Abstract
Labour law enforcement is crucial for achieving its social objectives, yet it often faces significant challenges in terms of its capacity to ensure the effective protection of labour rights. In the EU context, effective enforcement of labour law is further complicated by the absence of a sectoral, i.e., labour-specific, approach and the challenges in implementing EU substantive rules, often stipulated in Directives. The article assesses the enforcement landscape of EU labour law and particularly the legal foundations and the CJEU's role. Focusing on key enforcement issues, the analysis highlights how the constitutional right to an effective judicial remedy, as interpreted by the CJEU, and the inclusion of more comprehensive enforcement provisions in EU Directives are mitigating to some extent the existing fragmentation in the EU regulatory landscape, and concludes with considering future directions in EU labour law enforcement.
Introduction
Labour law that is not enforced rarely fulfils its social objectives. Existing research on enforcement of labour law at national level has highlighted a number of enforcement gaps in terms of awareness, power, mechanisms and coverage of enforcement that have to be accounted for in order for enforcement mechanisms to be effective. 1 The question of what is considered to be ‘effective enforcement’ becomes arguably even more challenging in the context of EU labour law. The relative absence of a sectoral approach to enforcement of labour rights in the EU regulatory infrastructure and the challenges associated with the implementation of EU substantive rules, often in Directives, complicate even more the effective resolution of the protective gaps associated with the enforcement of EU labour law. A central theme that emerged from the collective work in the 2022 book on the enforcement of EU labour law was indeed that the regulatory landscape for the enforcement of EU labour rights has been traditionally characterised by vertical and horizontal fragmentation, 2 limiting in turn the protection of labour rights conferred by the EU. 3 Against this context, the constitutional dimension of the right to an effective judicial remedy, as consolidated in the CFREU and interpreted by the CJEU, and the progressive incorporation of more all-encompassing enforcement provisions in EU Directives are addressing, to some extent, this fragmentation.
The present discussion evaluates the landscape of enforcing EU labour law by providing an assessment of the legal foundations and the role of the CJEU. Analysis is structured as follows. Section 1 explores the legal foundations of enforcing EU labour law, paying attention to the implications of the EU's multi-level governance and its legal order for the effective enforcement of EU labour law. Section 2 then evaluates the development of the case law of the CJEU across a range of issues that are central to the notion of effective enforcement of EU labour law. Section 3 concludes with proposals for going forward, and outlines briefly the proposal for an EU Directive on EU labour law enforcement, which was developed in the context of the collective book on enforcement of EU labour law.
Enforcement of EU labour law: legal foundations
While enforceable EU labour law related provisions are found in both primary EU law (e.g., Article 157 Treaty, Article 31 CFREU) and secondary law (i.e., Regulations and Directives), the most used mechanism to regulate labour standards in EU law has been Directives. This is the result of the legal basis applicable in respect of the competences of the EU in respect of labour law, namely, Article 153 TFEU. The Article provides for a wide range of action in relation to a broad set of objectives, including, among others, the improvement of the working environment to protect workers’ health and safety, working conditions, protection of workers where their employment contract is terminated, information and consultation of workers, representation and collective defence of the interests of workers and employers, and equality between men and women at work. However, EU legislation in these areas can be only by means of Directives. While Directives are fully binding as to the results to be achieved, they generally allow more discretion for the EU Member States. From an enforcement perspective, this creates challenges for rights-holders, as they are dependent on the implementation of the Directive into national law. What is more, the CJEU has denied their horizontal application. It is a consequence of this limitation that several landmark cases about Directives and their applicability involve social and labour measures, e.g., Francovich, 4 and Mangold. 5
