Trade Unions and the EU Constitutional Treaty

Issue date

30 Apr 2005

The Trade Union Movement and the European Constitution

The outcome of the Intergovernmental Conference; 17-18 June 2004

Brian Bercusson
King’s College
University of London

8 July 2004 (updated, 31 March 2005)

Contents

Executive Summary
The economic, political and social integration of Europe
The UK trade union movement and the EU Constitution
A. The European Constitution and the European Social Model
B. The EU Charter of Fundamental Rights
- The legal context of the Charter
- Social rights are fundamental rights
- Legal effects of the EU Charter as part of the EU Constitution
- A minimum standard is not the lowest standard
- A standard common to the Member States
- International labour standards
The role of the European Court of Justice
The small print : Legal Effects of the EU Charter
The IGC summit of 17-18 June 2004
The aftermath: the legal effect of the EU Charter and the role of the ECJ
The small print under a magnifying glass
An illustration: the right to collective action (Article 28 of the Charter)

Executive Summary

The Treaty establishing a Constitution for Europe adopted on 18 June 2004 is the culmination of an historical process of European integration. It is important to understand the significance of its being a 'constitution'.

Despite the rearguard battles of UK governments since 1979, the EU has developed a 'social model' key elements of which are enshrined in the EU Constitution. One fundamental quality underpins its value as far as the EU, and the UK in particular, is concerned. As a Constitution, it fixes near enough in stone the underlying values, objectives and policies of the EU. Once (and if) the EU Constitution is ratified, the UK and the other Member States will be committed to a 'social model' which was the achievement of generations of struggle. The EU Constitution locks the UK (and other) governments into a European social model.

The EU model of employment and industrial relations is determined by the organisational forms of workers and employers at EU and national levels; specifically, their interactions in a variety of ways and at different levels, often characterised as 'social partnership'. Perhaps the most familiar is collective bargaining between an employer and a union at sectoral level in most countries, though also at company or enterprise level. But in the EU, this is only one of three institutional forms of interaction. The other two are processes at national level (macro-level) and at the workplace (micro-level). It is the existence of all three levels and their inter-relationship which define the specific character of the European model of employment and industrial relations.

Critical to the success of this specific EU model of employment and industrial relations is collective organisation in the form of collective organisations of workers and employers, the central actors in a 'social partnership' model. This defining feature of the European model implies substantial trade union membership, a pre-condition for the emergence of social partnership.

The European Constitution includes provisions which lay the foundation for the European social model. Part I of the Constitutional Treaty, Title VI: 'The Democratic Life of the Union', includes: [1]

Article I-48: The social partners and autonomous social dialogue

'The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.

The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue'.

As important as these institutional safeguards of the social partners in the European social model are the rights enshrined in Part II of the Constitution, the Charter of Fundamental Rights of the Union. [2]

There is a general consensus that perhaps the most important quality of the EU Charter is that it breaks new ground by including in a single list of fundamental rights not only traditional civil and political rights, but also a long list of social and economic rights. The EU Charter includes provisions, among them fundamental trade union rights, which are at the heart of labour law in Europe. [3]

The Charter would be part of a European constitution with potentially powerful legal effects, including direct effect and supremacy. The incorporation of the EU Charter into the primary constitutional law of the EU will have an impact on the Member States, bound by the Charter through the doctrine of supremacy of EU law.

Two specific methods of using the EU Charter to deliver rights at work may be indicated: (i) as an independent legal source of rights at work (e.g. through the doctrines of 'direct' and 'indirect' effect); (ii) as a basis for challenging national law which incorrectly or inadequately transposes EU law providing rights at work.

The Convention on the Future of Europe made a number of 'adjustments' to the EU Charter. One was inserted by the Praesidium of the Convention in the Preamble to the EU Charter:

'This Charter reaffirms, with due regard for the powers and tasks of the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context, the Charter will be interpreted by the courts of the Union and the Member States [4] with due regard for the explanations prepared at the instigation [5] of the Praesidium of the Convention which drafted the Charter'.

The Praesidium of the Convention which drafted the EU Charter submitted a final text of 28 September 2000, accompanied by another explanatory text of 11 October 2000, to the European Council at Biarritz on 13-14 October 2000. This latter document comprised 'explanations' to accompany the text of the Charter. These explanations were unambiguously not drafted or approved by the Convention which prepared the Charter, a fact repeatedly emphasised by the Praesidium itself. The EU’s website reproduces the Charter alongside these explanations of the Praesidium. There it is stated categorically twice in footnotes to the text of the Charter:

'These explanations have been prepared at the instigation of the Praesidium. They have no legal value and are simply intended to clarify the provisions of the Charter'.

The 'adjustment' made to the Charter’s Preamble appears intended to attribute a legal value to the explanations disclaimed by their authors.

