Abstract
This article explores the role of collective interest representatives (CIR) in the enforcement of EU labour rights. To that end, the article starts with an analysis of the regulation of CIR in other fields of EU law, particularly consumer protection law and non-discrimination law. The analysis follows the approach of the Court of Justice of the European Union (CJEU) in cases on the legal standing of actors to enforce EU rights, namely, by defining first the protective scope as a matter of Union law itself based on a textual and teleological analysis and, second, the margin of discretion left to Member States to exercise their own procedural autonomy, including the possibility for Member States to determine locus standi according to their own legal systems. The article continues with drawing inspiration from forms of CIR in international and transnational law, particularly the collective complaints procedure of the European Social Charter (ESC), the representation procedure of the International Labour Organization, and the specific instances of the National Contact Points of the Organisation of Economic Cooperation and Development (NCP OECD). The article concludes with an assessment of the acceptance of CIR in the enforcement of (EU) labour rights from a substantive perspective and elaborates on the possible tasks, requirements, and powers of CIR in enforcing EU labour rights.
Keywords
Introduction
The main question addressed in this article concerns the role of collective interest representatives in the enforcement of EU labour rights. This question arises against the background of the fact that in civil law systems, the enforcement of individual rights is centred on a two-party relationship. 1 In the field of labour law, this is between the employee and the employer. As such, the enforcement of EU labour rights is mostly left up to employees individually. In the field of labour law, this can be considered problematic, since the employee is typically in a weaker position compared to the employer. This may lead to hesitation on the part of employees to assert their rights, especially when they are in a precarious employment situation, which is generally the case with non-standard forms of employment. 2 Besides these typical labour law issues, more general issues relating to access to justice, such as limited financial resources or the lack of knowledge, also hinder the enforcement of EU labour rights. 3
The role of collective interest representatives (CIR) may alter this situation as it has the potential to overcome such hinderances. CIR is one of two forms of collective redress as recognised in Commission Recommendation 2013/396/EU (Collective Redress Recommendation (CRR)).
4
Unlike the first form of collective redress, i.e., group actions brought jointly by natural and legal persons who claim to have suffered harm,
5
CIR actions are, by definition, brought on behalf of third parties. More specifically, in the CRR, CIR is defined as follows: ‘‘Representative action’ means an action which is brought by a representative entity […] on behalf and in the name of two or more natural or legal persons who claim to be exposed to the risk of suffering harm or to have been harmed in a mass harm situation whereas those persons are not parties in the proceedings.’
6
While there are recognised positive aspects of CIR in addition to individual or group actions to enforce EU labour rights, there are also concerns about the use of CIR. For example, when collective interest representatives act in their own right against an employer, it creates the risk that conflict is introduced into the ongoing employment relationship, against the will of the employee. Such conflict may have a serious impact on the continuation of the employment relationship. Furthermore, concerns have been raised that the enforcement of individual rights may not always be at the at the heart of action taken by representatives, who may instead pursue their own regulatory policy interests. 8 For example, many collective interest representatives, like employers’ organisations and trade unions, are also lobbyists to the regulator, and therefore there is a chance they may use the judicial system to push for a political interest that they cannot realise through the political arena or at the bargaining table in the case of a collective labour agreement.
Consequently, proposals, discussions and existing regulations on CIR aim to strike a balance between getting the benefits of CIR and controlling the risks of CIR in enforcing the rights of individuals. The aim of this article is to explore the potential role of CIR in the enforcement of EU labour rights and what requirements should be formulated. To this end, the article first examines the use of CIR in other fields of EU law, especially EU consumer protection law and anti-discrimination law. Secondly, it draws inspiration from forms of CIR in international and transnational labour law, in particular the collective complaints procedure of the European Social Charter (ESC), the representation procedure of the International Labour Organization, and the specific instances of the National Contact Points of the Organisation of Economic Cooperation and Development (NCP OECD). Thirdly, based on the forms of CIR described in sections 2 and 3, it considers, from a substantive approach, the reasons for using CIR in the enforcement of EU labour rights. Lastly, considering all the foregoing, the article explores the possible tasks, requirements, and powers of CIR in enforcing EU labour rights.