Furthermore, an examination across different areas of EU labour law legislative instruments suggests that the extent to which EU law has addressed explicitly (e.g., though the provision of specific remedies and sanctions) issues of enforcement has been broadly determined by the rationale behind the legislative initiative. 6 The incorporation, among others, of specific provisions on enforcement was, hitherto, traditionally found in EU legislation that sought to provide a degree of harmonisation of labour standards in transnational settings or deal with equality rights. In the case of the former, i.e., transnational settings, enforcement provisions were initially incorporated more extensively in Regulations and less frequently in Directives. 7 An exception to this is Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers, which provides specific rights in terms of facilitating complaints by individual workers, 8 but also trade unions and other third parties. 9 On top of a requirement on EU Member States to provide for effective, dissuasive and proportionate penalties for any breaches of the obligations under that Directive, 10 its Articles 11 and 12 also impose specific rules in terms of the liability of the employer of the posted worker and in respect of subcontracting, respectively. 11 In respect of equality rights, enforcement provisions were a feature of EU Directives in this area starting from the 1970s (e.g., Directive 76/207/EEC). 12 Initially, the Directive contained only a single provision requiring Member States to enable ‘all persons who considered themselves wronged by failure to apply to them the principle of equal treatment [set out elsewhere in that Directive] to pursue their claims by judicial process’. 13 This later evolved—in part as a codification of CJEU case law 14 — into a self-standing chapter on remedies and enforcement. 15 The most recent culmination is Directive 2023/970. 16 The Directive specifically addresses pay transparency and provides reinforced enforcement mechanisms. In doing so, it attempts to address a range of protective gaps often identified regarding enforcement of equality laws. The Directive contains provisions to address, among others, awareness gaps through requiring Member States to prohibit contractual terms that restrict workers from disclosing information about their pay and to order the respondent to disclose relevant evidence. Other provisions address mechanism and power gaps through introducing, for example, the ability to issue a recurring penalty payment order where a respondent does not comply with orders issued in the case of an infringement of rights or obligations related to the principle of equal pay. 17
Outside issues of equality and transnational concerns, a number of EU labour law Directives have tended to prescribe how an employer shall treat employees but have not specified what is to happen if the employer does not follow these rules. 18 Alternatively, Directives make general reference to national remedies and sanctions. General reference to national law in EU secondary law tends to be more commonly found in respect of sanctions. 19 However, more recent EU secondary legislation includes extensive specific enforcement provisions, even though the substantive rights recognised in these instruments do not have a transnational dimension, nor are they concerned with equality rights. Here again, there is some evidence that the provisions on enforcement address different types of protective gaps in relation to enforcement. For example, Directive 2019/1152 on Transparent and Predictable Working Conditions provides for legal presumptions where a worker has not received in due time all or part of the documents required under the Directive, addressing thus awareness gaps of claimants in terms of their knowledge about rights. 20 At the same time, in contrast to several anti-discrimination Directives containing provisions requiring access to courts or at least to judicial and/or administrative procedures, Directive 2019/1152 does not expressly require the right of access to court, only a more general ‘right to redress’. Such a right must nevertheless exist and must be respected by the Member States - regardless of whether the Directive expressly provides for it - based on EU law principle of access to justice and effective redress.