The final outcome was that the Preamble to the EU Charter was amended adding to the above amendment: 'and updated under the responsibility of the Praesidium of the European Convention'. Moreover, there was added another paragraph 7 to Article II-112 of the EU Charter (Scope and interpretation of rights and principles):

'The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States'.

This outcome seems, contrary to the attempts by the UK government, if anything to have diluted the legal force of the explanations. The additional sentence added to the Preamble by the Praesidium of the Convention on the Future of Europe was quite strong: "...the Charter will be interpreted... with due regard to the explanations...". In comparison, the new Article II-112(7) added by the IGC seems weaker: "The explanations... providing guidance in the interpretation... shall be given due regard...". So "will be interpreted" becomes "shall be given due regard". Article II-112(7) takes precedence over the Preamble. Moreover, the text of new Article II-112(7) of the Charter makes no reference to the updated explanations. [6]

The aftermath of the European Council summit of 17-18 June reflected the habitual spin tactics adopted by the New Labour government. In his press conference of 18 June 2004 at the end of the meeting, Tony Blair announced:

'…the Charter of Rights is expressed specifically in such a way that it means that the industrial relations law of our country cannot be altered by the European Court of Justice through the Charter of Fundamental Rights'.

Whatever the impact of the spinning exercise in the domestic context of public opinion in the UK, and its consequences for the referendum, it is unlikely to influence opinion outside UK political circles, even less so in the courts of the UK when the Charter is invoked, and least of all in the most important forum deciding the legal effect of the Charter: the European Court of Justice.

On the last day of the European Council summit the Financial Times of 18 June 2004 (p. 6) reported an interview with the President of the European Court of Justice, Vassilios Skouris. The report quoted the judge as saying that the constitution 'will bring new areas and new subjects under the court’s jurisdiction', such as the charter. The report continued:

'Mr Skouris also called for the charter on fundamental rights to be made legally binding within the constitution - a move EU leaders are likely to make today.

‘A complete catalogue of fundamental rights will simplify things in the interest of legal certainty’, he said. The UK has been considering a compromise to the constitution text that could give the charter legal force over EU institutions but not over national laws.

However, many lawyers doubt if the legal impact of the charter can be ringfenced in this way. Mr. Skouris could not give assurances that the charter would not have an impact on UK law'. [7]

The attempt by the New Labour government to 'protect' the UK’s restrictive labour laws from the fundamental rights proclaimed in the European Constitution failed. The fallback of reliance on the 'explanations' to mitigate the consequences of the Charter is similarly unlikely to have the effect desired. There will be no 'protecting' UK labour laws, frequently condemned by the supervisory bodies of the ILO and the Council of Europe for violations of international labour standards, from the impact of the fundamental trade union rights guaranteed by the EU Charter. [8]

The economic, political and social integration of Europe

The EU Constitution [9] is the latest in a long line of Treaties defining the legal framework for the integration of Europe.

The legal form of this integration began with the European Economic Community (EEC) Treaty in 1957. As its title indicates, the legal framework of the EEC Treaty aimed primarily, if not exclusively, at European economic integration. For workers, this was closely limited to free movement among the Member States making up the common market.

This focus on a particularly narrow view of economic integration in terms of a common market was always contested. The legal framework of the EEC Treaty was first changed by the Single European Act (SEA) of 1986, in which the '1992 Programme' sought to make the 'Single European Market' more effective, but also extended the social content of the market to include, importantly, health and safety of workers. The attempt to adopt a more comprehensive framework for labour and social protection in the EC was reflected in the Community Charter of the Fundamental Social Rights of Workers of 1989, which was adopted by all Member States except for the UK.

It was the Maastricht Treaty on European Union (TEU) of 1992 which transformed the common market conception of the EC into a political and social entity: the EU. The TEU enormously expanded the social competences of the EU to include individual employment protection (e.g. regulation of working conditions), and collective labour rights (e.g. information and consultation). It also specified a formal procedure guaranteeing a role for the social dialogue between the EU social partners in making these regulations. The Amsterdam Treaty of 1997 took up the growing concern with the high levels of unemployment during the 1980s and 1990s and inserted a new Employment Title into the Treaty, expanding the role of the EU in the employment policies of the Member States. At the European Council summit at Nice in December 2000, the EU Charter of Fundamental Rights, including fundamental rights of labour, was proclaimed.

The Treaty establishing a Constitution for Europe adopted on 18 June 2004 is the culmination of this historical process of European integration. It is important to understand how it changes the existing Treaties, and the significance of its being a 'constitution'

Since 1979, for the past 25 years, a quarter of a century, British governments have provided the most consistent and effective opposition to the extension of rights for workers and trade unions in the EU’s legal framework. Despite this, it is important to realise that UK governments have not completely succeeded in preventing the EU from extending rights to workers and trade unions.

