14 - Implementation and enforcement of European labour law and employment policy through the social partners at national and EU levels

Summary

The evolution of the case law on implementation and enforcement of EU labour law through the social partners

Compared to administrative officials or judges, the social partners are much less remote from the site of enforcement of labour law. Their proximity means that they have the potential to be effective guarantors of the application of the rules. This function is reinforced by EU law's recognition of the role of collective agreements in implementing directives – a recognition that emerged slowly from the case law of the European Court of Justice.

Article 249 of the Treaty of Rome stipulates that:

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

Non-compliance with this obligation allows the Commission eventually to make a complaint to the European Court. Directives habitually referred to the obligation of Member States to implement their provisions through ‘laws, regulations and administrative provisions’.

In Commission of the European Communities v. Italian Republic, the Italian government argued ‘in substance’ that legislation, regulatory provisions and collective agreements combined to achieve adequate implementation of Directive 75/129 on collective dismissals. The Italian government argued that to take the contrary view was formalist:

In its opinion, the Commission set out from the formalistic stand-point that the directive can be complied with only by the adoption of implementing measures, irrespective of where the provision of directives are already complied with in the legal order of a Member State.[…]