: Freedom of movement is subject to limitations justified on grounds of public policy, public security, or public health. The concept of public policy must be interpreted strictly, requiring a genuine, serious, and sufficient threat to society.

4. Scope of rights:

• (a) To accept offers of employment;
• (b) To move freely within the territory of Member States;
• (c) To stay in a Member State for employment purposes;
• (d) To remain in a Member State after employment ends.

5. Public service exception: Provisions do not apply to employment in the public service. This exception is interpreted narrowly, applying only to roles involving the exercise of public law powers, such as the armed forces, police, judiciary, tax authorities, and diplomatic service.

Article 45 TFEU possesses direct effect (vertical and horizontal), as established in Van Duyn, meaning it confers rights that individuals can directly enforce in national courts. These rights are supported by secondary EU laws that provide a practical framework for mobility and protect employees sent abroad temporarily.