A controversial legal opinion calling for the annulment of the Directive on Adequate Minimum Wages (AMWD) was based on a “historically mistaken” reading of EU law that failed to consider established case law.
That is the conclusion of the detailed 51-page counter-opinion published today by the European Trade Union Confederation (ETUC) ahead of the final judgement by the Court of Justice of the European Union (CJEU). Read the Executive Summary here.
Last month, Advocate General Emiliou delivered an Opinion on a case brought by Denmark against the European Parliament and the Council of the EU which called for the annulment of the entire Directive on the grounds “it is incompatible with Article 153(5) of the treaties.”
The ETUC rejects this argument and is looking to the Court to come to a different conclusion and not follow the non-binding proposals of the Advocate General, and instead to uphold the AMWD in its entirety for the following reasons:
- The Advocate General reached his conclusions by failing to attach sufficient weight or even to recognise important aspects of the international and European legal framework or relevant case law;
- The AG also ignores the social objectives the EU is obliged to deliver upon under the treaties in general and under Social Policy title in particular, as well as the specificities of social directives leaving sufficient flexibility to member states and social partners to reach those objectives while implementing the AMWD;
- The methodology applied by the Advocate General furthermore demonstrates several shortcomings, together with certain inconsistencies and a lack of contextualisation;
- The Advocate General relied on a literal and technical interpretation of the ‘pay’ exclusion which is not consistent with the Treaties, EU secondary law and, in particular, the established case law of the CJEU.
Esther Lynch, ETUC General Secretary, said:
“The detailed ETUC counter-opinion we are publishing today shows why we should expect the CJEU to find that the directive is entirely within the competences of the EU and should be upheld to protect millions of working people.
“If Advocate General Emiliou’s outlier opinion is followed, it would have profound consequences for millions of European workers who are already relying on the Adequate Minimum Wages Directive, which crucially seeks to increase collective bargaining coverage and stop union busting.
"This case is taking place at a time when the number of working people who can’t afford heating has increased by 10 million and rent alone accounts for a third of the monthly pay of minimum wage workers.
“Member states should not use this as an excuse not to implement the directive.”
Isabelle Schömann, ETUC Deputy General Secretary, said:
“It is clear that the arguments which led the Advocate General to call for the complete annulment of the directive are based on a narrow interpretation of the treaties, ignore decades of the court’s own case law on this issue and a misunderstanding of how social partners operate and how EU social objectives are to be respected.
“The ETUC calls on the CJEU judges to confirm its longstanding established case law and disregard the non-binding opinion as it has already done in the past in similar cases on the ‘pay’ exclusion contained in Article 153(5) of the Treaties.”
