15 - Individual judicial enforcement of European labour law

Summary

Introduction

The development of a model whereby EC labour law could be enforced by individuals seeking redress before national tribunals and courts – a judicial liability model – could have followed one of at least two tracks. Enforcement of EC law could have been left entirely to national law. The national system of remedies, procedures and sanctions could have been exploited to maximise the enforcement of substantive EU labour law rights. Building on the foundation of these purely national remedies, procedures and sanctions, an effort might be made to develop certain minimum standards of enforcement.

Alternatively, the attempt might be made to create an entirely original form of judicial liability system, developing a new EU law on remedies, procedures and sanctions, to which national law must conform. This solution would require the EU institutions to prescribe a system of harmonised rules on enforcement covering remedies, procedures and sanctions. The legislative organs of the EU have refused to do so; there is lacking a consensus among Member States that this is either necessary or desirable.

The consequence of the failure to develop a harmonised system of enforcement of EU labour law is, however, that there may be considerable diversity among Member States with regard to the efficacy of enforcement of generally applicable EU labour law norms. Those Member States with less efficacious remedies, more procedural restrictions, and weaker sanctions may better be able to avoid compliance with EU labour law by effectively reducing the likelihood of judicial redress for those benefiting from it, or the likelihood of liability of those subject to it.