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Minimum Harmonisation after Alemo-Herron: The Janus Face of EU Fundamental Rights Review

European Court of Justice, Third Chamber Judgment of 18 July 2013, Case C-426/11, Alemo-Herron v Parkwood Leisure Ltd

Published online by Cambridge University Press:  04 August 2015

Marija Bartl  and
Candida Leone
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Case Notes
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European Constitutional Law Review , Volume 11 , Issue 1 , May 2015 , pp. 140 - 154
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Copyright © The Authors 2015 

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References

1 ECJ 14 March 2013, Case C-415/11, Mohamed Aziz v Caixa d´Estalvis de Catalunya, Tarragona i Manresa.

2 ECJ 27 July 2014, Case C-169/14, Sanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA.

3 Mak, C., ‘On Beauty and Being Fair – The Interaction of National and Supranational Judiciaries in the Development of a European Law on Remedies’, in K. Purnhagen and P. Rott (eds.), Varieties of European Economic Law and Regulation (Springer International Publishing 2014) p. 823Google Scholar; Comparato, G. and Micklitz, H.W., ‘Regulated Autonomy between Market Freedoms and Fundamental Rights in the Case Law of the CJEU’, in U. Bernitz et al. (eds.), General Principles of EU Law and European Private Law (Kluwer Law International 2013) p. 121Google Scholar.

4 We will often refer to ‘the Alemo Court’. While this practice might appear unusual, we aim by it to underline, on the one hand, that we hope Alemo will stay a contingency in the ECJ’s case law and not become the Court’s standard approach in similar matters; on the other hand, that there is something odd to a decision of this importance being swiftly taken by a five-judge chamber, largely relying on the (re)interpretation of a previous decision authored by the same rapporteur (see infra for the discussion of this older decision).

5 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses, OJ 2001 L82/16.

6 Cited from Alemo-Herron, para. 10.

7 Wynn-Evans, C., ‘TUPE, Collective Agreements and the Static–Dynamic Debate’ [case note on Alemo-Herron and Others v Parkwood Leisure Ltd [2010] IRLR 298, CA], 39 ILJ (2010) p. 275CrossRefGoogle Scholar at p. 278.

8 Limited in time, since the concerned agreement remains applicable ‘until it expires or is replaced by a new agreement’. The article also grants member states the option to limit in time this ‘extended applicability’ of collective agreements - an option which, in any case, the UK did not make use of.

9 ECJ 9 March 2006, Case C-499/04, Hans Werhof v Freeway Traffic Systems GmbH & Co. KG, para. 37, emphasis added.

10 Werhof, para. 31.

11 It ‘had been of relevance [in Werhof] because of the way German employment law deals with collective agreements. It was not a concern in this case, because the matter depended entirely on the domestic law of contract’, see Parkwood Leisure Ltd v Alemo-Herron and others [2011] UKSC 26, para. 47. The UK Supreme Court had already considered that the solution to the case was unambiguous, in light of the fact that the precedents on which it was based ‘amount to no more than a conventional application of ordinary principles of contract law to the statutory consequences apparently created by regulation 5 of TUPE’.

12 Alemo-Herron, para. 24.

13 Weatherhill, S., ‘Use and Abuse of the EU’s Charter of Fundamental Rights: On the Improper Veneration of ‘Freedom of Contract’’, 10 European Review of Contract Law (2014) p. 167Google Scholar; Prassl, J., ‘Freedom of Contract as a General Principle of EU Law? Transfers of Undertakings and the Protection of Employer Rights in EU Labour Law Case C-426/11 Alemo-Herron and Others v Parkwood Leisure Ltd’, 42 ILJ (2013) p. 434CrossRefGoogle Scholar.

14 Alemo-Herron, para. 25, emphasis added.

15 For criticism: see Prassl, supra n. 14, and, more generally, Weatherhill, supra n. 14.

16 At the hand, as was mentioned supra, n. 4, of the same judge rapporteur.

17 Alemo Herron, para. 25, emphasis added.

18 Alemo Herron, para. 27, emphasis added.

19 ECJ 10 February 1988, Case 324/86, Foreningen af Arbejdsledere i Danmark v Daddy’s Dance Hall paras. 15 and 17; ECJ 6 November 2003, Case C-4/01, Martin and others v South Bank University, para. 40.

20 Needless to say, we need not mourn the fate of fundamental rights protection in such a case. Such protection obviously takes place also outside the ‘scope’ of EU law; it will just be other (national and international) institutions to engage in their interpretation and enforcement.

