Minimum Harmonisation and Article 16 of the CFREU: Difficult Times Ahead for Social Legislation?

Summary

A few years later, as other contributions in this volume show, it still seems worth discussing Alemo-Herron. The case was a particularly nasty surprise for those who had been more favourably impressed by previous decisions such as Aziz and Morcillo, in which the Court of Justice (CJEU) had seemed willing to use the Charter of Fundamental Rights (CFREU) to grant relief to people being crudely hit by the economic crisis. Alemo-Herron seems to indicate a different path, providing the application of EU fundamental rights to private law questions with a somewhat bitter aft ertaste.

So many contributions have appeared by now that it is perhaps not necessary to go through the facts of the case in detail. We will only recall some essential information. First, the context: the case concerned the former leisure department of a London borough, which had been transferred to private owners. The individual employment contracts contained a clause providing for the ‘dynamic’ incorporation of those successive collective agreements applicable for the time being, including the related pay increases. EU law was involved because transfers of undertakings, such as the one which had taken place in this case, are regulated by the so-called Acquired Rights Directive, which seeks to secure the rights of employees in the event of transfers of businesses. In proceedings before UK courts, a conflict had arisen as to whether the dynamic clause would be applicable to the new employer. The conflict was induced by the CJEU's own precedent in Werhof. In that case, the Court had only affirmed that EU law did not require the application of dynamic clauses. However, one argument used suggested that dynamic clauses might actually be problematic in themselves: the decision indicated that the possibility of the Directive's imposition of dynamic clauses, referring to collectively bargained agreements, might infringe the employer's (negative) freedom of association. On that view, the Directive did not require more than the'static ‘incorporation approach already adopted in Germany.