by the lawyer Ciro Cafiero, law firm Cafiero Pezzali & Associati
The forthcoming European elections question us with three questions. The first is to what purpose the construction of a European labor market responds. The second is if, today, there is a European labor law. The last is what are the meanings that, in the light of this right, acquire decent work and the guaranteed minimum income (note1), which is very topical in our country. Going in order, with reference to the first question, after a pushed globalization the “regionalisms” have returned to being protagonists. So the two superpowers China and the US are toned up to invest mainly in their territories. In this regard, as reported by the Economist at the end of January, China’s investments in Europe and the United States were reduced by 73%, consequently the percentage of US matrix goods imported from China decreased, while, more generally , the global investment value of multinationals fell by 20% in 2018. This is, in part, the consequences of protectionist policies, in other part, of a phenomenon, which, referring to the 2015 definition of Adjiedj Bakas, the Economist defined slowbalisation. So, to answer this first question, Europe can only invest above all in Europe and therefore work on the creation of a European labor market in order to compete with China and the USA. In this perspective, it is hoped that a single control room will be set up like the European Labor Authority, to which it has looked at a proposal for a regulation dated 31 March 2018, COM (2018) 131. This is in order to avoid the attempts – already registered in the past – of the companies of some Member States to operate only fictitiously in the territories of others, in particular with the exclusive aim of benefiting from the lower labor costs registered there.
Suffice it to look at the poisoned fruits of the transnational posting of workers or the administration of work on European territory (note2), from which the dumping which faced Directive no. 2018/957, in reform of directive 1971/96. And again, and always in response to the first question, the creation of a European labor market responds to the purpose of building a social and not only economic European Union in the sign of the purposes of peace, integration and common well-being, which act as a fil rouge compared to the Maastricht Treaties of 1992, Amsterdam of 1997, Nice of 2001, the Charter of Fundamental Rights Nice (with the same treaty value), and, most recently, of the Lisbon Treaty of 2007. If this is so, then we must ask ourselves, with reference to the second question, about the existence of a European labor law. The answer to this question is basically positive given that for some years, the European Court of Justice seems oriented towards recognizing its own identity and therefore its autonomous effectiveness in the various legal systems in the European labor legislation. In this sense, on January 25, 2018, in Case C-96/17 (Vernaza Ayovi), Advocate General Kokott specified that “the coherence of European labor law also requires that the notion of working or employment conditions be interpreted regardless of its meaning in related Union law provisions “. And again, in November 2018, European labor law seems to have found a form of constitutionalization in the Bauer and Willmeroth judgment (C – 569/16 and C – 570/16). With it, in fact, the Court of Justice has recognized in Article 31 – regarding paid annual leave – of the Charter of Fundamental Rights of Nice, the value of a clear, precise and unconditional provision and therefore applicable directly to European citizens (note3 ). The same principle was expressed by the European Court of Justice in the Smith judgment (C-122 of 2017) and in the Egenberg judgment (C-414/2016).
This new orientation of the Court of Justice constitutes an important step forward in the path aimed at the effective protection of the social rights of private European citizens, given that it exceeds – in some ways – the limits connected to the non-exclusive but only concurrent legislative competence that Europe , in the field of social policies (living and working conditions, equal opportunities, welfare) can exercise under the sign of article 5 of the TFEU (Treaty on the Functioning of the European Union). And therefore the limits deriving from the principles of subsidiarity and proportionality according to which the European concurrent legislative action is legitimate to the extent that, respectively, it is more effective than the national one and is strictly preordained to the achievement of the objectives of the Treaties. Limits that had not been able to overcome even the frequent use of the European Union to the so-called tools soft law. And this as happened in the case of the fight against social exclusion, just art. 151 of the TFEU, or in the case of the European Pillar of Sociali Rights, the so-called Social Pillar, proclaimed in the Social Summut For Fair Jobs and Growth in Gothenburg on 17 November 2017. Furthermore, judging provisions like Article 31 of the Nice Charter directly applicable to private entities could pave the way for solutions to problems related to the failure to transpose social rights directives in member countries (note 4).
If a European labor law exists, then it is necessary to ask ourselves, to move on to the third question, on the meaning that decent work and guaranteed minimum income have for it.
Compared to decent work, or worthy work, changing the famous expression contained in the so-called decent work agenda of the ILO of 1999, it means above all fair conditions of wages, safety at work, collective rights, fight against precariousness.
In this direction, precisely the aforementioned article 31 of the Charter of Fundamental Rights of the European Union guarantees each worker “healthy, safe and dignified working conditions … right to a limitation of the maximum duration of work and to daily and weekly rest periods and to paid annual leave “(note5).
