Living wages in international and European law

Abstract

German

French

A number of countries worldwide provide for a statutory minimum wage. Generally speaking, however, it is not a living wage, although the right to a living wage is guaranteed in a variety of agreements under both international and European law. The Council of Europe’s European Social Charter (ESC), for example, codifies a living wage and, according to the case-law of its supervisory body, the level of 60 per cent of the net average wage is to be taken as the basis for appropriate remuneration. This article argues that the Charter of Fundamental Rights of the European Union also incorporates the right to a living wage, which should be at least 60 per cent of the net average wage. The Charter is legally binding for EU institutions, agencies and other bodies. Member States are bound only to the extent that the material scope of the relevant EU laws has been opened, which is the case when EU law is implemented or when obligations arising out of specific Union legislation are required for the relevant subject area, as will be explained in the article. In purely national situations nevertheless, values laid down in international law have to be observed when interpreting national laws.

Keywords

Living wage European Social Charter Charter of Fundamental Rights of the European Union ILO standards UN Social Covenant

Introduction

The majority of EU Member States provide for a statutory minimum wage, although the amount guaranteed is usually not sufficient to secure adequate protection above the poverty threshold (Clauwaert, 2019: 1–8; European Committee on Social Rights, 2018; Lübker and Schulten, 2018: 2–4).¹ This article analyses the extent to which the right to a living wage is guaranteed under international and European law and how such a living wage is defined therein. Furthermore, the impact of international and European legal standards at national level is explored using Germany as an example.

The right to a living wage as laid down in various legal documents

The right to a living wage is enshrined in a variety of agreements under international law, but it can also be found in European Union legal documents.

The right to a living wage in international law

Already the Universal Declaration of Human Rights of 1948 refers, in Article 23(3), to ‘the right to just and favourable remuneration ensuring for himself [note: this means everyone who works] and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection’.² Albeit generally accepted world-wide as part of ‘The International Bill of Human Rights’, the UN Resolution is not a legally binding document.

Concerning legally binding international law, the International Covenant for Economic, Social and Cultural Rights (ICESCR) of 1966 (UN Covenant) codifies in Article 7 ‘just and favourable conditions of work’ (United Nations, 2016). Under Paragraph a) it is specified that this is intended as remuneration that provides all workers, men and women, with a ‘decent living’. It further explains that this means ‘a decent living for themselves and their families’, which is intended to ensure an appropriate livelihood for them all.³ The UN Covenant has been ratified by all 28 EU Member States and is thus part of the law applicable in all EU member countries.

The right to a living wage can also be derived from ILO standards: already the ILO’s Constitution of 1919 contains ‘the provision of an adequate living wage’ in its preamble. The same holds true for the ILO Declaration of Philadelphia of 1944, which is part of the ILO Constitution and talks about a ‘minimum living wage’ (ILO, 1944). In addition, the ILO Declaration on Social Justice for a Fair Globalization from 2008 promotes ‘a minimum living wage to all employed’ (see under I.A.ii); nevertheless, the declaration is not a binding document. Furthermore, ILO Conventions No. 26, No. 99 and No. 131 concern minimum wage issues, the objective being the protection of workers from inappropriately low wages. Regarding Conventions No. 26 and No. 99, the convention uses the expression ‘minimum wages’; nevertheless, the necessity for living wages emerges as a result of the purpose of the standard (ILO, 2014: 3; Körner, 2011: 426–427; Zimmer, 2008: 54).⁴ Moreover, Convention No. 131 expressly defines the objective in both Article 3 and the introduction to the agreement. The needs of workers and their families, the cost of living and the general wage level, among other things, have to be taken into account when determining the minimum wage. But this needs to be weighed with other economic factors, such as the interest in having high employment levels or economic development. The Convention uses the term ‘minimum wage’ rather than ‘living wage’, but it clearly emphasises the concept of the minimum wage demanded under Convention No. 131 as necessary to ensure people’s livelihood security (Zimmer, 2008: 54). ILO Conventions are binding for individual countries if they have ratified the relevant agreement (Zimmer, 2013: 31).