This has been an overlooked quality of EU labour regulation. However much the UK (but also other Member States) fought to resist EU labour standards, once these were adopted it was almost impossible to repeal them or regress from them. Now the EU Constitution makes these and other gains as near permanent as can be.

Once (and if) the EU Constitution is ratified, the UK and the other Member States will be committed to a 'social model' which was the achievement of generations of struggle. Just as no future Conservative (or New Labour government) can take away labour rights in Directives, the EU Constitution locks the UK (and other) governments into a European social model. It makes it less easy to give in to the pressures of globalisation and some politicians’ inclinations towards liberalisation of markets at the expense of workers and others. The EU Constitution formally binds EU Member States to fundamental social values, labour standards, employment rights and trade union freedoms.

The trade union movement should campaign in favour of the European social model by supporting ratification by Member States of the EU Constitution, and then making sure they respect it in practice.

The UK trade union movement and the EU Constitution

By proclaiming hostility to EU employment rights for workers, the New Labour government has gone out of its way to make it difficult for the British trade union movement to support the EU Constitution. Outraged reaction by trade union leaders is the understandable and justifiable response (Derek Simpson and Tony Woodley in the Guardian, 30 June 2004; Brendan Barber and John Monks in Tribune, 25 June 2004).

There are good reasons for supporting the EU Constitution, not because of, but despite the claims of the New Labour government. These reasons emerge when the general claims for the EU Constitution are examined, and the small print is scrutinised.

Two general claims will be examined:

A. the EU Constitution lays the foundation for a European social model;

B. the specific contribution of the EU Charter of Fundamental Rights in Part II of the Constitution.

The New Labour government asserts that the small print of amendments it promoted, not least at the Intergovernmental Conference of 17-18 June 2004, will 'protect' the UK’s low labour standards. This small print will be scrutinised.

A. The European Constitution and the European Social Model

The European social model embodied in the EU Constitution is of central importance not least because of the clear contrast it presents compared to the American experience. While there may be no or little military competition in a uni-polar world dominated by the USA, the economic [10] and political stature of the EU makes the European economic and social model the subject of considerable attention elsewhere.

Contrasting the presence and role of trade unions and workers' representative organisations in the USA with European experience illustrates the singularity of the European model of employment and industrial relations. Its manifestation, in all its diversity, at both EU and Member State levels, in the form of macro-level national dialogue, collective bargaining at intersectoral and sectoral levels, and collective participation in decision-making at the workplace is the most salient quality distinguishing the European model of employment and industrial relations.

The European Constitution includes provisions which lay the foundation for the European social model. Part I of the Constitutional Treaty, Title VI: 'The Democratic Life of the Union', includes:

Article I-48: The social partners and autonomous social dialogue

'The European Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.

The Tripartite Social Summit for Growth and Employment shall contribute to social dialogue'.

B. The EU Charter of Fundamental Rights [11]

Social rights are fundamental rights

The EU Charter includes provisions, among them fundamental trade union rights, which are at the heart of labour law in Europe. [12] It has the potential to renew labour law in the Member States and at EU level. [13] The Charter has already been cited in over 50 cases before the European courts. The potential of the trade union and labour rights in the EU Charter will be apparent when they are compared with Member State laws which restrict or inhibit the rights of workers and their representatives to information and consultation (Article II-87), to join trade unions (Article II-72) and to have unions recognised for the purposes of collective bargaining, and to take strike action (Article II-88).

Legal effects of the EU Charter as part of the EU Constitution

What are the potential legal effects of the EU Charter as part of the EU Constitution?

First, as with equal pay for men and women (Article 141 EC), the European Court of Justice could attribute binding direct effect to those provisions of the Charter which were considered sufficiently clear, precise and unconditional.

Secondly, the European Court of Justice has developed the doctrine of indirect effect, which requires national courts to interpret national laws consistently with EC law. This doctrine would apply with great force to the rights guaranteed in a Charter incorporated into the Treaty.

Thirdly, the violation by a Member State of a fundamental right guaranteed by the Charter in the Treaty would very likely constitute a breach of EU law giving rise to the principle of State liability developed by the European Court.

A minimum standard is not the lowest standard

The European Court’s formulation of fundamental rights need not adopt the lowest common denominator or minimum standard.

A standard common to the Member States

Instead, interpretation of the fundamental trade union and labour rights in the EU Charter will look to the legal and constitutional practices protecting these rights in the laws of the Member States. The Court's approach should be to adopt a formulation which includes fundamental trade union rights recognised in all, or a majority of Member States.

International labour standards

The European Court of Justice would also be able to draw upon a range of sources, including international law, in particular, ILO Conventions and Council of Europe measures.