In light of the fact that substantive rights contained in EU labour law Directives must be respected and enforced by the Member States regardless of whether explicit incorporation of enforcement provisions in EU labour law Directives has taken place, the broader architecture of EU law in respect of compliance and enforcement becomes crucial. 21 Under Article 4(3) TEU, Member States have an obligation to guarantee fulfilment of obligations resulting from the acts of the Union. To complement this, Article 19(1) TEU provides that it is for the Member States, and therefore in principle not for the EU, to provide ‘remedies sufficient to ensure effective legal protection in the fields covered by EU law’. 22 The principle of effective judicial protection, referred to in Article 19(1) TEU, 23 is a general principle of EU law stemming from the constitutional traditions common to the Member States. It has been enshrined in Articles 6 and 13 of the European Convention on Human Rights 24 and is also linked to the rule of law within the EU, 25 when Member States are acting within the scope of EU law and thus transposing its provisions into national law. 26 The CJEU first relied on the principle of effective judicial protection to assure the right to an effective remedy in a labour law case, von Colson and Kamann. 27 The Court there held that, while Directive 76/207/EEC did not require a specific form of sanction for unlawful discrimination, the sanction must guarantee ‘real and effective judicial protection’. 28 Importantly from an EU labour law perspective, national remedies and procedures must be able to afford effective judicial protection, irrespective of whether the substantive right to be guaranteed derives from the direct effect of clear, precise and unconditional EU rules or from an interpretation of national law consistent with the purpose of EU law or from state liability for a failure to transpose EU law. 29
The principle of effective judicial protection has been reaffirmed by Article 47 CFREU, which establishes a right to an effective remedy and a fair trial. 30 Going further than the ECHR and the ECtHR case law, Article 47 includes a broader scope for the right to fair proceedings and the right to legal aid in its paragraphs (2) and (3) respectively. The provision guarantees individuals the right to legal recourse for any violation of their rights, whether fundamental or otherwise, under EU law. 31 This duty is primarily assigned to the Member States (as provided for in Article 19 TEU). 32 Their courts serve as crucial components of the EU judiciary, acting as ‘[Union] courts of ordinary jurisdiction’. In its 1976 decision in Rewe, the CJEU held that, based on the principle of sincere cooperation set out in Article 4(3) TEU (as it is now), ‘it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of [EU] law’. 33 However, this principle of national procedural autonomy, 34 as it is generally known, is restricted in two ways. First, it must not be more difficult to enforce EU rights than similar domestic rights (principle of equivalence). Second, the relevant rules must not render it virtually impossible or exceedingly difficult to exercise EU rights (principle of effectiveness). Both principles enable the development and operation of different models of the protection of EU legal rights at national level. Although there is some overlap between the principle of effective judicial protection and the so-called ‘Rewe mantra’, i.e., the principles of equivalence and effectiveness, they ‘serve different purposes and are driven by different rationales’. 35 The equivalence/effectiveness test outlines the boundaries of national discretion regarding the enforcement of EU law while the principle of effective judicial protection safeguards the right to an effective remedy as a crucial human right in a rule of law system. 36
From the perspective of labour law, it was anticipated that the incorporation of the CFREU into EU primary law had the potential to improve substantially the effectiveness of EU labour law enforcement. 37 A reading of Article 47 CFREU confirms its inclusive coverage, thus overcoming the challenge of the contractual status of claimants, usually encountered in labour law. 38 Secondly, Article 47(2) 2nd sentence CFREU on the possibility to be advised and represented is important, particularly with regard to the employment relationship, as trade unions play an important role in terms of legal advice and representation before courts. Thirdly, Article 47 also has a financial dimension through addressing the issue of legal aid. 39 Although relating to environmental matters the CJEU linked the requirement that the cost should be ‘not prohibitively expensive’ to the observance of the right to an effective remedy enshrined in Article 47, while at the same time connecting it to ‘the principle of effectiveness, in accordance with which detailed procedural rules governing actions for safeguarding an individual's rights under European Union law must not make it in practice impossible or excessively difficult to exercise rights conferred by European Union law’. 40