Looking at the Council of Europe, both the European Social Charter (ESC) of 1961 and the revised European Social Charter of 1996, in Article 4(1), incorporate ‘the right of workers to a remuneration such as will give them and their families a decent standard of living’. Thus the Charter even codifies the right to a living wage. But it does not include an obligation to create a statutory minimum wage. On the contrary, it can be inferred from the first paragraph of Article 4 that standardising a remuneration floor is allowed through both a statutory minimum wage and collective bargaining (Adams and Deakin, 2017: 198; Lörcher, 2006: 225; Zimmer, 2018: 152). The European Committee of Social Rights of the Council of Europe (ECSR) interprets the Charter and reviews ESC compliance according to Article 21 and following through periodic reports but increasingly through decisions according to the Collective Complaints Protocol.⁵ Article 4(1) ESC (or rev. ESC) has been accepted by 19 out of 28 EU Member States (Table 1). The countries that have not ratified this provision are Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, Hungary, Latvia and Poland.

Table 1.

Ratification of international and European legal documents on the right to a living wage.

Countries	UN Social Covenant of 1966	ILO Convention No. 26	ILO Convention No. 99	ILO Convention No. 131	European Social Charter (ESC) of 1961Article 4(1)	Revised ESC of 1996Article 4(1)
Austria	X	X	X			X
Belgium	X	X	X			X
Bulgaria	X	X		X
Croatia	X
Cyprus	X
Czech Republic	X	X	X
Denmark	X				X
Estonia	X
Finland	X
France	X	X	X	X		X
Germany	X	X	X	X	X
Greece	X			X		X
Hungary	X	X	X	X
Ireland	X	X	X	X		X
Italy	X	X	X	X		X
Latvia	X
Lithuania	X					X
Luxembourg	X	X		X	X
Malta	X	X	X	X		X
Netherlands	X	X	X	X		X
Poland	X		X
Portugal	X	X		X		X
Romania	X			X		X
Slovak Republic	X	X	X	X		X
Slovenia	X			X		X
Spain	X	X	X		X
Sweden	X			X		X
United Kingdom	X			X	X

Source: Author’s compilation.

Right to a living wage in EU legislation

The Community Charter of Fundamental Social Rights of 1989,⁶ inspired by ILO Conventions and the ESC (see Recital 16) incorporates in Title 1 no. 5 an obligation to pay equitable remuneration for all employment. To achieve this, it suggests paying all workers a wage ‘which is sufficient to allow them a decent standard of living’. Although the Community Charter is not legally binding as such, it is referred to in particular in the definition of the EU`s social objectives in Art. 151 para. 1 TFEU. Thus it does formulate essential principles that serve as the basis for EU labour law and even provide the foundations for a European social model (Eurofound, 2018).

Furthermore, the recently proclaimed European Pillar of Social Rights (EPSR), in Chapter II on Fair working conditions under No. 6 (Wages), formulates that ‘workers have the right to fair wages that provide for a decent standard of living’ (European Parliament et al., 2017). However, the EPSR is also not a legally binding document.

Legally binding since the entering into force of the Lisbon Treaty in 2009 is the Charter of Fundamental Rights of the European Union (CFREU). It codifies in Article 31(1) workers’ rights to ‘working conditions which respect his or her…dignity’ and which, as the title indicates, are intended to be ‘fair and just’. The limitation of maximum hours of work, the right to daily and weekly rest periods, as well as an annual paid holiday are the only instances in which Article 31(2) CFREU offers precise guarantees. There are no references to remuneration, but this may well be covered in the general clause of paragraph 1 (see Box 1).

Box 1

Charter of Fundamental Rights of the EU (CFREU).

Article 31: Fair and just working conditions.

Every worker has the right to working conditions which respect his or her health, safety and dignity.

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.

Source: Charter of Fundamental Rights of the European Union (2000/C 364/01). Available at: http://www.europarl.europa.eu/charter/pdf/text_en.pdf (accessed 10 June 2019).

The right to a living wage in the constitutions of EU Member States

The right to a living wage is also enshrined in some of the constitutions of EU Member States, such as Article 36(2) of the Italian constitution, Article 59(1) of the Portuguese constitution and Article 107 of the Latvian constitution, as well as Article 28 of the document that formulates the basic rights and freedoms of the Czech Republic. Furthermore, Article 23 of the Belgian Constitution provides for ‘fair remuneration’, as do some of Germany’s state constitutions, for example, Article 24 of the constitution of North Rhine-Westphalia.

The right to a living wage as part of the EU Charter of Fundamental Rights (CFREU)?

Can employees’ remuneration be categorised as part of the working conditions referred to in Article 31(1) CFREU? One could argue that for employers, paying wages is the major obligation and as such differs from the conditions for carrying out one’s job. But this is clearly not a focus of EU law. Article 45(1) TFEU refers to ‘remuneration and other conditions of work’ and according to Article 3(1)(f)(ii) of the Temporary Agency Work Directive 2008/104/EC, remuneration is clearly part of working and employment conditions, and the same goes for the Posted Workers Directive 96/71/EC (Article 3(1)(c).

