The Interconnectedness of International and National Social Law

Project: Research project

Description

Over the last decades, the law of the European Union has become increasingly important for national legal systems. There have been some very significant developments in the fields of employee participation, working conditions, equal treatment of men and women, and the free movement of employees. As a result, many of these subjects can no longer be described purely in terms of national law.
In recent years, more or less from the time of the Maastricht Treaty, important changes have also occurred in the relationship between the Community organs and the member states, particularly in the field of social politics. Where on the one hand the interconnectedness can no longer be denied, on the other hand one can also see more resistance where it is feared that the European Union assumes too big a role. As an example, we need only refer to the principle of subsidiarity in the Maastricht Treaty. These developments have led to new instruments with which the Community wishes to achieve its aims. An example is the new instrument of 'benchmarking', which is used in the field of employment opportunity policies. Here, member states have to report on their achievements in the relevant area. Another example is the social dialogue, which allows employers' organizations and trades unions to take measures at European level in the field of social politics, as a sort of replacement for the legislature.
Although these still new forms of interconnectedness are at first sight of a less legal nature than the traditional forms, the legal problems which can arise as a consequence of the new instruments are no less significant. There is a need for research into this area and for proposals to solve these problems. At the same time, research needs to be carried out on how the new instruments can be 'enforced' -in other words, what sanctions would be adequate (see also project section 4.2). Of course research will also be needed into the way in which traditional directives have been implemented. The directives on the equal treatment of men and women are among the most well-known EU directives, and continue to yield new material on the relationship between national and international law, including in a more abstract sense. The researchers already have considerable experience, partly from carrying out contract research, in researching the implementation of these directives, both in the EU member states, and in prospective member states.
The Ph.D.-project on 'Protection of property rights in social security', to be carried out in the research group of labor law and social security law, fits into this research project. The same applies to the project on 'Implementing the EC directive on posting', which will also be carried out in the group of labor law and social security law (by Mijke Houwerzijl).
This project section will also include research into the penetration of the European Social Chapter (ESC) in the light of the complaints procedure introduced by the Additional Protocol of 9 November 1995, and in the light of the new Article 136 EC Treaty. The courts in the Netherlands have always been reluctant to allow the penetration into Dutch law of articles from the ESC imposing positive obligations on the national government. The traditional point of view has been that these articles allow the legislature and executive such policy freedom that the courts can have no role in controlling this. However, two recent developments may lead to this policy freedom being seen to be considerably smaller than has been thought to date. On the one hand a complaints procedure for groups was introduced in 1995 within the framework of the ESC, which may result in a more extensive description of the relevant precedents. On the other hand, the Treaty of Amsterdam incorporated the 1989 Community Charter of the Fundamental Social Rights of Workers into the EC Treaty. The EC legislation arising out of this will also result in a reduction in national policy freedom. National judges have already begun to take a more differentiated position on a few occasions in relation to the penetration of the ESC. In the judgement of the Central Appeals Court of 4 November 1998, NJB 1998, 36 (Dutch legal periodical) the question of whether the ESC has power to bind everyone was not answered, and in the Central Appeals Court judgement of 30 September 1998 (97/4772 AOW) the question of its power was neither left unaddressed nor denied. Could the reduction of national policy freedom as a result of the two developments described above lead to national judges displaying a greater willingness to allow the penetration into Dutch law of ESC provisions, which impose positive obligations on the government?
StatusFinished
Effective start/end date1/01/0031/12/01