The role of the European Court of Justice

The Charter would be part of a European constitution with potentially powerful legal effects, including direct effect and supremacy. The European Court of Justice becomes a central player in the enforcement of the EU Charter. The Court will decide disputes where Member States are charged with failing to implement, or allegedly violating rights in the EU Charter.

The incorporation of the EU Charter into the primary constitutional law of the EU will have an impact on the Member States, bound by the Charter through the doctrine of supremacy of EU law.

An example of its potential is the use of Article II-91(2) [14] of the Charter in the Opinion of Advocate General Tizzano in Case C-173/99 (BECTU), a complaint against the UK’s implementation of the Working Time Directive as regards the provisions for paid annual leave. Upholding the complaint, he stated that in interpreting the directive: [15]

‘the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved -- Member States, institutions, natural and legal persons -- in the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right’.

The small print : Legal Effects of the EU Charter

From the beginning, the New Labour government undertook a campaign to dilute so far as possible the content and, in particular, the potential legal effects of the EU Charter as regards its social content. The persistence of this campaign is a testament, albeit a shameful one, to the New Labour government’s determination to try to prevent labour standards and trade union rights being incorporated into the EU Constitution.

The Convention on the Future of Europe established a Working Group II on the EU Charter of Fundamental Rights. The Final Report of Working Group II [16] recommended that the EU Charter be integrated into the Treaty. However, the Charter was incorporated with certain 'drafting adjustments' given in Working Group II's final report, though that report insisted that these adjustments 'do not reflect modifications of substance'. Despite this claim, there is no doubt that the proposed 'adjustments' were intended in particular to attack the social rights in the Charter. One example is the "adjustment" in the form of an additional paragraph added to Article II-112 [17] of the Constitution:

"The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by the institutions, bodies, offices and agencies [18] of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality".

This provision aims to prevent "principles" being interpreted in future as containing elements of positive rights for individuals. The language of the Charter uses the word "rights". By asserting that "principles" are different, the Working Group aimed to open the door to transforming some "rights" into mere "principles".

However, the "adjustment" may not have the effect claimed for it. In particular, many of the provisions in Title IV ("Solidarity") of the Charter, Articles II-87-II-98 (including Article II-87: Workers’ right to information and consultation within the undertaking, and Article II-88: Right to collective bargaining and action) are formulated as rights, not principles.

The Convention on the Future of Europe made another 'adjustment' to the EU Charter, one not proposed by Working Group II, but inserted by the Praesidium of the Convention in the Preamble to the EU Charter:

'The Charter reaffirms, with due regard for the powers and tasks of the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context, the Charter will be interpreted by the courts of the Union and the Member States [19] with due regard for the explanations prepared at the instigation [20] of the Praesidium of the Convention which drafted the Charter '.

The Praesidium of the Convention which drafted the EU Charter submitted a final text of 28 September 2000, [21] accompanied by another explanatory text of 11 October 2000, [22] to the European Council at Biarritz on 13-14 October 2000. This latter document comprised 'explanations' to accompany the text of the Charter. These explanations were unambiguously not drafted or approved by the Convention which prepared the Charter, a fact repeatedly emphasised by the Praesidium itself. The EU’s website reproduces the Charter alongside these explanations of the Praesidium. There it is stated categorically twice in footnotes to the text of the Charter:

'These explanations have been prepared at the instigation of the Praesidium. They have no legal value and are simply intended to clarify the provisions of the Charter'.

The 'adjustment' made to the Charter’s Preamble appears intended to attribute a legal value to the explanations disclaimed by their authors. The inspiration and source of this 'adjustment' is yet another concession to those Member States seeking to dilute the potential content of fundamental rights guaranteed by the EU legal order.

The IGC summit of 17-18 June 2004

The European Council summit meeting on 17-18 June 2004 to decide on the draft EU Constitution was the last ditch attempt by the New Labour government to water down the labour standards and trade union rights in the EU Charter. The account of the negotiations left no doubt as to the inspiration for these amendments. The Financial Times reported: 'France and Germany also objected to a UK proposal that the Charter of Fundamental Rights could not be allowed to overturn national legislation in areas such as labour market policy'. The report continued: 'Mr Blair and Gordon Brown, the chancellor, made clear this week that the UK could not sign up to the constitution if it gave the European Court of Justice the right to change UK industrial relations law'. Specifically, 'The charter contains a series of supplementary explanations which ensure none of its provisions can be allowed to alter national laws. British government lawyers say this must be written into the body of the treaty text rather into its preamble - but France and Germany are resisting the move'. [23]

'The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States'.

