Nice Charter: path for labor protection and social rights
Europe, thanks to the important steps forward by the European Court of Justice on the relationship between Community law and domestic law, can become not only an economic community but also and above all a community of law and therefore an authentic human community capable of taking scrupulous care of citizens , starting from labor protection and social rights …
Internal and Community issues have long challenged each other in the field of competing legislative matters. It is indeed true that our Constitution, especially in articles 11, 35 and 117, has opened the doors of national law to Community law and that the relationship between Community law and domestic law is informed of the four principles whereby: the first prevails always on the second if incompatible, requires the removal from the state regulations of the rules contrary to the Treaties of the European Union, is immediately effective in the case of regulations and directives self-executing (i.e., particularly detailed) and imposes, in any case, on national courts an interpretation of domestic law in accordance with any other directive.
But it is equally true that, often, that legal “sovereignty” resurfaces, a legacy of the principle inherited from international law according to which “reges superiorm non recognoscentes”, capable of guiding the national legislator himself and, in general, the interpreters of domestic law to the idea that within the borders of our state, first of all, state law must apply.
To date, not surprisingly, seventy-one infringement procedures have been filed against our country opened by the European Commission for violation of Community law or for failure to transpose directives.
Our “labor sovereignty” is also the victim of our labor law which, for this reason, has faced embarrassing impasse in terms of protections for workers and social rights, which have instead found wide citizenship in EU labor law.
Thus, for example, it happened in the case of fixed-term contracts in our Public Administration, the reiteration of which can only give rise to a compensation sanction and not to the concretely deterrent one to which Directive 1999/70 / EC looks. Or again, this was the case with regard to collective redundancies whose union information and consultation procedure to guarantee workers, despite the provisions of Directive 95/59 / EC, was not extended to managers until 2014. This dramatically happens in the case of gig workers, workers in the gig economy like Foodora’s riders, who, despite the great attention paid by the European Union to fair working conditions, do not currently enjoy minimum standards of protection. A picture with such bleak hints therefore raises two questions. The first is if there is a path that can lead to greater effectiveness in our country of EU labor law and therefore to the protection of workers and the social rights it contemplates. The second is whether this hypothetical path is also accessible to Italian gig workers. To the first question, one can only answer that there is a path and that is the “constitutionalization” of EU labor law that the European Court of Justice traced for the first time in November 2018 with the Bauer and Willmeroth judgment (C – 569/16 and C – 570/16). With this ruling, in fact, the Court recognized the Charter of Fundamental Rights, better known as the Nice Charter, directly applicable to European citizens and, with it, in the specific case, that of its article 31, as a “clear provision , precise and unconditional “. According to this important provision, every worker has the right to “healthy, safe, and dignified working conditions … right to a limitation of the maximum duration of work and to daily and weekly rest periods and paid annual leave” while, according to the previous one, it is equally important Article 30, “to protect against any unjustified dismissal, in accordance with Community law and national laws and practices”.The Smith judgment (C-122 of 2017) and the Egenberg judgment (C-414/2016) of the European Court of Justice were registered in the same furrow. And again, on January 25, 2018, in case C-96/17 (Vernaza Ayovi), Advocate General Kokott recognized “European labor law” not only for its autonomous coherence but also for an unprecedented identity. Thanks to this path, in other words, on the one hand, the pitfalls of the failure or incorrect transposition in our country of the European directives in the field of labor protection and social rights are overcome because, at least within the limits of the Nice Charter, directly applicable to European citizens. On the other hand, many of the fences of the concurrent legislative competence of the European Union in the same field and therefore those of article 5 of the TFEU (Treaty on the Functioning of the European Union) are exceeded. As directly applicable, in fact, the Nice Charter is not compressed by 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 European Union Treaties. If it is true that such a path exists, then it is still true, to answer the second question, that Italian gig workers can, and indeed must, access it to reap the benefits disseminated along it. And in fact, articles 30 and 31 of the Nice Charter, directly applicable also to them, contemplates those guarantees necessary to make work worthy, as Father Francesco Occhetta s.j. defines it. in his latest volume (Let’s reconstruct politics, San Paolo Edizioni, 2019). These are the rest of the guarantees on which the ILO, since 1999, has built the agenda of the so-called decent work, of the guarantees that correspond to articles 2, 3, 4, 5 and 12 of the European Social Charter and with the articles of the Social Pillar of 17 November 2017 (European Pillar of Sociali Rights proclaimed in the Social Summit For Fair Jobs and Growth of Gothenburg) and which inspired: the proposal for a Framework Directive on decent working conditions in all forms of employment (2016/2095 INI), an unpublished still Directive of 16 April, the resolution of the European Parliament of 4 July 2017 and finally, 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”. In conclusion, thanks to the important steps forward by the European Court of Justice on the relationship between EU law and domestic law, Europe can become not only an economic community but also and above all a community of law and therefore an authentic human community capable of taking scrupulous attention care of citizens, starting from labor protection and social rights.After all, as Jan Patocka, one of the greatest Czech thinkers of the twentieth century, recalled, Europe “was born from this motive, that is, from the care of the soul”.