Wednesday 2 September 2009

You've gotta fight, for your right, to... have your Charter Rights applied by the ECJ (?)

Workers rights is an important issue in the politics of the anti-Lisbon party Sinn Féin (the only anti-Treaty party in the Dáil), and of Joe Higgins, the leader of the Socialist Party, and Ireland's only anti-Lisbon MEP since the European elections in June. It's also an issue in the upcoming referendum, with Pat Cox and Joe Higgins arguing across the pages of the Irish Times, and with the second largest union in Ireland, Unite, calling for a No vote on October 2nd.

The argument against the Treaty when it comes to workers rights is based on recent ECJ case law that has favoured employers over employees (Viking, Laval, Ruffert and Luxembourg), and the weakness of the Charter of Fundamental Rights, which would become part of the EU's primary law should Lisbon come into force. While the Charter would mean that weight needs to be given to the rights it contains when applying EU law, it is argued that it doesn't go far enough, and that it will affect national law adversely by weakening existing national workers' rights/it won't affect national law enough, leaving workers with weak national law workers' rights.

Bernard Harbor, of the trade union Impact, countered that, by ratifying Lisbon and by making the Charter part of the EU's primary law, workers' rights would be strengthened. In his article he makes the common sense argument that if workers' rights aren't well enough protected under Treaty law, then surely making the Charter part of the primary law is a concrete step in the right direction, even if it doesn't tick every box on your wish list. And from the point of view that European market law has been anti-worker, the opportunity to enshrine social and workers' rights in Treaty law is (or should be) one to be taken.

Rejecting the Lisbon Treaty would just ensure that the status quo continues - and it's hard to see how a No result will advance the cause of workers' rights. It won't rid the single market of its four guiding legal freedoms that inform the ECJ's judgments: of goods, services, workers and capital; and it won't add to the rights of workers.

Is a stronger Charter possible? It's hard to see how the far left can seriously believe so.

First, it's always easier to water reform down than to force greater change, especially if you hope to force greater reform by obstructing a reform package.

Second, it's hard to force greater reform when it effects the basic legal make-up of the EU, when you've pushed for guarantees and opt-outs in other areas. Does Sinn Féin really believe that it will get the UK (among others) to agree to more workers' rights across the single market when Sinn Féin has strongly promoted the idea of sovereignty and veto rights in its rhetoric, and when Ireland has negotiated guarantees and protections against the extent (real and imagined) of EU law?

While the guarantees were negotiated by the government and not Sinn Féin (and Sinn Féin finds the guarantees unacceptable), they did want the treaty to be re-negotiated. In such circumstances it would be strange to see Sinn Féin defending sovereignty on tax matters in the face of the French government on the basis that it would adversely affect the Irish economy to have tax harmonisation, while at the same time arguing that the UK is wrong to reject a stronger binding Charter for economic reasons.

Which brings us to three: there simply isn't the political support for stronger/more detailed workers' rights to be enshrined in the treaty beyond the Lisbon Treaty reforms. Indeed, at the last European elections the cente-left PASD did badly across Europe while the conservative EPP remained in top position. And Sinn Féin and the Socialist Party belong to the much, much smaller far-left group GUE-NGL group. Both the European Parliament and the Council have right-wing majorities: indeed, the composition of the Council is especially important, given that it consists of the governments who would negotiate a new treaty. The Council has a massive right-wing majority with 18 EPP and Liberal governments to 7 PASD and European Left governments (with 2 independent governments that aren't likely to swing leftwards). In addition, the UK, Spanish and Portugese PASD governments support a second Barroso Commission Presidency - as Barroso is from the EPP political family, this doesn't bode well for the support a stronger treaty on workers' rights would receive from even the left-lending governments in the Council. And that's before considering the likihood of a Tory government in the UK during a re-negotiation, who are strongly against the Lisbon treaty, arguing that it goes too far - could the Irish far-left convince them to vote their way?

In short, the idea that Ireland, where the far left parties are a small minority, could force through such a reform through a No vote is fantasy.

Voting against the Lisbon Treaty because it isn't 100% perfect is a strange political position to take. The Treaty is a compromise between 27 states. As with any compromise we must ask ourselves: does it improve things, and does it represent the best improvement that can be achieved through compromise? So far the far-left have failed in putting forward any positive, pragmatic and achievable alternative vision.


  1. At treaty level I believe that the "highly competitive social market economy" (TEU 3.3)among the EU's aims, as modernised by the Lisbon Treaty, offer some long term hope for the construction of a "social Europe".

    The concrete steps need secondary legislation, but the divisions do not appear solely on party political lines. Germany and France, for instance, are wedded to ideas about workers' welfare, although with different shades.

    By the way, ahead of the Irish referendum I am trying to understand what has made Ireland and the Irish what they are; enjoying Pierre Joannon: Histoire de l'Irlande et des Irlandais (Éditions Perrin).

  2. You're right that it takes secondary legislation - something that the left in general seems to find hard to comes to terms with in their campaigning. While the right can rely on the four freedoms in the Treaties to do their job, the left need to campaign and make the political arguments for their policies - and they should do a better job of connecting with the public on this.

    In this case, the far-left is seemingly obsessed with constitutionalising their perfect model of Europe, with little thought to political reality.

    I haven't read Pierre Joannon - are you focusing on the broad sweep of Irish history, or mainly on recent Irish history?

  3. Eurocentric,

    You are quite right. Some of the champions of the No vote in the French referendum on the Constitutional Treaty called themselves pro-Europeans and contended that it was the way achieve a better - more social(ist) - treaty.

    In practice, they managed to relegate France to the fringes of the European Union and to delay the treaty reform process, with the Nice Treaty still in force.

    Joannon's book is a pocket version (2009) on 800 plus pages from pre-historic times to about 2005.

    As a non-expert, I can only give my impression: A highly readable book and a real effort to present a balanced view.