This outcome seems, contrary to the attempts by the UK government, if anything to have diluted the legal force of the explanations. The additional sentence added to the Preamble by the Praesidium of the Convention on the Future of Europe was quite strong: "...the Charter will be interpreted... with due regard for the explanations...". In comparison, the new Article II-112(7) added by the IGC seems weaker: "The explanations... providing guidance in the interpretation... shall be given due regard...". So "will be interpreted" becomes "shall be given due regard". Article II-112(7) takes precedence over the Preamble. Moreover, the text of new Article II-112(7) of the Charter makes no reference to the updated explanations.

To these constitutional amendments, the European Council added a 'Declaration for incorporation in the Final Act concerning the explanations relating to the Charter of Fundamental Rights':

'The Conference takes note of the explanations relating to the Charter of Fundamental Rights prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention, as set out below'.

This Declaration, to be incorporated in the Final Act, emphatically merely 'takes note' both of the original explanations and the update. [24]

The aftermath: the legal effect of the EU Charter and the role of the ECJ

In his statement to Parliament of 21 June 2004 on the EU Constitutional Treaty he was even more explicit:

'In addition, the Charter contains explanations for each Article making it clear, for example, that ‘the… limits for the exercise of collective action, including strike action, come under national laws and practices, including the question of whether it may be carried out in parallel in several member states’ The Treaty requires those explanations to be given due regard by the Courts'.

In fact, of course, the Charter does not contain the explanations Blair refers to. And while they 'shall be given due regard by the courts', the Charter text specifies that they were 'drawn up as a way of providing guidance in the interpretation'. They are clearly not of equal status to the text of the Charter.

On the last day of the European Council summit the Financial Times of 18 June 2004 (p. 6) reported an interview with the President of the European Court of Justice, Vassilios Skouris. The report quoted the judge as saying that the draft constitution 'will bring new areas and new subjects under the court’s jurisdiction', such as the charter. The report continued:

'Mr Skouris also called for the charter on fundamental rights to be made legally binding within the constitution - a move EU leaders are likely to make today.

However, many lawyers doubt if the legal impact of the charter can be ringfenced in this way. Mr. Skouris could not give assurances that the charter would not have an impact on UK law'. [25]

A leading commentator, John Palmer, Political Director of the European Policy Centre, analysing the results of the European Council wrote: [26]

'The treaty also makes clear that the provisions of the Charter of Citizens’ Fundamental Rights will be judiciable in the European Court of Justice - in spite of fierce opposition initially from the British government. These include some highly sensitive issues such as workers’ rights to strike. The text does stipulate that the ECJ must take 'due consideration' of national laws in these areas when reaching judgments. However the final decision on how to balance the contents of the Charter and the 'explanations' of national circumstances will be left to the judges in Luxembourg. Case law seems certain to evolve over the years ahead and it would be surprising if it did not involve in ways which supported the values of the Charter'.

The attempt by the New Labour government to 'protect' the UK’s restrictive labour laws from the fundamental rights proclaimed in the European Constitution failed. The fallback of reliance on the 'explanations' to mitigate the consequences of the Charter is similarly unlikely to have the effect desired. An article in the Financial Times of 4 January 2005 (page 4) concerning British "employers' views on support for new constitution" states:

'A sticking point for business remains the Charter of Fundamental Rights, which lays out a range of civil, political, economic and social rights to all people living in the EU. Some employers fear new rights for trade unions on the back of article II-88 of the charter which says that "workers and employers have the right to negotiate and conclude collective agreements and, in cases of conflicts of interest, to take collective action to defend their interest, including strike action". Research for the Trades Union Congress by Professor Brian Bercusson of King's College London concluded that "the EU constitution locks the UK and other governments into a European social model" that would boost worker rights. But the Foreign Office denied this: "The charter doesn't create any new rights. We spent a very long time looking at this, in particular the disputed article. It does not create the right to strike". It had been on the insistence of the UK government that clauses were inserted into the treaty making it clear that the charter applied only to member states when they were implementing EU law and did not create any new powers for the Union. However legal experts say the impact of the charter can only finally be assessed when test cases challenging UK employment practices are brought before the European Court of Justice".

There will be no 'protecting' UK labour laws, frequently condemned by the supervisory bodies of the ILO and the Council of Europe for violations of international labour standards, from the impact of the fundamental trade union rights guaranteed by the EU Charter.

The small print under a magnifying glass

The following are a number of arguments, using textual and systematic (and historical) approaches to interpretation, on the potential effect of the IGC’s amendments to the EU Charter inserted at the behest of the UK government.

This analysis proceeds with awareness of the intentions of the UK government which promoted the amendments of 18 June 2004, but also of those governments which resisted and watered down those amendments.