More importantly, Article 47 is one of the few CFREU rights that have been found by the CJEU to be horizontally directly effective, including between workers and employers. In Egenberger, 41 the CJEU held that Article 47 is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such. The horizontal direct application of Article 47 CFREU was re-affirmed more recently in the case involving clause 4(1) of the EU Framework Agreement on Fixed-Term Work. 42 In K.L., 43 the CJEU was called to rule on whether clause 4 of the Framework Agreement must be interpreted as precluding national legislation according to which an employer is not required to state, in writing, the reasons for the termination of a fixed-term employment contract with a notice period, although it is bound by such an obligation in the event of termination of an employment contract of indefinite duration. Importantly, both the referring court and the Advocate General related the case to the scope of Article 21 CFREU, but the CJEU refrained from ruling on the request for an interpretation of Article 21 CFREU on the basis that it was not necessary. What is more important from the perspective of EU labour law is that the CJEU moved closer to diluting the prohibition of horizontal direct effect of Directives by establishing that the difference in treatment introduced by the Polish law undermines the fundamental right to an effective remedy enshrined in Article 47 CFREU. 44 The decision of the CJEU in IR 45 also exemplifies the impact of the CFREU in terms of not only influencing procedural law, but also leading to an increase of judicial reviews of substantive law, in this case leading ultimately to the invalidity of the termination. 46 But while Article 47 CFREU has been described as ‘perhaps the most important provision of the Charter’, 47 there are still questions around the extent to which it has been instrumental in contributing substantially to the effective enforcement of EU labour law. 48 As discussed by Adams-Prassl, this can be attributed, firstly, to the significant deference in assessing Member States’ choices when it comes to different areas of EU labour law and, secondly, to the difficulty of mandating the creation of specific, positive duties to be imposed on employers. 49
The judicial architecture of EU labour law enforcement and the role of the CJEU
In the EU, as a Union founded on the rule of law, courts hold a pivotal position in its constitutional framework. It is for the national courts and tribunals and the CJEU to ensure the full application of EU law in all Member States and the legal protection of the rights of individuals under that law. 50 In EU labour law, where most rights rely on secondary legislation, it is the preliminary reference procedure under Article 267 TFEU, 51 sometimes referred to as ‘indirect enforcement’ since it does not allow for direct access to EU courts, that has been at is the core of the judicial system of supervision of EU law. In the period 2020–2024, 126 cases involving preliminary references in social policy were decided by the CJEU. 52 Most of them had been submitted by lower courts and, as Lörcher observes, this raises the question of whether Article 267 TFEU is applied fully. 53 Given space constraints, the present section focuses on specific areas where the CJEU's case law, developed on the basis of preliminary references, has dealt with different aspects of the enforcement of EU labour law.
Horizontal effect of CFREU
The question of the horizontal direct effect of CFREU rights is of significance when considering the effectiveness of enforcement of EU labour law for two reasons. The first is that EU labour law consists of almost exclusively of Directives, which have no horizontal direct effect as such. The second is that a particular characteristic of the employment relationship is that it is horizontal in nature, dealing in a number of times with purely private disputes. 54 Against this context, the horizontal effect of CFREU rights, especially those contained in the Solidarity chapter, can constitute a valuable tool for promoting effective enforcement through modifying the substance of the employment relationship, in the case of labour rights, to protect the ‘weaker party’. 55 As seen in the previous section, Article 47 CFEU has been found in numerous cases to be directly applicable, albeit its use in labour law cases has not been extensive to date. But there is evidence that in respect of rights under the Solidarity chapter, the approach adopted by the CJEU is changeable, moving between explicitly acknowledging and denying the existence of direct horizontal application. 56 In cases involving discrimination in respect of, for instance, age and religion, the CJEU has allowed for the possibility to invoke EU fundamental rights against a private party, even when the matter has been attracted within the scope of EU law by virtue of a Directive, which in itself cannot be invoked against a private party. 57 The justiciability of social rights in such cases has been made possible by the development of a formula that elevates the prohibition of discrimination as a general principle of EU law and not on EU social rights as such. 58 In addition, the CJEU has ruled that the principle of paid annual leave vested in Article 31(2) CFREU has horizontal and vertical direct effect, meaning it can be invoked directly in proceedings between private individuals 59 and between private individuals and emanations of the state. 60 However, this flexible formula has not been used to extend the horizontal scope of the Charter to collective rights in the social domain. 61 The AMS decision 62 by the Grand Chamber involving Directive 2002/14/EC on information and consultation of employees seemed to dispute whether Charter provisions that make reference to national laws and practices (e.g., Article 28, 30 and 34) could be applied horizontally. 63
State liability