The protective scope of Article 31(1) CFREU

According to its title, Article 31 CFREU regulates the right to ‘fair and just working conditions’. However, there is some controversy concerning whether the right of workers to ‘dignified’ (decent) working conditions, as standardised in the Charter, includes remuneration. According to the Explanations to the CFREU, drawn up by the convention, the explanations should be taken into ‘due account’ and Article 31 should be interpreted in line with Article 156 TFEU (Charter explanations, 2007: C303/26). This leads partially to a restricted interpretation based upon the argument that working conditions are only one of seven alternatives mentioned in Article 156 TFEU and therefore cannot be interpreted extensively (Eichenhofer, 2012: paragraph 17; Jarass, 2016: paragraph 6).

This argument is put forward by those who do not classify remuneration as a working condition as specified under Article 31(1) CFREU (Ales et al., 2018: paragraph 1; Jarass, 2016: paragraph 6; Rebhahn, 2014: paragraph 79; Schubert, 2018: paragraph 10). There is also some reference made to the blocking effect of Article 153(5) TFEU, which excludes remuneration from the scope of EU competence (Ales et al., 2018: paragraph 1; Frenz, 2011: paragraph 3865; Rieble and Picker, 2013: 383 and following). But Article 156 TFEU refers to the Union’s legislative powers, so the standard is only interlinked with the area of application of Article 31 CFREU, while the material scope of the standard remains independent of it (Schubert, 2018: paragraph 11; Zimmer, 2018: 152). In the literature the material scope of Article 31 CFREU partly is seen as referring only to health, the general right to privacy and dignity at the workplace (Ales et al., 2018: paragraph 1; Jarass, 2016: paragraph 1; Schubert, 2018: paragraph 1, 3, 10). This interpretation is nevertheless too narrowly defined, as it fails to take sufficiently into account the interaction of paragraph 1 of Article 31 and the title of Article 31. Instead, the standard aims to standardise fundamental social principles in the workplace, focusing especially on guaranteeing healthy, safe and dignified working conditions.⁷

Researchers referring to the title, intent and purpose of the standard who argue that workers’ dignity also encompasses dignified remuneration (Blanke, 2006: 357–365; Bogg, 2014: paragraph 48; Giorgis, 2010: 194; Hanau, 2010: 1–2; Lang, 2016: paragraph 10; Nassibi, 2012: 252) therefore have good reason. As far as the content is concerned, the material scope of the norm is also characterised and fleshed out by existing secondary EU legislation (Folz, 2012: paragraph 4; Lang, 2016: paragraph 5). When the Directive on Temporary Agency Work 2008/104/EC was drawn up as secondary law, EU legislators considered remuneration to be part of working conditions. Accordingly, Article 3(1)(f)(ii) of the Directive specifically mentions pay as an essential part of the conditions governing work and employment, which also applies to Article 3(1)(c) of the Posted Workers Directive 96/71/EC. In addition, a Portuguese trade union contested Article 31(1) CFREU in a case brought against wage cuts imposed in the wake of new budget laws in Portugal.⁸

Historical interpretation shows that it was not the ILO Convention which was referenced when the CFREU was created, but European documents, such as the ESC, the revised ESC or the Community Charter of Fundamental Social Rights (Blanke, 2006: 360), all of which codify the right to a living wage. In addition, Article 52(4) CFREU stipulates that the fundamental rights of the Charter, contained in the constitutional traditions common to EU Member States, should be interpreted according to those traditions. The entitlement to fair and just remuneration is also enshrined in Article 36(2) of the Italian constitution, Article 59(1) of the Portuguese constitution, Article 23 of the Belgian Constitution, Article 28 of the fundamental rights and freedoms of the Czech Republic and – in diluted form – in the Latvian constitution (Lang, 2016: paragraph 4). Thus a guaranteed living wage is enshrined in the constitutions of only five of the 28 EU Member States. Although interpretations of simple statute law may close the gap in some countries, that still does not imply ‘common constitutional traditions’ containing the right to an appropriate living wage.