1. The additional sentence added to the Preamble by the Praesidium of the Convention on the Future of Europe was quite strong: "...the Charter will be interpreted... with due regard for the explanations...". In comparison, the new Article II-112(7) added by the IGC seems weaker: "The explanations... providing guidance in the interpretation... shall be given due regard...". So "will be interpreted" becomes "shall be given due regard". Article II-112(7) takes precedence over the Preamble.

2. The IGC's Working Party of Legal Experts recommended the explanations be published only in the "C" section of the Official Journal (CIG 51/03, 25 November 2003, paragraph 7): "...since the text explicitly states that 'the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared at the instigation of the Praesidium of the Convention which drafted the Charter', it would be legally inconceivable for the text of such explanations not to be available to those courts and to Union citizens; it is therefore suggested that the explanations be made universally accessible by ensuring that they are published in the 'C' series of the Official Journal of the European Union". This proposal reflects the suggestion "drafted on the responsibility of the Chairman of the Working Party" (the Legal Adviser to the IGC, Mr. Jean-Claude Piris, Director-General of the Council Legal Service), referred to in the text of the Draft Treaty published "following editorial and legal adjustments by the Working Party of IGC Legal Experts" (CIG 50/03, 25 November 2003, page 1). The "C" series, of course, includes non-binding documents.

It should be noted that in the Working Party this amendment was 'supported by the great majority of delegations (with the German, Austrian, Belgian, Luxembourg and French delegations opposing it, because they feel it raises issues of political desirability)…' (CIG 50/03, 25 November 2003, p. 68, footnote 1).

In the event, the 'explanations' appear as Declaration 12 annexed to the Constitution published in the Official Journal C 310/1 of 16 December 2004. [27]

3. The Preamble refers to "updated" explanations, but Article II-112(7) does not.

4. The IGC's "Declaration for incorporation in the Final Act concerning the explanations relating to the Charter of Fundamental Rights" says only that the IGC "takes note of the explanations". This is replicated in Declaration 12 as published in the Official Journal.

5. There are no amendments to the substantive text of the Charter rights, only to the Preamble, to the title of the "horizontal" Article II-112, and a new Article II-112(7).

6. The amended Preamble and new Article II-112(7) refer only to "explanations". They do not change the rights in the Charter.

7. These amendments address interpretation questions only. They cannot change the substance of the rights in, or text of, the Charter For example, the change (already in the draft of 18 July 2003) in the heading of Title VII (the section of the Charter on "horizontal" provisions), from "Scope" to "General provisions governing the interpretation and application of the Charter", and, more specifically after 18 June 2004, also to "horizontal" Article II-112 (from "Scope of guaranteed rights" to "Scope and interpretation of rights and principles") cannot transform "rights" into "principles".

8. It will be necessary to review the "updated" explanations. The original "explanation" to Article 52 (on the EU's website) did not reflect its new title. It began: "The purpose of Article 52 is to set the scope of the rights guaranteed". It said nothing about interpretation. Now re-numbered Article II-112, the 'updated' explanation in Declaration 12 states 'The purpose of Article 52 is to set the scope of the rights and principles of the Charter, and to lay down rules for their interpretation'.

9. For example, the often quoted "explanation" to Article 28 (now Article II-88), as cited by Tony Blair in his statement to the House of Commons of the UK Parliament on 21 June 2004, states not as an interpretation but as a prescription that "national laws and practices" impose substantive limits to the rights declared in the Charter. I argue against this for an "interpretation" of the words "national laws and practices" in Article 28 which does not limit the rights in that Article.

10. The "explanations" have been repeatedly characterised, not least by those who drafted them, and as stated on the EU's website, as of "no legal value". They were not published in the Official Journal alongside the Charter (OJ C 364/21 of 18.12.2000), only on the EU's website. As published as an annex to the Constitution in the Official Journal, Declaration 12 adds: 'Although they do not as such have the status of law, they are a valuable tool of interpretation intended to clarify the provisions of the Charter'.

11. Their legal value has been upgraded at most to the level of "due regard" and "providing guidance". At this point, there are important questions about the transparency and legitimacy of the process which produced the 'explanations'. They were produced by the Praesidium of the Convention which drafted the Charter, but without the participation or approval of the Convention. They were given prominence in the Preamble of the Charter by the Praesidium of the Convention on the Future of Europe, again without the participation or approval of that Convention.

12. The Charter has been cited repeatedly before the EU courts (over 50 cases); it would be worthwhile looking again at these cases to see if the explanations were ever referred to, and, if so, how. Is there likely to be a radical change in interpretation as a result of the IGC's amendments of 18 June 2004?

An illustration: the right to collective action (Article 28 of the Charter)

There is a clear problem with the Praesidium’s Explanations insofar as they often fail to refer to 'international obligations common to the Member States'. The Preamble states that these are 'in particular' the inspiration and source of the EU Charter’s provisions. In the case of those provisions referring to individual employment and collective labour rights, the absence in the Praesidium’s Explanations of references to the core ILO Conventions which bind all Member States is particularly noticeable, and regrettable.

