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ECJ shows more interest in social rights

24 October 2010

ECJ shows more interest in social rights

Until recently the European Court of Justice (ECJ) has been primarily known for a range of decisions via which workers' rights were subordinated to the principle of unrestrained competition. Just this week, however, the Court surprised friend and foe with a ruling which determined that people working in catering at Heineken, who had seen their employment contracts transferred to a different firm, Albron, would not be obliged to accept a lowering of their wages or a worsening of their conditions of employment. Companies attempting to use this kind of outsourcing as a form of social dumping have been told to think again: the Court does not find it acceptable. One swallow doesn't make a summer, but in another recent decision the ECJ showed itself to be more responsive to arguments from the social good than it has been in the past. Could the social rights somewhat reluctantly included in the Lisbon Treaty at last be getting their teeth?

Dennis de JongIt's a complicated construction, but an increasing number of firms are finding that it suits them: while you may think, as an employee, that you work for Heineken catering, you're actually employed by what is classed as a special 'personnel company'. This means that when Albron took over Heineken's catering, the firm did not see itself as obliged to take the personnel on under the same employment conditions. The courageous worker who fought for six years through the courts to win his rights had, as a consequence of the transfer to Albron, lost a great deal, his income having fallen from €46,000 to €20,000 p.a. The Court has now determined that in the case of divestment of parts of a firm, the conditions must remain the same if the same employees as before are performing the same work. And so they should: if the work stays the same, so should the wages and conditions.

Another interesting ruling from the ECJ came earlier in the year, on 15th July. The decision concerned a pension scheme for officials working for German local authorities. Employers and unions had agreed to the transfer of the pensions to a mutually-determined fund, but the Court insisted that they follow the procedure for putting contracts out to tender. Up to this point nothing remarkable was occurring. But in the preamble to the ruling, I read that the ECJ now concludes that all social conditions attached to the pension ruling (such as a ban on refusing pension fund participants on the grounds of their medical situation) may be taken into account in the tendering procedure. This means not only the costs, but also the social provisions. This gives the authority much more elbow room for its own scheme, even if this must be put out to tender.

Thus, if a local or regional authority claims that Brussels forbids insisting on good working conditions when, for example, the home help service or public transport is put out to tender, that's clear nonsense. So we need to be on our guard: public authorities will probably be looking to make savings via their personnel, which is once again a form of social dumping. And it seems the ECJ is no longer happy with this.

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