CIR and EU consumer protection law and anti-discrimination law
Before turning to the two specific fields of EU law in which collective redress is already recognised and regulated, there will be discussion on some general EU concepts and how those are approached by the CJEU. As analysed by Dougan, the CJEU approaches provisions on legal standing for actors to enforce EU rights, by first defining the ‘protective scope […] as a matter of Union law itself.’ 9 To that end, the CJEU ‘undertakes a textual and teleological analysis of the substantive and procedural provisions of relevant EU instruments, while also factoring in the policy and regulatory context.’ 10 Such interpretation requires a delicate ‘balance between: a) ensuring the uniformity and effectiveness of EU law, and b) not requiring the Member States to do so at the expense of their own legal traditions.’ 11 The latter would, for example, include the introduction of unusual ‘procedural creatures’ into the legal systems of Member States. Second, after establishing the protective scope, the CJEU considers the margin of discretion left to Member States to exercise their own procedural autonomy. 12 This includes the possibility for Member States to determine locus standi according to their own legal systems, while of course respecting the principles of equivalence and effectiveness, and the principle of effective judicial protection (Article 47 CFREU). 13
In short, the principles of equivalence and effectiveness, and the right of effective judicial protection, refer to the following: ‘The principle of equivalence requires that the rules governing the enforcement of EU law in Member States are not less favourable than those governing similar national actions, whereas the principle of effectiveness establishes that the enforcement of EU law must not be made virtually impossible or excessively difficult. The right to effective judicial protection, in turn, establishes a duty for Member States ‘to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law’.’ (emphasis in original)
14
CIR in consumer protection law
The field of consumer protection law is one of the areas in which collective redress mechanisms, including CIR, were first introduced. The reasons for extending the legal possibilities for addressing infringements of EU consumer rights clearly relate to the development of the EU's internal market. Due to the growth of the EU market and the Internet, which makes it easier to purchase goods from all over the EU, there is an increasing risk that larger numbers of consumers are being harmed by wrongdoing. 15 At the same time, it is widely recognised that consumers often face obstacles in enforcing their rights, including ‘costs of court cases, a lack of legal knowledge, and inefficient or lengthy procedures’, 16 particularly in low-value cases. 17 As such, collective redress procedures in consumer protection law are considered doubly effective: they provide an incentive for consumers to enforce their rights jointly; 18 and the threat of collective redress complaints can induce better compliance by companies. 19
Having ascertained that collective redress is a necessity in the protection of consumers rights, the discussion moves on to how to regulate it. The EU regulatory initiatives on collective redress mechanisms, in general, seem to be influenced by the following concerns: 1) how to prevent US-style 20 class actions; 2) how to balance EU regulation of CIR with the procedural autonomy of the Member States; and 3) while taking account of 1) and 2), how to ensure that the CIR regulation will be effective. 21 Furthermore, the regulation of CIR at EU level is a sensitive matter, because not all Member States have such systems, and the regulations of the Member States that have systems of CIR differ greatly. 22
All in all, the EU legal framework provides for various anti-abuse measures and requirements, combined with options for Member States. As such, the EU legal framework has been criticised for its weak harmonising effect. It goes beyond the scope of this article to address all details of this framework. Therefore, I will focus on a number of elements of the Collective Redress Directive (EU) 2020/1828. 23 These are, based on the definition of collective redress contained in the Directive, mainly the issues that address the concerns that are (also) expressed in the field of labour law, i.e., how to prevent abuse and how to ensure that collective entities keep the enforcement of individual rights at the core of their actions, instead of pursuing their own policy interests.
The definition of representative action in Directive (EU) 2020/1828 is comparable to that in the CRR cited above. The main difference is the specification that the action is brought by a qualified entity, which means ’ (Article 3(4)). What ‘qualified’ means exactly is further defined in Article 4(3) of the Directive. These criteria are:
the entity is a legal person that is constituted in accordance with the national law of the Member State of its designation and can demonstrate 12 months of actual public activity in the protection of consumer interests prior to its request for designation; the entity's statutory purpose demonstrates that it has a legitimate interest in protecting consumer interests as provided for in the provisions of Union law referred to in Annex I; the entity has a non-profit-making character; the entity is not the subject of insolvency proceedings and is not declared insolvent; the entity is independent and not influenced by persons other than consumers, in particular by traders, who have an economic interest in the bringing of any representative action, including in the event of funding by third parties, and, to that end, has established procedures to prevent such influence as well as to prevent conflicts of interest between itself, its funding providers and the interests of consumers; the entity makes publicly available in plain and intelligible language by any appropriate means, in particular on its website, information that demonstrates that the entity complies with the criteria listed in points (a) to (e) and information about the sources of its funding in general, its organisational, management and membership structure, its statutory purpose and its activities.
These criteria are formulated in the context of cross-border representative actions, for the purposes of which qualified entities ‘should be subject to the same criteria.’ This means that strictly speaking, these criteria do not apply to qualified entities involved in purely domestic claims, as expressed in Article 4(5): ‘Member States may decide that the criteria listed in paragraph 3 also apply to the designation of qualified entities for the purpose of bringing domestic representative actions.’ Member States can also designate an entity on ‘an ad hoc basis for the purpose of bringing a particular domestic representative action’, at the request of that entity and if it complies with the criteria (Article 4(6)). Besides legal entities, Member States can also designate public bodies as qualified entities or decide that they are to remain as such (Article 4(7)).