The second and inter-related issue concerns again one of the central characteristics of Directives as a mechanism for regulating labour standards in the EU, i.e., that they cannot in themselves be relied upon as such against an individual (such as a private sector employer), 64 unless a provision of a Directive gives concrete expression to a right in the CFREU. 65 It has been long established by the CJEU that in such cases the victim's remedy primarily takes the form of a damages action against the State. 66 The principle of state liability was first applied in Francovich and has been developed in subsequent case law. 67 Individuals harmed have a right to damages when three conditions are met: the rule of EU law breached is intended to confer rights upon individuals; the breach is sufficiently serious; and there is a direct causal link between the breach of EU law and the damage sustained by any individual. 68 While the CJEU has offered relatively clear guidance as to how to define the first two conditions, 69 it has not provided much clarification in terms of the issue of causality. Instead, it is typically left to competent national courts to determine how this condition is to be understood and applied in individual cases. 70
From a labour law perspective, a number of issues are worth considering here. The first is whether state liability should be considered an adequate substitute for employer liability. 71 State liability provides damages for economic losses incurred by the claimant, but does not give the claimant direct access to the EU rights conferred through the law. Instead, what it does is to grant such access indirectly as the Member State, having been found in breach of its EU law obligations and ordered to compensate the affected claimant, will proceed to the amendment/clarification of the legislation to avoid any further claims. Following the finding of state liability, the state invariably grants access to individuals through remedial action. 72 On one hand, it can be argued that state liability provides an appropriate mechanism for effective judicial protection, including in the context of labour law. 73 It essentially functions to fill in the significant regulatory gap left from the lack of direct effect of Directives vis-à-vis employers in the private sector. 74 Despite the CJEU's increasing reliance, as it seems, on the CFREU to hold certain provisions as directly effective in the context of private parties, 75 questions remain as to the extent to which such an approach will be adopted in disputes involving labour rights. 76 As labour claimants may not be able to rely on Article 47 CFREU to enforce their rights, state liability may offer an alternative avenue for redress.
On the other hand, various limitations may operate to dampen claimants’ ability to successfully seek redress on the basis of state liability claims. The first relates to possible areas in which the liability rule may not be applicable. This may be where, for instance, a Directive may be found to have a meaning that the Member State could not have anticipated, so that state liability does not arise. 77 A second limitation relates to more practical issues relating to the resources needed for claims to be brought before courts. For instance, in the United Kingdom before its government took it out of the EU (‘Brexit’), trade unions and some public bodies did fund state liability claims, but these were relatively rare. 78 The fact that state liability has been used to serve commercial interests confirms the challenges associated with such claims on behalf of labour claimants. 79 Thirdly, state liability may not be effective where a legal entitlement cannot be readily provided with a monetary value, e.g. when it concerns limitations on working time and information and consultation rights. 80 Fourthly, the claimants may not have an ‘identifiable right’ within the meaning of Francovich. 81 Finally, state liability for damages may have perverse effects in terms of private actors’ liability to pay damages for breaches of EU law. The Laval case illustrates the implications of this for trade unions, in particular. When the case returned to Sweden, the Swedish Labour Court relied on an interpretation of Courage, 82 Manfredi 83 and Raccanelli 84 as cases that constituted expressions of a general principle of horizontal liability and went on to find that liability for damages can be extended to horizontal relations. 85 These issues have led authors such as Reich to conclude that ‘Francovich liability cannot substitute for absent enforcement actions by the Commission or Member States when they are competent and required to act’. 86 This is even truer in the case of labour law, in respect of which infringement proceedings by the European Commission have been scarce. 87
Access to justice
Central to the effective enforcement of EU labour law is access to justice. This helps right-holders to seek redress, support strategic litigation, 88 or seek collective redress. 89 As discussed above, the cornerstone for the CJEU is the ‘principle of effective judicial protection of the rights which individuals derive from EU law’. Reaffirmed by Article 47 CFREU, it comprises ‘in particular, the rights of the defence, the principle of equality of arms, the right of access to a court or tribunal and the right to be advised, defended and represented’. 90 The nature of EU labour law provisions, i.e., regulated mostly through Directives and then transposed through national legislation in conjunction with prudential avoidance on the part of the EU, 91 means that enforcement very much depends on national rules 92 and their application by courts.