For example, as previously noted, the Praesidium’s original Explanations to Article 28 (now Article II-88) (Right of collective bargaining and action) state:

'This Article is based on Article 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR [European Convention on Human Rights of the Council of Europe]… Collective action, including strike action, comes under national laws and practices, including the question of whether it may be carried out in parallel in several Member States'.

As 'updated', the new 'Explanation' to Article 28 changes the last sentence above to read: (additional wording in italics)

'The modalities and limits for the exercise of collective action, including strike action, come under national laws and practices, including the question of whether it may be carried out in parallel in several Member States'.

First, there is an obvious contradiction between requiring respect for the ECHR and the assertion that collective action 'comes under national laws and practices'. The contradiction is evident when the European Court of Rights finds a Member State’s law to be in violation of the ECHR, as was recently the case with the UK in respect of Article 11. [28]

Secondly, collective action 'carried out in parallel in several Member States' engages precisely the transnational dimension of collective action in the European single market. Confining it to national laws and practices contradicts a fundamental right of European collective action. It is inevitably addressed at EU level, [29] not least by the European Court of Justice. [30]

However, apart from these references to European international instruments, there are other international obligations binding EU Member States. These are not mentioned by the Praesidium’s Explanations, though the Preamble emphatically states that the Charter reaffirms these obligations. This indicates the incompleteness of the Praesidium’s Explanations, which no doubt explains the admirable caution expressed by that Praesidium with respect to the use to be made of its Explanations.

The Preamble’s reference to international obligations must have important consequences for the interpretation of the EU Charter. For example, trade union collective action has often been restricted, allegedly to protect public and/or essential services. The ILO's Freedom of Association Committee has established international standards on collective action in public/essential services. Specifically, the UK’s limits on 'the modalities… for the exercise of collective action' have attracted condemnation by the ILO Committee. Relying on Article II-88 of the EU Constitution (right to collective action), trade unions could promote challenges to more restrictive national laws.

The Constitutional Treaty’s 'adjustment' to the Preamble begins, after the reaffirmation 'in particular [of] international obligations common to the Member States', with the phrase '[i]n this context…'. The Explanations should be read, and the EU Charter interpreted, with full weight attached to this context of the international obligations of the EU and its Member States, not least the United Kingdom.

[1] Citations and quotations are from the Treaty establishing a Constitution for Europe adopted by the Member States in the Intergovernmental Conference meeting in Brussels 17-18 June 2004, published in OJ C 310/1 of 16 December 2004.

[2] The numbering of the articles of the EU Charter changed when it was incorporated as Part II of the Treaty establishing a Constitution for Europe. The numbering below reflects the text published in OJ C 310/1 of 16 December 2004.

[3] Freedom of association (Article II-72), right of collective bargaining and collective action (Article II-88), workers' right to information and consultation within the undertaking (Article II-87), freedom to choose an occupation and right to engage in work (Article II-75), prohibition of child labour and protection of young people at work (Article II-92), fair and just working conditions (Article II-91), protection of personal data (Article II-68), non-discrimination (Article II-81), equality between men and women (Article II-83), protection in the event of unjustified dismissal (Article II-90).

[4] It is worth noting here that the reference to courts of the Member States is further evidence of the expectation that the Charter will be accorded legal status in disputes before national courts as well as the ECJ.

[5] Note: The text published in the Official Journal C 310/1 of 16 December 2004 changes this: instead of 'at the instigation of', the wording is now 'on the authority of'.

[6] Declaration 12 to the Constitution adopted by the IGC on 17-18 June 2004, published in OJ C 310 of 16 December 2004 at p. 424, includes the explanations 'updated under the responsibility of the Praesidium of the European Convention'. It retains the numbering of the articles in the original Charter before it was amended by the Convention on the Future of Europe and the IGC of 17-18 June 2004.

[7] The report states that the judge 'added that he did not expect a large influx of cases due to the charter and tried to minimise British fears that essential professions, such as policemen, could go on strike: ‘The right of workers to take strike action doesn’t mean that everybody has the right to strike all the time and under any circumstances’, he said'.