Like the CRR, Directive (EU) 2020/1828 distinguishes between two specific forms of representative action: injunctive measures and compensatory redress (Article 7(4)). What is interesting about the injunctive action is that the qualified entity does not need the consent of the persons whose interests they are protecting, nor does it have to prove that they have suffered loss or damage, or that there was intent or negligence on the part of the organisation causing the infringement (Article 8(3)). The aim of such an action is clearly to stop the wrongdoing and prevent it from happening again in the future.
The action for compensatory redress aims at stopping the wrongdoing, but also intends to provide remedies to those who have suffered loss or damage (Article 9). That makes it important to ensure that the qualified entity will not act to lobby for its own (political) interests or settle for insufficient compensation; or, to put it more positively as is done in the Directive, to ensure that the persons who have been wronged benefit from the collective redress action (Article 9(6)). 24 Article 9(2) requires therefore that ‘the individual consumers concerned by that representative action explicitly or tacitly express their wish […] to be represented or not by the qualified entity.’ It is not clear what ‘tacitly’ means, 25 but the explicitly expressed wish to be represented refers to either an opt-in or an opt-out system. 26 The CRR promotes only the opt-in system, which means that the qualified entity needs the express consent of the natural or legal persons that have been wronged by the infringement. 27 The opt-out system requires the natural or legal persons that have been wronged to ‘explicitly express their wish not to be represented by the qualified entity in the representative action for redress measures.’ 28 The Directive offers Member States a choice between the opt-in or opt-out system, or a combination of both. Both systems have their positives and negatives. The opt-in system has been criticised for being ineffective in low damage claims, in respect of which consumers are generally reluctant to file a case to begin with. 29 To overcome this problem, countries like Denmark have introduced complementary opt-out procedures. 30 The opt-out system is considered to be more effective, but there may be issues in generating enough general publicity so that people know an action is being taken and they can opt out if they wish. 31 This is the case, even though the Directive prescribes the minimum level of information required for consumers to make an informed decision (Article 13). 32
A last measure to prevent abuse introduces requirements on funding for collective redress. Although it is speculated that it is not likely that most qualified entities will seek external funding given their non-for-profit nature, 33 the Directive provides for some rules in Article 10. These aim to limit the influence of the funding-providing third parties on the outcome of the action to the detriment of the consumers (Article 13(2)(a)) or the defendant (Article 13(2)(b)).
CIR in anti-discrimination law
Provisions enabling a form of collective redress and actio popularis are found in all the ‘new generation’ equal treatment Directives.
34
For example, under Article 9 of the Equality Framework Directive 2000/78 (EFD),
35
the provisions read as follows:
Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to Member States shall ensure that
In view of the paragraphs highlighted in this provision, it would seem that the Equality Directives enable CIR actions. However, the practice is rather complicated. In her comprehensive analysis of the protective scope, i.e., the substance of EU anti-discrimination law, Benedi Lahuerta found that the broad definition of equality in EU primary law potentially entails granting ‘standing to: a) individual complainants, b) defined groups of complainants (acting in their own names or represented by a third party), and c) legal persons who start proceedings in the public interest when discrimination targets a specific group without any identifiable victim.’
36
Regarding secondary EU law, i.e., the Equality Directives, it seems a bit more complicated to actually grant standing to collective interest representatives. For example, from a substantive perspective, discrimination in the Directives seems to be framed in individual terms, however, based on a teleological interpretation, the CJEU has also given it a collective dimension. In the Feryn case, a Belgian organisation for equal opportunities and combatting racism filed a case before the Belgian labour court claiming that the recruitment policy of the Feryn company was discriminatory. The claim was based on public statements of the Director of Feryn to the effect that the company ‘was looking to recruit fitters, but that it could not employ “immigrants” because its customers were reluctant to give them access to their private residences for the period of the works.’
37
The Court found that ‘direct discrimination is not dependant on the identification of a complainant who claims to have been the victim,’
38
ergo, discriminatory conduct targeting or affecting a defined group can be covered by the Equality Directives.
