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Above Law 01

Is the Commission Above its Law?
Health and Safety
Legal Cases

Is the Commission Above its Law?

Guido Strack is a German jurist who came to work at the Publications Office. There he discovered and reported mismanagement of public money. His report was not followed up. Things went badly and he eventually retired on a disability pension. There has been a lot of litigation between him and the Commission.

In one of his cases the Court of Justice an important legal question has come up; does the Commission have the right to exempt itself from EU laws on health and safety standards that it drafted and that are binding on all other European employers?

Guido Strack has asked unions to submit comments on his case.

Here is what SID has to say.

1) There is a closely related question that should be mentioned in this context; that of public and Institutional respect for European Union law. The Commission is the draftman of EU secondary legislation and is also charged with monitoring its uniform and consistent application. Finding that this Institution has the right to excuse itself from respecting the very laws that it has drafted can only exasperate the widespread contempt of the law and Institutions of the Eurpean Union. Such contempt would be justified because placing the government above its own law is the definition of absolutism.

2) For more than a decade the Charter of Fundamental Rights has been binding on the Commission by virtue of its Article 51. Article 6 TFEU reinforces this obligation.
Article 31 of the Charter;
“Fair and just working conditions
1. Every worker has the right to working conditions which respect his or her health, safety and dignity.
2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.”

3)Article 1e of the Staff Regulation;

“… 2. Officials in active employment shall be accorded working conditions complying with appropriate health and safety standards at least equivalent to the minimum requirements applicable under measures adopted in these areas pursuant to the Treaties. “

4) The judgement in case C-84-94 United Kingdom v. Council (concerning the Working Time Directive) and subsequent jurisprudence have established that rest periods for workers fall under the heading of “health and safety standards”. Thus, Article 1(e) of the Staff Regulations is linked to Artcle 31(2) of the Charter of Fundamental Rights. Breaking this link would weaken the unity of European Union law.

5) Regulation 88/2003 was “adopted in these areas pursuant to the Treaties”. It lays down the “minimum requirements” for annual vacations and other rest periods that the Commission must respect. To exempt it from the obligation that it has helped to impose on all European Union employers would be indirect discrimination. If the Commission pleads that it deserves more favorable treatment than other European employers then it must bear the full burden of proof.

6) To weaken the links between the Charter of Fundamental Rights, Regulation 88/2003 and the Staff Regulation would set an unacceptable precedent for interpreting one and the same statute in different ways for different employers. Many employers are eager to win an exemption from EU law. Some of them have much stronger reasons on their side than does the Commission.
7) The Commission is ideally placed to initiate a reform of Regulation 88/2003. An alternative would be to transparently request the deletion of Article 1(e) from the Staff Regulations. Both of those measures would be regretted by unions and employees, but they would leave European Union law intact.

Created by: admin last modification: Tuesday 12 of February, 2013 [16:25:54 UTC] by admin

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