Seeing access to justice as access to the EU judicial system, i.e., to national courts applying EU law or/and the CJEU, the CJEU recently found that in order to ensure that courts are in a position to offer effective judicial protection, it is essential to maintain their independence. 93 This includes the receipt of a ‘level of remuneration commensurate with the importance of the functions they carry out constitutes a guarantee essential to judicial independence’. 94 Still in the context of emphasising the need for an independent authority to ensure effective judicial review, the CJEU answered in negative in Egenberger 95 when asked to consider whether Article 4(2) of Directive 2000/78 meant that a church or other organisation whose ethos or belief is based on religion or belief may itself determine authoritatively the occupational activities for which religion constitutes a genuine, legitimate and justified occupational requirement. 96 On the other hand, there is evidence of challenges when it comes to the requirements imposed on specific categories of workers, e.g., posted workers, to have access to judicial review, as this has been denied in the state of destination and difficult in the state of origin. 97 The question of access becomes more problematic in cases where workers, e.g., seasonal workers, face severe problems in receiving information concerning their employment situation and related rights, as well as information on how to claim these rights. Indicative of such challenges is the fact that no cases have been brought before the CJEU that concern interpretation of the Seasonal Work Directive. 98
Broadened legal standing for civil and industrial parties are also considered a useful form of protection against violations of labour rights. As argued by Rasnača, the CJEU has been favourable towards domestic legislation facilitating collective redress in the past, but only to a certain extent. 99 In NH, the Court confirmed the standing of the association to bring legal proceedings for enforcing non-discrimination rights and claim damages within its scope of activity recognised under national legislation, irrespective of its non-profit or for-profit nature. 100 In Feryn, the CJEU ruled that the Racial Equality Directive did not prevent Member States from granting more favourable access to court rules than those embodied in the Directive. 101 In addition, in Accept, it ruled that the Equality Framework Directive30 did not preclude Member States from giving certain organisations a right to bring proceedings in the name of identifiable complainants, or even in the absence of one.31 However, in Schrems (albeit in the area of consumer protection), the CJEU adopted a more restrictive approach towards EU law creating such possibilities itself (rather than ensuring compliance with existing national rules on collective redress). 102 An important actor in enforcing labour law is trade unions. Collective actors, such as trade unions, are able to function as actors of enforcement of EU labour law in three ways: (i) through monitoring the legal exercise of the managerial prerogative, (ii) through access to justice, and (iii) through recourse to collective action. 103 A number of EU Directives confer a right on collective actors to obtain access to justice ‘in accordance with the criteria laid down by their national law’, but without explicitly using the term ‘trade unions’. 104 Usually, national law provides for the possibility to be advised and represented by trade unions. The role of trade unions can be strengthened if the members assign their claims to the trade union concerned to be better protected. 105 In Sähköalojen ammattiliitto, 106 which concerned Directive 96/71, the employer argued that the Finish trade union, i.e., Sähköalojen ammattiliitto, did not have standing to bring proceedings on behalf of the Polish posted workers in Finland on the ground that Polish law prohibits the assignment of claims arising from an employment relationship. The CJEU confirmed the rules set out in the Polish Labour Code should not prevent a Finish trade union from bringing an action before the Finish courts to recover for the posted workers pay claims relating to the minimum wage. 107 While it is true that national labour law systems have developed over the years sophisticated approaches towards enforcement of labour law, the regulatory developments in certain areas of EU law, especially consumer law, point to the potential of EU law measures in this area. 108
Remedies and sanctions