39
Concerning the procedural autonomy of the Member States, based on the provisions in the Equality Directives, Benedi Lahuerta notes that given the Commission's reluctance towards US-style class actions (which are considered too aggressive as they tend to suppress the interests of individuals and push defendants to settle involuntarily for financial litigation benefits rather than serving the goal of fair competition), 40 and strong opposition during the preparatory work phase of the Race Directive 41 by several Member States against class action because ‘they were not foreseen in their own judicial systems’, 42 it is likely that the CJEU will take a cautious approach interpreting the provisions, such as Article 9(1) EFD, in respect of requiring class actions. 43 More specifically, she notes that a closer reading of Article 9(2) EFD reveals that it contains three elements that restrict CIR: 1) the criteria for determining which organisations have a legitimate interest are defined by national law; 2) legal entities may only engage in legal proceedings with the consent of the complainant (strict opt-in system); and 3) collective interest representatives can act on behalf or in support of the claimants, which means that the Member States have a choice and do not have to grant legal entities standing ‘on behalf of’ claimants. 44 These CIR-restricting elements indicate that the Member States have a wide discretion in exercising their procedural autonomy. 45
The question of how wide this discretion is, is to be further determined by the principles of equivalence and effectiveness and the right to effective judicial protection (see above). As for the effectiveness-equivalence principles, Benedi Lahuerta is not very positive. Although in legal doctrine a ‘positive duty’ ‘requiring Member States to provide “adequate” judicial protection’ is advocated (emphasis added), 46 the CJEU tends to require a minimum level of judicial protection. 47 The latter means that it is not likely that based on these principles the Member States would be required to enable CIR. 48 The three CIR-restricting elements in Article 9(2) EFD create a narrow procedural provision, which does not allow for an extensive interpretation based on Article 47 CFREU, which could in turn require the development of national CIR mechanisms. 49 In this context, it is interesting to refer to the NH case. 50 In this case, the Court was asked whether Article 9 EFD should be interpreted as giving standing to an association of lawyers whose principal objective is to provide legal assistance to LGBTI persons. 51 The Court ruled in the negative on this question, 52 but noted that ‘Article 8(1) of Directive 2000/78, read in the light of recital 28 thereof, provides that Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in that Directive.’ 53 Therefore, ‘Article 9(2) of Directive 2000/78 in no way precludes a Member State from laying down, in its national law, the right of associations with a legitimate interest in ensuring compliance with that directive.’ 54 The Court ruled in similar ways in the ACCEPT (also on Article 9 EFD) 55 and Feryn (on Article 7 of the Race Directive) cases. 56
The rulings in these cases make clear that the Court respects the procedural autonomy of Member States. From a substantive perspective this has been unsatisfactory, given the strong conviction, especially in academic writing on the enforcement of equal treatment rights, 57 that CIR can provide an effective form of enforcement in situations of ‘systematic discrimination rooted in group prejudices.’ 58 Examples of such forms of discrimination that would benefit from CIR are the situation of the Roma, and systemic gender (pay) inequalities. 59 Another example where CIR may provide an effective approach to enforcement can be found in the activities of the European Commission against Racism and Intolerance, which includes a recommendation on the fight against hate speech to provide locus standi not only ‘for those directly targeted by hate speech, but also for “equality bodies, national human rights institutions and interested non-governmental organizations.”’ 60
CIR in international and transnational labour law
Forms of CIR can also be found in international labour law. When considering its relevance to the enforcement of EU labour rights, it is therefore interesting to describe how those forms of CIR are regulated. More particularly, this concerns the collective complaints procedure of the European Social Charter (ESC); the ILO's Representation procedure; and the specific instances of the National Contact Points of the OECD. All three are non-judicial procedures, however, they incorporate several features of a judicial process, such as considering the arguments of both parties, applying norms to the facts of the case, providing further interpretation of the applicable norms, and delivering motivated decisions, albeit in the form of a report or recommendations. Furthermore, many (ESC collective complaints procedure and specific instances of the OECD NCPs) 61 or all (ILO representation procedure) Member States are familiar with these procedures. This indicates that these procedures may include features of CIR that are acceptable from the perspective of the Member States’ procedural autonomy.
Since these forms of CIR have been set up in the context of social rights, hence confirming the benefits of CIR from a substantive perspective, the description of these forms is limited to the procedural aspects. In particular, the focus will be on the qualification of the representing entity, anti-abuse measures, and respect for the procedural autonomy of the Member States. Lastly, some issues will be highlighted that might be interesting to consider for the regulation of CIR in the enforcement of EU labour rights.
Collective complaints procedure ESC
The collective complaints procedure of the European Social Charter is dealt with by the European Committee of Social Rights (ECSR). Complaints must relate to a provision of the Charter that is accepted by the Contracting Party to the 1995 Protocol to the ESC, providing for a system of collective complaints (Protocol). The procedure can be summarised as follows: ‘[t]he Collective Complaint Procedure engages with issues in the social arena that have implications beyond individual situations to problems of specific groups, or systematic failures of national legal systems. The procedure is of critical importance to the implementation of the Charter, as it gives the ECSR the possibility to assess a specific legal and/or factual situation in more depth and length than it could do in its yearly country-by-country evaluation of state reports.’