Opponents of this interpretation are right in saying that the Convention’s explanatory notes on the CFREU do not indicate that dignified working conditions include remuneration. On the other hand, CFREU interpretation safeguarding fundamental rights should not be static, so that its material scope can be extended over time (Folz, 2012: paragraph 4). Standards safeguarding fundamental rights are not static documents, as the European Court of Human Rights (ECtHR) put it so impressively in the case of Demit and Baykara.⁹

Interpretation of the material scope of Article 53 CFREU

Article 53 CFREU stipulates that no provision of the Charter can be interpreted as restricting or violating human rights as guaranteed under international law. Guarantees under international law are therefore needed to determine the level of protection provided by the fundamental rights in the CFREU. Therefore any interpretation should also take into account the guarantees provided by the UN Covenant on Social Rights, which has been ratified by all EU Member States and Article 4(1) of the (rev.) ESC, ratified by more than two-thirds of the EU Member States. Accordingly, interpretations of Article 31(1) CFREU cannot ignore the fact that Article 7 UN Covenant on Social Rights and Article 4(1) (rev.) ESC subsume a living wage under dignified working conditions, even if this was not originally intended when the Charter was created. The power imbalance of the parties concerned was recognised under Article 31(1) CFREU and instead of being simply programmatic in nature, it stipulates a subjective right.¹⁰ The third alternative of Article 31(1) CFREU, which refers to decent working conditions, thus constitutes a new social right and also relates to the wages payable (Blanke, 2006: 365). This signifies that Article 31(1) CFREU does also include the right to a living wage (Lörcher, 2019: 554–555, with further references).

Form and content of the right to a living wage

Both versions of the ESC codify, in Article 4(1), the right to appropriate remuneration. Nevertheless, the Charter does not confer an obligation to introduce a legal minimum wage but setting a standard wage floor by means of collective bargaining or a minimum statutory wage are considered permissible (Lörcher, 2006: 365). Just and fair remuneration may refer to various parameters, such as an equitable exchange ratio – in other words, performance and counter-performance (BAG [Fed. Labour Court] decision of 22.04.2009, 5 AZR 436/08, NZA, 2009: 837) – or to ensuring security of livelihood through a living wage. The Community Charter of Fundamental Social Rights (clause 5), the (revised) ESC (Article 4(1)) and the UN Covenant on Social Rights (Article 7) all focus on livelihood. So far, the European Court of Justice (CJEU) has not had to address the matter of interpretation. But the ECSR, tasked with overseeing ESC compliance (under Article 21 and following, ESC), has done so by means of country reports. Initial interpretations referred to satisfying purely physical needs, such as food and housing, but over time the Committee also considered the satisfaction of social and cultural requirements to be essential. As early as the 1970s the Committee presented an approach to assess the appropriate level of remuneration, based on a comprehensive study (Dalloz, 1977). Taking into account the standard of living in a given country, an appropriate wage was considered guaranteed if a worker earned a minimum of 68 per cent of gross average pay (Adams and Deakin, 2017: 198, 200; ESC Digest 2008: paragraph 112 and following; Samuel, 2002: 73). Some contracting states strongly criticised this model because it failed to take into consideration tax benefits and social security for low-paid employees (Adams and Deakin, 2017: 198, 200; Lörcher, 2006: 216, 222). Subsequently, the calculation base was changed. The current base is 60 per cent of the national net average wage, including bonuses and special payments. Social security benefits are taken into account if they are linked to the wage level. If remuneration is below the 60 per cent limit, but still exceeds 50 per cent of the national net average wage, this level of remuneration can still be seen as being in line with Article 4(1) ESC, if the Member State can prove that it is sufficient to provide a decent livelihood. In this case, the state has to provide a detailed breakdown of living costs (ESC Digest, 2018: 85; as well as Conclusions France 2003: 120). With these changes, the Committee significantly reduced the protective scope valid until then (Lörcher, 2006: 216, 223).

As long as the CJEU does not provide further clarification, the findings of the ECSR are the main factors in determining which wage levels constitute a decent living wage when interpreting Article 31(1) CFREU.

Applying the scope of the provision according to Article 51 CFREU

Article 31(1) CFREU will be applied only when the issue falls within the scope of EU law, in accordance with Article 51 CFREU.