21 See also ECJ 7 May 2013, Case C-617/10, Åklagaren v Hans Åkerberg Fransson, para. 29.

22 Rosas, A., ‘When is the EU Charter of Fundamental Rights Applicable at National Level?’, 19 Jurisprudence (2012) p. 1269Google Scholar, <repository.mruni.eu/bitstream/handle/007/10752/101-209-1-SM.pdf?sequence=3>, visited 13 January 2015.

23 Jans, J.H., ‘Minimum Harmonisation and the Role of the Principle of Proportionality’, in M. Führ et al. (eds.), Umweltrecht und Umweltwissenschaft: Festschrift für Eckard Rehbinder (Erich Schmidt Verlag 2007) p. 705Google Scholar, <www.user.uni-bremen.de/∼avosetta/janjansarticle1.pdf>, visited 13 January 2015.

24 Craig, P.P. and de Búrca, G., EU Law: Text, Cases, and Materials (Oxford University Press 2008) p. 626Google Scholar.

25 ECJ 14 April 2005, Case C-6/03, Deponiezweckverband Eiterköpfe v Land Rheinland-Pfalz.

26 ECJ 14 April 2005, Case C-6/03, Deponiezweckverband Eiterköpfe v Land Rheinland-Pfalz, para. 64: ‘Deponiezweckverband the Community-law principle of proportionality is not applicable so far as concerns more stringent protective measures of domestic law adopted by virtue of Article 176 EC and going beyond the minimum requirements laid down by a Community directive in the sphere of the environment, inasmuch as other provisions of the Treaty are not involved’.

27 ECJ 25 March 2004, Case C-71/02, Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH.

28 Stuyck, J., ‘Case C-71/02, Herbert Karner Industrie-Auktionen GmbH v. Troostwijk GmbH, Judgment of the Fifth Chamber of 25 March 2004’, 41 CMLRev (2004) p. 1683Google Scholar; Egger, A., ‘EU-Fundamental Rights in the National Legal Order: The Obligations of Member States Revisited’, 25 YEL (2006) p. 513Google Scholar at p. 515.

29 Almost incidentally, the Advocate General seized an important point: are member states (not) allowed to permit the parties to include dynamic clauses? Does EU freedom of contract require, in this case, setting aside the contractual principle of pacta sunt servanda?

30 Alemo-Herron, Opinion AG Cruz Villalón, para. 47.

31 ECJ 13 July 1989, Case C-5/88, Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft. Catherine Barnard, notices how, with reference to the fundamental principles of EU law, the case law in turn addressed cases in which the states were implementing EU law (Wachauf), derogating from it (ERT) or, more recently, acting within its scope (Annibaldi). What this scope is supposed to encompass, however, is precisely the question which appears most relevant here. See Barnard, C., EU Employment Law (Oxford University Press 2012) p. 31Google Scholar.

32 ECJ 18 June 1991 Case C-260/89, Elliniki Radiophonia Tileorassi AE (ERT) v. Dimotiki Etairia Pliroforissis and Siotirios Kouvelas.

33 See for instance P.P. Craig and G. de Búrca, supra n. 25, or Egger, supra n. 29.

34 For a compelling analysis see Majone, G., Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by Stealth (Oxford University Press 2009)Google Scholar.

35 Hale, R.L., ‘Coercion and Distribution in a Supposedly Non-Coercive State’, 38 Political Science Quarterly (1923) p. 470CrossRefGoogle Scholar; Polanyi, K., The Great Transformation: The Political and Economic Origins of Our Time, 2nd ed. (Beacon Press 2002)CrossRefGoogle Scholar.

36 Oliver, P., ‘What Purpose Does Article 16 of the Charter Serve?’, in U. Bernitz et al., General Principles of EU Law and European Private Law (Kluwer Law International 2013) p. 281Google Scholar.

37 Gillman, H., The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Duke University Press 1993)Google Scholar.

38 The guidelines can be found online <eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0017:0035:en:PDF>, visited 13 January 2015. In particular, freedom of contract is said to be based on, inter alia, ECJ 28 June 1978, Case C-151/78 Sukkerfabriken Nykøbing Limiteret v Ministry of Agriculture, and ECJ 5 October 1999, Case C-240/97, Spain v Commission. Both cases indeed recognised the existence of freedom of contract as something that, broadly speaking, is not to be restricted without an appropriate procedure and legal basis, without saying much as to its nature or as to what it entails. In addition, Weatherill in his comment argues that the cases fail to tell much about the status of freedom to contract in EU law. More generally, Prassl, supra n. 14, p. 442, notes how ‘even proponents of the recognitions and strengthening of freedom of contract as a general principle of Union law have noted that the notion does not currently form part of the EU legal order’.