62
Article 1 of the Protocol indicates which organisations can submit a complaint ‘alleging unsatisfactory application of the Charter’. These are:
international organisations of employers and trade unions referred to in paragraph 2 of Article 27 of the Charter; other international non-governmental organisations which have consultative status with the Council of Europe and have been put on a list established for this purpose by the Governmental Committee; representative national organisations of employers and trade unions within the jurisdiction of the Contracting Party against which they have lodged a complaint.
67
National non-governmental organisations (NGOs) may also have the right to submit a complaint if the State explicitly agrees to it (Article 2 Protocol). National and international NGOs can only submit complaints on ‘matters regarding which they have been recognised as having particular competence’ (Article 3 Protocol).
Specific to this procedure is that the ESCR can invite third parties to make observations. These are parties that either have an interest in the interpretation of the provisions of the ESC, such as the States that have ratified the ESC, and the international organisations of employers and trade unions referred to in Article 27(2) ECS. 68 The ECSR can also invite ‘any organisation, institution, or person to submit observations.’ 69 The goal of the latter type of observations, also referred to as amicus curiae observations, is for the ECSR to take a decision ‘in full knowledge of the facts’. 70
Since 1998, when the first complaint was submitted, the ECSR has received 240 complaints against the 16 States that are party to the 1995 Protocol. 71 There has been a noticeable increase in the use of the complaints procedure since 2011. Overall, there seems to be a rather modest number of complaints, indicating that, at least from a quantitative point of view, actors eligible to make a complaint are not making abuse of this enforcement mechanism. Another reason for the modest number of complaints could also be that the process can take up to three to four years. 72
ILO representation procedure
The representation procedure of the ILO is governed by Articles 24 and 25 of the ILO Constitution. In short, it can be described as a procedure: ‘under which an industrial association of employers or of workers has the right to present to the ILO Governing Body a representation against any Member State which, in its view, ‘has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party’.’
73
The receivability of a representation is subject to the following conditions:
it must be submitted in writing; it must emanate from an industrial association of employers or workers; it must make specific reference to article 24 of the ILO Constitution; it must concern a member of the ILO; it must refer to a Convention to which the member in question is a party; and it must indicate in what respect it is alleged that that Member has failed to secure the effective observance within its jurisdiction of that Convention.
74
‒ that the representation may be made by any industrial association no matter its size (i.e., number of members), whatever country it is established, or at what level it is organized (local, national or international); ‒ that the representation shall not be regarded irreceivable, because the Government has dissolved or proposed to dissolve the industrial association on behalf of which the representation is made; ‒ that the industrial association (especially the trade union) has not complied with rules of previous authorization, in particular something like the deposition of by-laws, since workers should be able to establish organizations of their own choosing; ‒ that the Governing Body has a duty to examine the de facto existence of an industrial association, ‘independently of the terminology employed and of the name that may have been imposed upon the association by circumstances or selected by it’, or when it is not officially recognised.
76
The procedure is exclusively available to social partners and cannot be used by individual workers or employers. However, individuals can pass on relevant information to their representatives.
75
To decide whether a representative qualifies as an ‘industrial association’, the Governing Body is guided by a set of principles. These principles lead to an ILO autonomous interpretation of ‘industrial association’, and include issues such as:
Furthermore, it is considered that an industrial association has an interest in the representation when the representation emanates from: 1) a national association directly interested in matter; 2) international workers’ or employers’ associations having consultative status with the ILO; or 3) other international workers’ or employers’ associations when the representation concerns matters directly affecting their affiliated organisations.
77
Until the mid-1990s, not much use was made of the representation procedure. In the period from the mid-1950s to 1979, only 13 representations were made; from 1985 to 1987, there were 15 representations; 78 and since the mid-1990s, the number of representations has totalled over 200 against around 80 States. 79 Given how easy the ILO has made it to start a representation procedure with its electronic form, 80 the total number of over 200 representations against around 80 countries over a period of almost 30 years could be considered rather modest. From a quantitative point of view, these numbers could be interpreted as social partners not abusing this procedure. Hartlapp presents a qualitative explanation for the modest number of representations. According to Hartlapp, the support for receiving a representation procedure depends on the support the case gets from all three groups (Government, employers and workers) in the governing body. Although there is no official voting, each of the groups can exercise a veto power at various stages of the procedure. This means that effectively only consensual cases make it through the whole procedure. 81 It is this that Hartlapp refers to as ‘institutional constraint’ that leads to a scares use of the representation procedure. 82
Specific cases of the OECD NCPs
The National Contact Points for responsible business conduct (NCPs) are agencies established by governments that adhere to the Guidelines for Multinational Enterprises from the Organisation for Economic Cooperation and Development (OECD). 83 The NCPs have two responsibilities: to promote awareness about the Guidelines and to contribute to the resolution of issues that arise in relation to the implementation of the Guidelines in specific instances. 84 When dealing with specific instances, the NCPs operate as a non-judicial grievance mechanism. 85 To deal with the specific instances, the NCPs can offer an array of assisting activities, including mediation and conciliation and follow-up monitoring activities. 86 The aim of the assistance includes ‘furthering the implementation of the Guidelines in the future and/or addressing adverse impacts in a way consistent with the Guidelines.’ 87 Addressing adverse impacts may include compensation for damages. 88 As such, the specific instances can be qualified as a procedure for injunctive measures as well as collective redress.