[8] An article in the Financial Times of 4 January 2005 (page 4) concerning British "employers' views on support for new constitution" states: "A sticking point for business remains the Charter of Fundamental Rights, which lays out a range of civil, political, economic and social rights to all people living in the EU. Some employers fear new rights for trade unions on the back of article II-88 of the charter which says that "workers and employers have the right to negotiate and conclude collective agreements and, in cases of conflicts of interest, to take collective action to defend their interest, including strike action". Research for the Trades Union Congress by Professor Brian Bercusson of King's College London concluded that "the EU constitution locks the UK and other governments into a European social model" that would boost worker rights. But the Foreign Office denied this: "The charter doesn't create any new rights. We spent a very long time looking at this, in particular the disputed article. It does not create the right to strike". It had been on the insistence of the UK government that clauses were inserted into the treaty making it clear that the charter applied only to member states when they were implementing EU law and did not create any new powers for the Union. However legal experts say the impact of the charter can only finally be assessed when test cases challenging UK employment practices are brought before the European Court of Justice".

[9] Citations and quotations are from the Treaty establishing a Constitution for Europe adopted by the Member States in the Intergovernmental Conference meeting in Brussels 17-18 June 2004, published in OJ C 310/1 of 16 December 2004.

[10] The largest single unit in the world economy, before enlargement the EU (12) in 1997 had a nominal GNP of about $6 trillion, compared with $5 trillion for the US and $3 trillion for Japan and a population approaching that of the USA and Japan combined.

[11] The numbering of the articles of the EU Charter changed when it was incorporated as Part II of the Treaty establishing a Constitution for Europe. Unless otherwise indicated, the numbering of the articles of the charter reflects the text published in OJ C 310/1 of 16 December 2004.

[12] Freedom of association (Article II-72), right of collective bargaining and collective action (Article II-88), workers' right to information and consultation within the undertaking (Article II-87), freedom to choose an occupation and right to engage in work (Article II-75), prohibition of child labour and protection of young people at work (Article II-92), fair and just working conditions (Article II-91), protection of personal data (Article II-68), non-discrimination (Article II-81), equality between men and women (Article II-83), protection in the event of unjustified dismissal (Article II-90).

[13] There has been extensive commentary on the labour law dimension of the EU Charter. B. Bercusson (ed.), European Labour Law and the EU Charter of Fundamental Rights , European Trade Union Institute, Brussels, 2002-2003, also available in Dutch, French, German, Greek, Italian, Spanish and Swedish.

[14] The numbering in Part II of the Constitution; formerly Article 31(2) of the Charter.

[15] Case C-173/99, Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) v. Secretary of State for Trade and Industry, Opinion of the Advocate-General, 8 February 2001; ECJ decision, 26 June 2001, [1991] ECR I-4881.

[16] CONV 354/02, 22 October 2002.

[17] Formerly Article 52 of the Charter.

[18] As amended in the text published in the Official Journal C 310/1 of 16 December 2004; formerly this phrase read: ' institutions and bodies of the Union' .

[19] It is worth noting here that the reference to courts of the Member States is further evidence of the expectation that the Charter will be accorded legal status in disputes before national courts as well as the ECJ.

[20] Note: The text published in the Official Journal C 310/1 of 16 December 2004 changes this: instead of 'at the instigation of', the wording is now 'on the authority of'.

[21] CONVENT 50, CHARTE 4487/00, Brussels, 28 September 2000 (OR. fr).

[22] CONVENT 49, CHARTE 4473/00, Bruxelles, le 11 octobre 2000 (in French).

[23] Financial Times, 18 June 2004, p. 6.

[24] Declaration 12 to the Constitution adopted by the IGC on 17-18 June 2004, published in OJ C 310 of 16 December 2004 at p. 424, includes the explanations 'updated under the responsibility of the Praesidium of the European Convention'. It retains the numbering of the articles in the original Charter before it was amended by the Convention on the Future of Europe and the IGC of 17-18 June 2004.

[25] The report states that the judge 'added that he did not expect a large influx of cases due to the charter and tried to minimise British fears that essential professions, such as policemen, could go on strike: ‘The right of workers to take strike action doesn’t mean that everybody has the right to strike all the time and under any circumstances’, he said'.

[26] Communication to Members S56/04, 'The Constitutional Treaty - Opening the Way to a ‘Core ‘ Europe?', 20 June 2004, p. 4.

[27] Declaration 12 retains the numbering of the articles in the original Charter before it was amended by the Convention on the Future of Europe and the IGC of 17-18 June 2004.

[28] Wilson and the National Union of Journalists; Palmer, Wyeth and the National Union of Rail, Maritime and Transport Workers; Doolan and others v. United Kingdom, [2002] IRLR 128, decided 2 July 2002. For a detailed discussion of the potential impact on British labour law of what has been called 'probably the most important labour law decision for at least a generation', see K. Ewing, 'The implications of Wilson and Palmer', [2003] 32 Industrial Law Journal 1-22.

[29] See Council Regulation (EC) No. 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States. OJ L337/8 of 12.12.98 (the "Monti" Regulation").

[30] See Eugen Schmidburger, Internationale Transporte Planzuge v. Republic of Austria, Case C-112/00, [2003] ECR I-5659 .

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