39 X. Groussot et al., ‘Weak Right, Strong Court - The Freedom to Conduct Business and the EU Charter of Fundamental Rights’, Lund University Legal Research Paper Series No 01/2014, <papers.ssrn.com/sol3/papers.cfm?abstract_id=2428181>, visited 14 January 2015; P. Oliver, supra n. 36.

40 See ECJ 22 January 2013, Case C-283/11, C-283/11, Sky Österreich GmbH v Österreichischer Rundfunk, para. 47: ‘On the basis of [the Court’s] case law and in the light of the wording of Article 16 of the Charter, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest’, emphasis added.

41 Weatherhill, supra n. 14.

42 Governments’ submissions to the ECJ are not publicly available. The fact is mentioned by Prassl, supra n. 14, p. 437, who derives it from <blog.rubensteinpublishing.com/dynamic-interpretation-of-tupe-precluded/>, visited 13 January 2015.

43 Sky Österreich, supra n. 40, para. 47.

44 Alemo-Herron, para. 25.

45 Alemo-Herron, para. 27.

46 Alemo-Herron, para. 34.

47 It might be useful to recall, at this point, that under UK law collective agreements are only binding between two parties if and insofar as they have been incorporated in the individual contract of which, then, they become a part just as any other set of terms. This implies that the parties are in principle free to re-negotiate them at any point in time.

48 Such a scenario, by the way, would also have given Parkwood’s employees a better chance to exercise their freedom of contract in a meaningful way. As an aside, it should be mentioned that the company would not have been required to re-negotiate the whole collective agreement, but merely the pay increase.

49 Martin and others, supra n. 20, paras. 42-43.

50 This reasoning is not affected by the ECJ’s precedents restricting the possibility to agree contractual amendments justified by the fact itself of the transfer, such as Daddy’s Dance Hall, supra n. 20, D’Urso (ECJ 25 July 1991, C-362/89, Giuseppe d'Urso, Adriana Ventadori a.o. v Ercole Marelli Elettromeccanica Generale SpA a.o.), Rask (ECJ 12 November 1992 , C-209/91, Anne Watson Rask and Kirsten Christensen v Iss Kantineservice A/S) and Martin, supra, n. 20. The meaning of these decisions cannot be possibly stretched to imply that the parties would at this point be able to re-negotiate their contracts. The Court’s precedents should rather be understood as aiming to avoid the circumvention of the Directive’s by way of contractual arrangements. As highlighted by its Art. 3, the Directive’s effects – including those derived from its interpretation – are not meant to last eternally. If the arguments brought forward in those cases have any bearing in this context, this should rather work against the Court’s assumption that transfers automatically require adapting the applicable working conditions. This assumption is not compatible with the courts previous assertion that a transfer alone should not be a sufficient ground for changing the terms of employment.

51 The proceedings offer no evidence as to whether this has (not) happened in practice.

52 Incidentally, adopting reasoning which is frequently heard from heralds of laissez-faire in the domain of consumer contracts, the take-it-or-leave-it nature of a deal is not in itself a reason to consider it as less than favourable to the party accepting it.

53 Violation perpetrated – as ironic as this may sound – through the application of contract law orthodoxy and the principle of pacta sunt servanda. However, according to the same principle all the other terms in the transferred contract remain applicable. It seems appropriate, therefore, to ask how the line is drawn between terms whose preservation jeopardises the ‘core’ of contractual freedom and terms which can be safely transferred. This is just another question that the Court leaves unaddressed.

54 And as Oliver Wendell Holmes Jr. remarked in his dissenting opinion in Lochner v. New York, 198 U.S. 45 (1905): ‘[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics’.

55 Fligstein, N. and Sweet, A. Stone, ‘Constructing Polities and Markets: An Institutionalist Account of European Integration,’ 107 American Journal of Sociology (2002) p. 1206CrossRefGoogle Scholar.

56 Stein, E., ‘Lawyers, Judges, and the Making of a Transnational Constitution’, 75 American Journal of International Law (1981) p. 1CrossRefGoogle Scholar; Sweet, A Stone, The Judicial Construction of Europe (Oxford University Press 2004)CrossRefGoogle Scholar; Unberath, H. and Johnston, A., ‘The Double-Headed Approach of the ECJ Concerning Consumer Protection’, 44 CMLRev (2007) p. 1237Google Scholar; Vauchez, A., ‘Keeping the Dream Alive: The European Court of Justice and the Transnational Fabric of Integrationist Jurisprudence, 4 European Political Science Review (2012) p. 51CrossRefGoogle Scholar.