On the OECD webpage on specific instances, it is indicated that ‘[a]ny individual or organisation with a legitimate interest in the matter can submit a case to an NCP regarding a company, operating in or from the country of the NCP, which has not observed the Guidelines.’ 89 Politically-motivated submissions are considered by some NCPs as not contributing to the effectiveness of the Guidelines and therefore inadmissible. 90 Easy access to the NCPs is one of the seven core effectiveness criteria for the functioning of the NCP. This includes ‘facilitating access by business, labour, NGOs, and other members of the public.’ 91 No legal representation is needed when filing a case with the NCP, however, it is permitted, as is assistance or representation by another organisation such as an NGO or trade union. 92 If the person filing a case fears retaliation, the NCPs can take measures to protect their identity in the process. 93
The year 2020 marked the 20th anniversary for the mandate of NCPs. In that period, 49 NCPs dealt with more than 500 cases. 94 About 200 of those cases dealt with labour rights, 95 which seems a rather modest number. There may be several explanations for this, among others, the fact that the NCPs were relatively unknown (at least until 2011), the voluntary nature of the specific instances, 96 and the average period of two years taken to resolve a specific instance. 97
Involving CIR in the enforcement of EU labour rights from a substantive perspective (pros and cons)
The fact that CIR procedures are part of ensuring compliance with the provisions of the European Social Charter, the Conventions of the International Labour Organization and the OECD MNE Guidelines makes a strong case for the added value of CIR in enforcing labour rights. Except for procedural concerns, which will be addressed in the next section, no concerns seem to have been expressed from a substantive perspective. Especially, since out of the 46 Member States of the Council of Europe, the 16 countries party to the Protocol are all EU Member States 98 and 25 out of the 27 EU Member States adhere to the OECD MNE Guidelines and have established a NCP. 99
Like in anti-discrimination law, provisions can be found in EU labour law that seem to allow CIR in the enforcement of labour rights. Several EU labour law provisions enable ‘legal entities’, including social partners, to engage in proceedings, either on behalf of or in support of an alleged victim. 100 Provisions for CIR by social partners can also be found in some Directives with a collective dimension. 101 Provisions for CIR are also found in the more recent Directives, such as in the Work-Life Balance Directive (2019/1158/EU) and the Directive on Transparent and Predictable Working Conditions (2019/1152/EU), albeit rather indirectly in Article 15 102 and Article 17, 103 respectively. The most interesting provision, though, is Article 14 of the Commission's proposal for a Directive on Improving Working Conditions in Platform Work. 104 First, it is called ‘Procedures on behalf or in support of persons performing platform work’ and it exists in addition to Article 13, which obliges Member States to ensure the right to redress for platform workers. Second, Article 14 is formulated in a similar manner to the provisions in the new generation Equal Treatment Directives, which are described above (section 2.2).
Besides the fact that CIR is already recognised in several Directives on labour rights, other substantive reasons for introducing CIR in the enforcement of EU labour rights can be found in the broad context of access to justice. In a combination of studies, the following four general substantive reasons can be identified. 105 The first relates to the so-called ‘access to justice gap’, for example because the employee does not know what his/her rights are, or how to use the system to claim redress for an infringement of his/her rights. With a broader understanding of access to justice, which also includes legal aid, the right to be advised, defended and represented, and the right to an effective remedy, 106 in particular, CIR could play an important role in closing this gap. Second, CIR can have an added value in seeking redress for workers engaged in an employment relationship that makes them particularly vulnerable to retaliation by the employer (for example, workers in fixed-term contracts or migrant workers). Third, similar to the situation of consumers, workers may not seek redress for the infringement of a right, because the claim for damages might be too small compared to the (risk of the) costs of seeking the redress. CIR could overcome this risk, especially when the infringement affects many workers. Fourth, legal pluralism can make it difficult to find the right channels through which to seek redress for infringements. In such situations, collective interest representatives, e.g., trade unions or equality organisations, may hold the necessary specialist knowledge of the field of law or specific redress channels.