Obligation of the European Union to comply with Article 31(1) CFREU

According to Article 51(1) CFREU, the Charter is legally binding for all organs, institutions and other bodies of the European Union. In consequence the EU would be obliged to comply with Article 31(1) CFREU regarding the remuneration paid to its employees. It would not be admissible to pay a level of remuneration to lower wage-earners below 60 per cent of the net average wage. In addition, the European Commission needs to comply with the Charter concerning all actions, including recommendations, resulting from its ‘coordinating’ role in the economic policies of Member States, according to Article 119(1) and Article 121 TFEU (Economic Governance), or in its recommendations (or requirements) to individual Member States regarding corrections of excessive public deficits (Article 126(7) TFEU).¹¹

The requirements of Article 31(1) CFREU should also be considered in interpreting EU laws, for example, when determining wage rates in accordance with Article 3(1)(c) Posted Workers Directive 96/71/EC.

Member States’ obligation to comply with Article 31(1) CFREU

It remains to analyse whether Article 31(1) CFREU provides an obligation for Member States to ensure that their minimum wage allows a decent livelihood. There is some controversy concerning Member States’ obligation to comply; according to Article 51 CFREU, they need only comply with the Charter when ‘implementing Union law’. EU law refers to primary, secondary and tertiary EU law (Hatje, 2012: paragraph 14). The provisions of the Charter are indisputably binding when Union laws are implemented, that is, when regulations and decisions by EU institutions are enforced or when directives are implemented.

No directives have been passed on minimum wages; on the contrary, concerning work-related pay, Article 153(5) TFEU explicitly stipulates a barrier to EU competence, thereby – obviously – leaving the determination of the minimum wage to the nation states. But the allocation of powers related to EU legislative acts has to be separated from the scope of EU law. The CFREU includes guarantees exceeding the allocation of powers in several areas; Article 28 CFREU, for example, guarantees the right to collective bargaining and the right to take industrial action, even though the ban of Article 153(5) TFEU is applicable to these areas. In addition, the Charter includes statements on EU values: Article 1 CFREU, for example, guarantees human rights and Article 2(2) stipulates the ban on the death penalty.

In addition, there are a variety of occasions on which EU laws refer to minimum pay, for example, in Article 3(1)(1)(c) Posted Workers Directive 96/71/EC, although these do not contain statements on the level of the minimum wage, as the Directive is not intended to harmonise national pay systems. Instead, national minimum wage levels are determined by national provisions because posting regulations are intended to counteract social dumping in the guest country through uniform minimum employment conditions (Brors, 2014: 938). The CJEU had to decide matters relating to the minimum wage under part of its rulings on the posting of workers, particularly regarding the extent to which certain elements of remuneration are to be considered subject to a minimum wage.¹²

It is worth asking whether Article 31(1) CFREU might become applicable law at national level, ‘through the back door’. The CFREU Explanations, which according to Article 52(7) are to be duly considered in any interpretation, state that the Charter is to be valid within the scope of Union law, not just in its implementation.¹³ The CJEU uses a wide scope of application.¹⁴

In Fransson the Court explains that the ‘scope of application of Union law’ and its ‘enforcement’ are to be seen as congruent.¹⁵ In the case of Kücükdeveci the CJEU deemed it sufficient for a national legal standard to cover an area regulated in the relevant directive.¹⁶ Meanwhile, the Court has been raising the substantiation requirements regarding the necessary link between secondary law and national legislation. The court postulates a ‘sufficient causal relationship of a certain level…which goes beyond the proximity of the areas in question or the direct impact they can have on each other’.¹⁷ As a result, obligations arising out of specific Union legislation are required for the relevant subject area.¹⁸

Therefore Article 31(1) CFREU would have to be taken into account when setting industry-wide minimum wages also binding for workers posted to Germany from other EU countries, as §§ 3 and 8 of the German Posted Workers Act are legal standards created as part of the implementation of the Posted Workers Directive 96/71/EC.¹⁹ But it is still disputed whether EU Member States’ commitment to fundamental rights applies only to the mandatory part of a directive, or whether it also covers those areas where national legislators have freedom of decision. In the literature, more restrictive views argue on the basis of the wording of the standard, and maintain that any implementation acts not required by the standard are not subject to CFREU criteria.²⁰ Rulings by the German (Federal) Constitutional Court support this view, expressly opposing the CJEU’s broad interpretation. Regarding fundamental rights standards that are necessary for constitutional national identity, the Constitutional Court rejects the view that ‘any functional reference of a regulation to the purely abstract scope or purely functional impact on Union law’ is sufficient to make EU fundamental rights legally binding for Member States.²¹ This interpretation also refers to Article 51(1) CFREU, which explains that the Charter (unlike the European Court of Human Rights, ECHR) did not establish consistent supranational protection of fundamental rights, instead relying on the shared model of protecting fundamental rights between the Union and Member States.²²

The still relatively broad scope of EU law in the case-law of the CJEU is not convincing, not even where the need for uniform applicability of EU law is concerned. If a Member State uses an exception clause, thereby exceeding the scope of what is required by the Directive, regulations cannot be other than inconsistent in structural terms. Accordingly, the matter only falls within the scope of EU law if national laws are strictly required by binding EU legislation.²³ Member States are therefore bound to the CFREU only when implementing provisions required by a directive (Kingreen, 2016: paragraph 14, 19 following).