There is considerable diversity when it comes to the ways through which EU labour law deals with the question of remedies and sanctions. This ranges from an explicit recognition of rights, in the specific EU law instruments, without though reference to remedies or sanctions, 109 to general references to national remedies or sanctions 110 or provision of specific means for securing redress against violations of EU labour rights. 111 This diversity may help explain the varying deference to national remedies and sanctions that the CJEU has exhibited over the years in the area of EU labour law. 112 In addition, it has been accepted that the CJEU's stance in respect of how it seeks to preserve or limit restrictive Member State remedies and sanctions more generally has been modified over the years. From an initial position where the CJEU was satisfied provided only that the action for the protection of the EU right did not prove virtually impossible, 113 the CJEU moved to require that the remedies provided by the national legislature should not have made the exercise of rights deriving from Union law ‘virtually impossible or excessively difficult’. 114 Reflecting a growing judicial activism by the CJEU, a positive and substantive approach was later favoured, meaning ‘that a remedy should not only compensate the victim for a potential loss or injury to a right, but also deter potential wrongdoers for violating it in the first place’. 115 Since then, the CJEU approach has been defined as ‘contextual, as it is directed at identifying a point of balance and dynamic equilibrium between the principles of effectiveness and procedural autonomy of Member States in the individual specific cases’. 116 In conjunction with Article 47 CFEU, there is now some evidence to suggest that the CJEU has shifted further away from prudential avoidance. For example, in Braathens, 117 which concerned remedies for discrimination on grounds of ethnicity where the defendant had paid compensation without acknowledging wrongdoing, the Court was asked to decide whether a violation of a primarily non-material right could be adequately compensated by the award of monetary damages. The CJEU concluded that in such a case, a claimant could not obtain a judgment recognising that they had been subject to unlawful discrimination. 118 On this basis and without deferring final judgment as to the implications of national law to the referring court, it held the national legislation to be incompatible with Articles 7 and 15 of the Directive as read in the light of Article 47 CFREU. 119
A particular issue worth outlining at greater depth includes that of compensation in the context of sanctions. A number of EU labour law Directives refer to compensation (in the preambles or articles), indicating a broader tendency in EU law to resort to monetary compensation as the default remedy. 120 The assessment of this remedial mechanism by the CJEU usually takes place in the context of effective, proportionate and dissuasive sanctions. 121 As Advocate General Mengozzi suggested in C-407/14, the origins of the reference to compensation as a type of penalty were to be found in von Colson and in Harz. 122 According to CJEU case law, the rules on sanctions must in particular ensure ‘real and effective legal protection’. 123 The severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely dissuasive effect 124 while respecting the general principle of proportionality. 125 In this respect, it has been held that a purely symbolic sanction cannot be regarded as being compatible with the correct and effective implementation of Directive 2000/78. 126 However, it does not extend to punitive damages. 127 More recently, there is some evidence of reconsideration at EU level regarding the effectiveness of compensation as a remedial mechanism. The limits of such mechanisms have been emphasised in research 128 and recently acknowledged by the European Commission. 129 These include that the sanctions foreseen by national legal systems are very low; that judges are relatively hesitant in applying sanctions at all, specifically in ‘first time cases’, and/or tend to issue sanctions close to the minimum amount rather than trying to establish adequate amounts to the problem; and that in many cases sanctions lack effectiveness as they are either not complied with or do not encourage a change of attitude. 130 Outside the area of equality legislation and more recently, EU Directive 2019/1152 on transparent and predictable working conditions made direct reference in the preamble to the limits of systems centred on damage claims in cases such as failure to provide information, where the nature and value of the damage is impossible to determine and prove: ‘redress systems based solely on claims for damages are less effective than systems that also provide for penalties, such as lump sums or loss of permits, for employers who fail to issue written statements’. 131
Rules of evidence and burden of proof