CIR, as a means of enforcing compliance with EU labour rights, is also recognised in a proposal drafted by a group of academics for a horizontal Directive on effective enforcement of EU labour rights. 107 The proposal contains several provisions on CIR, including its Article 5 on collective redress, which is inspired by the Representative Action Directive discussed in section 2.1 of this article. 108
Involving collective interest representatives in the enforcement of EU labour rights from a procedural perspective (possible tasks and requirements of representatives)
Following the broader interpretation of access to justice and the forms of CIR described in the sections 2 and 3, the following tasks could be identified for representatives:
sharing knowledge on rights; providing advice on channels through which to access justice; providing resource support, especially financial, but also e.g. language support; offering support services to access justice; offering opinions in cases to strengthen the position of both sides of industry; joining groups of workers in their cases; taking over cases from groups of workers; and taking cases on their own initiative.
Each of these tasks could be related either to an action for an injunction or to redress. The first three tasks may be essential for getting access to justice, but do not raise issues about access to (quasi-)judicial procedures of CIR and will therefore not further be addressed.
The three forms of CIR procedures described in section 3 have in common that they aim to make it easy to submit a complaint, representation or case. To take such a procedure, the representative entity should have a legitimate interest in the representation. What ‘legitimate interest’ means is not further defined in any of those three procedures, but it seems that there is legitimate interest when the representative entity has the protection of the rights covered by the legal instrument as its goal. Representatives that seem to be recognised as pursuing such goals are social partners (ECSR, ILO and OECD NCPs) and NGOs (ECSR and OECD NCPs). These procedures contain two more requirements that may be of interest to representatives in the enforcement of EU labour rights. First, following the (soft law) jurisprudence of some of the OECD NCPs, claims that pursue a political interest of the representative will be declared inadmissible, because those actions do not further the effective compliance with labour rights as such. Second, the ECSR takes an approach to defining which entities qualify as collective representatives that may also fit the EU. These entities include social partners recognised at EU level, especially the European Trade Union Confederation (ETUC), Business Europe and the International Organization of Employers (IOE). The ECSR also recognises representatives of trade unions and employers’ organisations in the country involved in the complaint. 109 Both approaches seem to fit well with the EU, since the EU recognises certain social partners at EU level as part of the European (Sectoral) Social Dialogue 110 and the recognition of at national level recognised representative organisations of social partners respects the diversity and specificities of the industrial relations systems of the Member States. 111
With respect to NGOs as legitimate representatives in enforcing EU labour rights, a mix of approaches could be followed. Like the ECSR, a list could be drawn up containing international and European NGOs that have the status of recognised representative. 112 Also like the ECSR, Member States could draw up a list of national NGOs that have been recognised. 113 However, to ensure some level of harmonisation, the recognition should be based on a set of requirements determined at EU level, like those provided for in Article 4(3) of the Collective Redress Directive. 114
Furthermore, a legitimate interest can also be interpretated as a claim that relates to a right that is protected by the legal instrument with the aim of contributing to a more effective implementation of, or better compliance with, those (labour) rights. In the context of the collective complaint procedure with the ECSR and the representation procedure with the ILO, in particular, the aim of the CIR action is not only to stop the infringement, but also to prevent it from happening in the future and to address systematic infringements. As argued for anti-discrimination law, CIR in such (injunctive) actions can also be used when there is no actual victim of the alleged infringement.
Although not a CIR in stricto sensu, the possibility offered to representatives in the collective complaint procedure for the ECSR to submit an opinion or observation, could represent an interesting additional opportunity for CIR to contribute to a better enforcement of compliance with EU labour rights. This would be particularly interesting in cases dealing with agreements of social partners, like the EU framework agreement. Something like this is included in Clause 8(6) of Directive 2010/18/EU on Parental Leave, 115 which states that ‘any matter relating to the interpretation of this agreement at European level should, in the first instance, be referred by the Commission to the signatory parties who will give an opinion’. A similar provision is included in the last paragraph of the preamble of the framework agreements on part-time work and on fixed-term work, yet in a more voluntary nature, since it states that ‘the parties to this agreement request that any matter relating to the interpretation of this agreement at European level should in the first instance be referred by the Commission to them for an opinion.’ 116 The Commission could consider formalising this and applying it to all conflicts concerning the interpretation of provisions of framework agreements implemented via Directives. Furthermore, like the procedure with the ECSR, such consultation would provide the ruling court with additional information on how to interpret the provisions of the relevant framework agreement, especially when the representatives act in the role of amicus curiae.
