European Parliament, 30 from national parliaments and one from the Commission was appointed by the Member States meeting as the European Council in Cologne. The task of this "Convention" was to formulate an EU Charter of Fundamental Rights and Freedoms, to be presented to the European Council meeting in Nice in December 2000.
There were fierce debates among members of the Convention. Some wanted the EU Charter to include only the traditional liberal civil and political rights (rights to life, liberty, property, conscience, religion, expression, etc.), excluding social rights (working conditions, social security, health, environment, etc.) altogether. Among those advocating the inclusion of social rights, some wanted them confined to a separate section of the EU Charter as mere "programmatic objectives" of government, while others wanted them given equal status to other "justiciable" human rights, enforceable by the courts. As to the legal status of the rights in the EU Charter, some wished to incorporate it into the EC Treaty, so it could be directly enforced in national courts, while others wanted it to be purely declaratory, with no legal effects whatsoever.
In December 2000, the European Council of EU Member States at Nice adopted a compromise. On the one hand, the EU Charter of Fundamental Rights did include fundamental social rights having equal status to traditional civil and political human rights. Among these are at least three fundamental trade union rights: Article 12: Freedom of assembly and of association, Article 27: Workers' right to information and consultation within the undertaking, and Article 28: Right to collective bargaining and action. On the other hand, the Charter was approved as merely a political declaration. A decision on its final legal status was deferred to the next Intergovernmental Conference, scheduled for 2004.
However minimal its content by European standards, the trade union rights in the EU Charter go beyond anything available in British legislation, which Tony Blair has proclaimed as the most restrictive in Europe. In this connection, there were some who argued that even a purely declaratory Charter could be taken up by the European Court of Justice keen to prove its credentials in protecting fundamental human rights. In this way, the EU Charter might offer possibilities to British trade unionists.
BECTU
An early and encouraging indication arrived after barely eight weeks in a case in which Thompsons was acting on behalf of the broadcasting union, BECTU, to challenge the UK government's implementation of the Working Time Directive (BECTU v Secretary of State for Trade and Industry). The UK government made entitlement to paid annual leave subject to a qualification period of 13 weeks' employment. There is no such qualification in the Directive and, as EC law has supremacy over national law, the UK, as a Member State, is obliged to respect the rights guaranteed by EC law. BECTU complained because many of their members on short-term contracts were being deprived of their right to paid annual leave under EC law by the UK government's legislation.
On 8 February 2001 Advocate General Tizzano delivered his advisory Opinion upholding BECTU's complaint. The European Court still has to deliver its judgment, and the Opinion of Advocate General Tizzano is not binding on the Court. Nonetheless, the Opinion is a persuasive precedent with which the Court tends to agree in about 85% of cases.
What is particularly important about the Advocate General's Opinion is that he looks at the right to paid annual leave "in the wider context of fundamental social rights" (paragraph 22). A worker's right to a period of paid annual leave is to be given the same fundamental status as other human rights and guaranteed absolute protection.
Tizzano then pointed out that "Even more significant, it seems to me, is the fact that that right is now solemnly upheld in the Charter of Fundamental Rights of the European Union, published on 7 December 2000 by the European Parliament, the Council and the Commission after approval by the Heads of State and Government of the Member States" (paragraph 26). He freely admits that "formally, [the EU Charter] is not in itself binding"(paragraph 27). However, he states unequivocally: (paragraph 28)"I think therefore that, in proceedings concerned with the nature and scope of a fundamental right, the relevant statements of the Charter cannot be ignored; in particular, we cannot ignore its clear purpose of serving, where its provisions so allow, as a substantive point of reference for all those involved Member States, institutions, natural and legal persons - in the Community context. Accordingly, I consider that the Charter provides us with the most reliable and definitive confirmation of the fact that the right to paid annual leave constitutes a fundamental right".
This is the worst nightmare of those who fought against the inclusion of fundamental social rights, including trade union rights, in the EU Charter. The trade union rights in the EU Charter are "a substantive point of reference", and not only for the Community institutions, but also for Member States (for example, as in BECTU, where a Member State is responsible for transposing an EC directive including the fundamental social right to paid annual leave), and even for private persons, human and corporate.
The potential for British trade unions
The potential of the trade union rights in the EU Charter will be apparent when they are compared with UK laws which restrict or inhibit the rights of workers and their representatives to information and consultation, to join trade unions and have their unions recognised for the purposes of collective bargaining, and to take strike action. What if an employer refuses to enter into collective agreements, or dismisses strikers exercising their fundamental right to take strike action, or closes down the undertaking without advance information and consultation? Will EU law become available to challenge violations of what are declared in the EU Charter to be the fundamental human rights of trade unionists?
Of course, the Opinion of the Advocate General awaits the decision of the Court of Justice. Also, crucially, the EU Charter can be used only where the issue is governed by EU law (as in BECTU, where paid annual leave was regulated by the Working Time Directive). There are EU laws on information and consultation, where the EU Charter may become very relevant, but other areas, such as strikes and collective bargaining, may not be covered by any EU law or only peripherally so. Nonetheless, as EU law continuously expands, the actions of Member States and private individuals and corporations may come to be challenged where they fail to respect what are now recognised as the fundamental human rights of workers and their representatives.
During the period up to the Intergovernmental Conference planned for 2004, when key decisions are to be made, there will be critical debates, both over the final legal status of the EU Charter and, no doubt, over possible changes to its content. Litigation such as the BECTU case will play an important role in this debate.