Standard rules of evidence – whoever alleges something has the burden of proving it – would make it very difficult to challenge violations of labour rights. Equality of arms requiring the existence of procedural law mechanisms to ensure a ‘procedural balance’. The CJEU has recognised that thisstems from the principle of ‘effective judicial protection’. 132 The doctrine of reversing the burden of proof was initially developed by the CJEU in cases of discrimination to reinforce the possibilities for individual enforcement of EU labour law. 133 The strongest procedural protection is the presumption in favour of the worker, which can be rebutted (and proved) by the employer, for example, in the Whistleblowers Directive 2019/1937 134 and the Transparent and Predictable Working Conditions Directive. 135 Lower levels of protection have been codified in EU labour law Directives dealing with discrimination. 136 Even if ‘shift’ was the term used by the CJEU in one of the earlier cases dealing with discrimination, i.e., Enderby, the Directives rather divided the burden of proof between the two parties. 137 Where a person claiming to be a victim of discrimination can establish facts from which it may be presumed that discrimination has occurred, it is for the respondent to prove that there has been no discrimination. 138 The CJEU is becoming more generous, albeit not always with clarity, in the guidance it is willing to provide to national courts, 139 but this has not been extended, as seen in both the Kelly and Meister cases, to interpreting the rules on the burden of proof as meaning that claimants have the right to gain access to information on the process of recruitment. 140 In cases outside discrimination, the CJEU's approach seems to rest on the ‘mandatory nature’ of the respective provision and the effet-utile principle to justify that the employer has to bear the burden of proof. 141 In Max Planck, the CJEU held that it was up to the employer to show that it had exercised all due diligence in order to enable the worker to actually take the paid annual leave to which he was entitled under Directive 2003/88. 142 In doing so, the CJEU recognised that the worker must be regarded as the weaker party in the employment relationship, and it is therefore necessary to prevent the employer from being in a position to impose upon him a restriction of his rights. 143
Conclusion
The analysis in the previous sections confirms Bercusson's argument that EU labour law ‘has specific qualities of enforceability which distinguish it from domestic labour laws’. 144 In the relatively long now history of EU labour law, there is evidence of meaningful interaction between EU policymakers and the CJEU, with the CJEU developing ways to address some of the protective gaps associated with the enforcement of EU labour law (e.g., in respect of state liability) and EU policymakers drawing inspiration from the CJEU case law to introduce more explicit provisions on effective enforcement of labour rights, e.g., in equality legislation. At the same time, it is still possible to discern considerable fragmentation in the enforcement of EU labour law. This is the result of a combination of factors, encompassing challenges at both vertical and horizontal levels. In 2017, Garben et al. called for the adoption of a new Directive to cover a broad set of factors enhancing compliance with EU rules. 145 In our book on the effective enforcement of EU labour law, 146 we took one step further by developing a draft proposal for a Directive on the enforcement of EU labour law. The proposal is meant to enhance and broaden enforcement possibilities in a way that is not generic but is tailored to EU labour law, as well as to broaden the opportunities for actors already active in the enforcement process whose options are at times curtailed by national law. In putting this proposal forward, we were cognisant of the need to respect the diverse legal traditions and institutional differences between EU Member States, as well as of the need to ensure the effectiveness of already existing EU enforcement-oriented provisions in the area of labour law. In setting down common minimum standards, the purpose of this Directive is to remedy the enforcement gaps, presently existent across a wide range of EU substantive labour rights, and ensure ultimately that EU labour law fulfils its social functions.
Footnotes
Acknowledgements
The author would like to thank the organisers of the ECE Annual Conference as well as the European Commission officials who provided useful feedback on earlier versions of the paper.
Declaration
The contents of this article are the sole responsibility of the author and do not reflect the official views of the ILO.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the EPSRC, (grant number EP/Y036875/1).
Ethical considerations
No ethical approval was required.