There seems to be a remarkable difference between the EU approach to CIR and the approach to CIR taken by the ECSR, ILO and OECD NCPs when it comes to the relationship between the representing entity and the individual workers. Whereas the EU aims to protect the interests of the individuals, the other three organisations seem to ignore this. With the specific instance procedure with the OECD NCPs, at best, an indirect protection of the interests of the individuals can be found, namely, that submissions that pursue a political interest of the representative will be declared inadmissible. 117 The risk of an inadmissibility declaration will discourage and thereby prevent CIR actions that do not genuinely represent the interests of the individuals.
An explanation as to why the ECSR and ILO are not concerned with this issue at all might be found in the fact that the representatives of workers and employers depend, for their existence, on those workers and employers. After all, they are organisations based on membership. The pursuit of anything other than the interests of their members may result in the termination of memberships and the risking of their status as representative organisations. At the same time, there may be situations in which workers want to have the possibility to opt out from a CIR, similar to being able to opt out from a collective action (strike).
Conclusions
The main question addressed in this article concerns the role of CIR in the enforcement of EU labour rights. To that end, it has explored the use of CIR in other fields of EU law, especially EU consumer protection law and anti-discrimination law and in international and transnational forms of CIR, namely, the collective complaints procedure of the ESC, the representation procedure of the ILO, and the specific instances of the OECD NCPs. The use of CIR in all these instruments is reflectively assessed through a textual and teleological analysis of the substantive and procedural provisions on these forms of CIR. This assessment reveiled that in its regulation the EU is bound by a sensitive balance between ensuring uniformity and effectiveness of CIR on the one hand and the procedural autonomy of the Member States on the other hand. The latter particularly, since not all EU Member States provide for systems of CIR and the CIR regulations of the Member States that provide for such systems differ greatly.
The assessment of the EU forms of CIR have revealed a disparity between the possibilities for CIR in consumer protection (extensively regulated) and anti-discrimination (hardly regulated). Moreover, it has revealed that within the context of the EU, the approach taken to CIR seems to be to prevent abuse of the use of CIR at the cost of the interests of the individual victims of the alleged infringements. In the Collective Redress Directive (applicable in consumer protection law), this is visible in the extensive list of criteria used to identify which entity qualifies as a representative entity and the requirement for a system of opt-in (i.e., the qualified entity needs the express consent of the natural or legal persons that have been wronged by the infringement) or opt-out (i.e., the natural or legal persons that have been wronged explicitly express their wish not to be represented by the qualified entity). The provisions enabling CIR in the new generation Equal Treatment Directives (e.g., Article 9 of the EFD) include limiting requirements (especially legitimate interest; recognising requirements in national law; and approval of the complainant), which, combined with taking account of the procedural autonomy of Member States, seems to have resulted in a cautious approach being taken by the CJEU in interpreting those provisions as requiring the Member States to enable CIR.
The assessment of the forms of CIR with the ECSR, ILO and OECD NCPs has revealed that the use of CIR as an enforcement mechanism in the field of labour law seems to be accepted. Furthermore, it has revealed that the aim of these procedures is to make it as easy as possible for CIR to submit a claim alleging the infringement of the rights covered by their legal instruments. If there are any limitations, these are to be found in the requirement that the collective interest representative needs to represent a legitimate goal, the submission needs to emanate from an industrial association of workers or employers, and that submissions that pursue a political interest of the collective interest representative can be declared inadmissible. Furthermore, one significant difference between the fields of consumer protection law and anti-discrimination law with the field of labour law is that the latter is characterised by a tradition of representation by associations based on membership. Consequently, the representatives and the representees are in a long-term relationship with each other, which has the potential to self-regulate the collective interest representative in prioritising the interests of its members over its own political interests.
The conclusion of this article is therefore that from a substantive perspective, the use of CIR in the enforcement of labour rights is widely accepted, even in several provisions of EU labour law. EU Member States have endorsed this to a certain extent, with the CIR forms of the ECSR, ILO and OECD NCPs. Even a system of opt-out from the CIR action could fit well in the field of labour law, since such systems are already used in respect other forms of collective action, particularly strike action. Most of the forms of CIR action in the field of labour law seem to be injunctive actions, however, the cases with the OECD NCPs illustrate that CIR claiming redress for damages suffered due to labour right infringements can also be part of the role of CIR in enforcing EU labour rights.
Footnotes
Acknowledgements
This publication has received financial support from the European Union Programme for Employment and Social Innovation ‘EaSI’ (2014–2020). For further information please consult: 
.
The contents of this publication do not necessarily reflect the position or opinion of the European Commission. Neither the European Commission nor any person/organisation acting on behalf of the Commission is responsible for the use that might be made of any information contained in this publication.
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 Directorate-General for Employment, Social Affairs and Inclusion, (grant number European Union Programme for Employment and Social).