However, this does apply to a sector-wide minimum wage, where §§ 3 and 8 of the Posting Act are applied to EU workers from other EU countries working in Germany. After all, the Posting Act is a legal standard created through the direct implementation of the Posted Workers Directive 96/72/EC (in its revised form²⁴). Consequently, the provisions of Article 31(1) CFREU need to be observed. As argued above, and drawing on Article 4(1) ESC, Article 31(1) CFREU should be interpreted as requiring that the sector-specific minimum wage must not fall below the level of 60 per cent of net average pay.

The CFREU does not apply in purely national situations, where recourse to the safeguards of Article 31(1) CFREU is not possible (Lenaerts, 2015: 353, 354 and following; Schubert, 2018: paragraph 14). The general minimum wage under the German National Minimum Wage (NMW) Act thus cannot be determined on the basis of Article 31(1) CFREU (Schubert and Düwell, 2015: paragraph 53), even if the subject is extremely closely interlinked with the Posted Workers Act.²⁵ Therefore, where the minimum wage is concerned, the German Constitution or its equivalent in other Member States is the standard to be applied (for further information, see especially Fischer-Lescano, 2014: 17, 20 and following).

Interpretation of national law in compliance with international law in relation to Germany

When interpreting German national law, however, German legislation and jurisprudence must conform to international law. The German Constitution’s commitment to international law is expressed in its preamble and in Articles 23 to 26, 59 and 100(2). This principle is the origin of the state’s obligation to observe international law with its institutions and offices (Rauschning, 2017: paragraph 110). The German Constitutional Court emphasises that ‘German government bodies are obliged to follow international standards, which are legally binding for the Federal Republic of Germany, and wherever possible to refrain from violating them’.²⁶

Accordingly, the German legislator can ignore international standards only in exceptional cases, where this is the only way of averting any infringement of overriding constitutional principles.²⁷

Article 59(2), phrase 1 of the Constitution obliges German courts to take international norms into account, as well as other legislation, within the framework of interpretation which is methodologically feasible (Zimmer, 2013: 40). This applies in particular when interpreting undefined legal expressions or making discretionary decisions. Where several interpretations are possible, the one most closely compliant with international law has to be chosen (Schweitzer, 2010: paragraph 440c) as when in doubt the legislator is assumed not to wish to infringe international obligations.²⁸

Consequently, the national minimum wage under the German NMW Act has to be assessed against the requirements of Article 7 of the UN Social Covenant and Article 4(1) of the ESC, both ratified by Germany. The criteria for the national minimum wage, consequently, are the same as for sector-specific minimum wages under the Posted Workers Act; these also apply to minimum wages determined in the procurement laws of individual federal states. As discussed above, international law specifies that minimum wages must at least reach the level of 60 per cent of the net average wage to be considered as providing a living wage. At its current level of €9.19 per hour the national minimum wage is unlikely to meet this requirement (for further details, see Herzog-Stein et al., 2018). This view is confirmed by the ECSR in its most recent Conclusions XXI-3 stating: ‘That [official data] puts the gross monthly minimum wage at 38.90% of the gross average monthly wage in industry and service sector. Therefore, the Committee concludes that the situation is not in conformity with Article 4§1 of the 1961 Charter’.²⁹

Summary

The dignified working conditions enshrined in Article 31(1) CFREU also incorporate the right to appropriate remuneration. Decent remuneration would provide a living wage, reaching a minimum of 60 per cent of the net average wage. The Charter is legally binding for agencies, institutions and other EU bodies, which therefore need to comply with the requirements laid down in Article 31 CFREU. These apply to Member States only to the extent that the scope of the EU laws has been opened such as with the Posted Workers Directive. In purely national matters, values under international law – according to the national constitutional requirements – have to be observed when interpreting national laws. Accordingly, and in particular on the basis of the ECSR’s case-law on Article 4(1) ESC, the level of 60 per cent of the net average wage is again to be taken as the basis for appropriate remuneration. This should be taken into account in debates on the level of minimum wages.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

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