It is probably fair to say that the European Court of Justice (ECJ) is an institution not used to hitting the headlines. However, its recent judgments in the Viking, Laval and Rüffert cases, have understandably given rise to consternation amongst trade unionists across the whole of Europe. In them, the court appears to give a higher priority to the freedom of circulation of capital and labour across the European market than to the rights of trade unions to take industrial action or make collective agreements. With the revision of the decade-old Working Time Directive and legislation on temporary agency workers still deadlocked by the failure of Member States to agree a deal in Council, these judgments have served to add to the frustrations felt by many trade unionists about the progress of European social legislation.
However, any moves to heap the blame on the Court are misplaced. It is important to remember that the ECJ can only rule on disputes that are referred to it about the scope and meaning of existing law. If its rulings show that existing laws are inadequate, it is up to us to change the law.
In these particular cases, changes to European law (and to national law in some countries) can provide remedies to the insufficiencies that have been shown up by these judgments.
These judgments have been based on legislation adopted under the existing European treaties. The Treaty of Lisbon will, if anything, make it easier to rectify the current legal situation thanks to its changes to the decision making procedures. It also contains some important new social safeguards that do not exist in the current treaties, and the treaty makes the Charter of Fundamental Rights legally binding on the EU institutions. The charter includes a number of social and work-place rights, including the right to negotiate collective agreements, take collective action and to fair workplace conditions. The EU institutions and Member States, when implementing EU law, will have to respect these rights. Suggestions that the Lisbon Treaty should not be ratified because of these court judgements are totally misplaced.
Over the next few months, Socialist politicians, including Labour MEPs, and the ETUC should discuss and define exactly what legislative changes are needed at European level. This discussion must reach clear conclusions in time to feature in the electoral programmes for 2009. They would include, for instance, a revision of the Posted Workers Directive.
Of course, there will be a political battle to bring in the necessary changes to legislation. Nowadays, we have to fight such political battles not just at local and national level but at European level. The necessary legislation, if not adopted before then, should feature in the manifesto of the Party of European Socialists for the 2009 European elections, and the PES should make it clear that it will not approve the appointment of the new European Commission following the elections (nor vote for a President of the Commission, who will henceforth be elected by Parliament) unless there is a clear commitment that the Commission will put the necessary legislation before Parliament.
Action is also needed at national level in some Member States. For example, the court rulings hinged on the fact that collective agreements are not enshrined in law in some countries and therefore do not bind those that are not party too them (eg service providers in other Member States). Recognising collective agreements as legally binding in national law (as is the case in some countries) would avoid some of the difficulties caused by the recent cases.
Either way, this is an opportunity for us as Labour politicians to demonstrate that the concept of social Europe will not be steamrollered by the liberalising tendencies of Barroso. The EU is not a project designed to enable unrestrained market forces - and, as the Socialist Vice President of the Commission, Margot Wallstrom, recently said, "the right of collective bargaining and action is not secondary to internal market rules". Indeed, this approach is embodied in the Lisbon Treaty, which commits the EU to " a social market economy, aiming at full employment and social progress". It is time to start making this a reality.