A principle that matches both the articles 2, 3, 4, 5 and 12 of the European Social Charter and the articles of the already mentioned Social Pillar of 17 November 2017.
Hence the proposal for a framework directive on decent working conditions in all forms of employment that the European Parliament addressed to the social partners and to the Commission with the resolution of 19 January 2017 (2016/2095 INI).
So much for the resolution of the European Parliament of 4 July 2017 that took note of the need to also guarantee workers of the gig economy the appropriate protection based on the study conducted in this regard by Eurofound in 2015.
Finally, what about the resolution of the European Parliament of 31 May 2018 in response to “petitions regarding the fight against precariousness and abuse of fixed-term contracts”. Compared to the guaranteed minimum income, it is sufficient to consider that European labor law does not promote subsidies but work and recognizes European workers for periods of non-work as a support aimed at guaranteeing them a free and dignified existence. From the point of view of European legislation, this type of income assumes, in other words, the meaning of a social security instrument in favor of the temporarily unemployed worker with a view to his / her job reintegration and not that of an unconditional assistance tool such as that that seems to be making its way into our country. In this sense, the Charter of Fundamental Rights of the European Union in article 34 provides for the right to access to social security benefits “in case of loss of job”. In the same perspective, the European Social Charter, in article 30, identifies as a measure to combat poverty and social exclusion that of promoting effective access to work while the European Pillar, in article 4, recognizes each person the the right to “receive support for job search, training and retraining” as well as, in article 13, to the unemployed that to “adequate unemployment benefits of reasonable duration” specifying in article 14 that “for those who can working the minimum income should be combined with the inventives to integration into the labor market. ” Moreover, this type of income does not guarantee freedom, social dignity and the development of the personality of citizens, children of work (note 6), risks crystallizing social inequality because, as it is not progressive, it deprives the citizen of the possibility, which instead it derives from work, to obtain a higher salary, to consequently reduce the inequality gap with respect to those who are higher in the social pyramid and, therefore, ultimately to activate processes of redistribution of wealth.
Furthermore, it does not even improve the condition of the so-called poor workers, or those employed for only 7 months a year and whose family income is less than 60% of the national median income, given that the solutions to this problem translate into higher wages, less precarious work and for at least two members of the household. Finally, the minimum guaranteed income, in confining consumption within the limits of unchanged economic availability, risks encouraging the indebtedness of those who aspire to consume beyond these limits but above all it can be lethal for our country, where the birth rate decreases registering only eight children out of a thousand inhabitants and the elderly population grows 23% more in 2050, because it undermines the intergenerational pact on which our welfare system is based and under which every two active people, that is, at work, maintain one inactive (note7). Against these considerations, the narrative according to which the revolution destroys jobs is not valid, given that, as reported by the Economist in February, in the United States, where this revolution is disruptive, in 2017 there were 97 jobs for every 100 Americans against just 89 places in 2005.
In conclusion, in a European labor market, which cannot be dispensed with, the challenges faced by European labor law, which are newly coined, are those of decent work and increasing employment against forms of harmful welfarism. Still today, after all, the challenge remains that of the “Bread and Roses” of the workers of Lawrence of 1912, that is to create not only employment but above all dignified employment. NOTE 1. The topics covered by this contribution were also discussed during the meeting promoted by “Connections” at Civiltà Cattolica entitled “Europe and reforms” on January 19, 2019 held by Prof. Giovanni Maria Flick, by prof. Francesco Clementi, by father Francesco Occhetta and myself. 2. The establishment of employment agencies is strictly regulated in our country by articles 4 and following of Legislative Decree no. 276 of 2003. 3. According to the Court, indeed, this provision reflects “the essential principle of EU social law”. 4. There are only a limited number of European labor regulations, which – as such – have direct effect in the individual Member States. Among these, Regulation n. 492 of 2001 which expands the categories of workers, including the players among others. European labor legislation has developed along two trajectories: the first concerns the free movement of labor, the European Social Fund preordained for worker training, and therefore professional training; the second concerns the harmonization measures of national laws with a view to avoiding imbalances between Member States. 5. Articles 10, 11, 35 and 117 of the Constitution, which – in conjunction with each other – promote agreements and international organizations aimed at affirming and regulating labor rights and provide that the system conforms to them, are the gateway to supranational labor legislation, including European legislation, in our legal system. 6. As the Hon. Fanfani during the work of the Constituent Assembly, “to say that the Republic is founded on work is the affirmation of the duty of every man to be what everyone can in proportion to natural talents. So that the maximum expansion of this popular community can only be achieved when each man will have made the fullest contribution to common prosperity in his fullness. ” 7. Not surprisingly, La Pira in “Waiting for the poor people” recalled the concept of communitas by San Tommaso according to which the communitas is perfect when everyone can work, and not be subsidized, to live.