European Employment Laws: a comparative guide (ISBN 978 1904905 19 6)

Foreword

By Eleanor Sharpston QC, Advocate General, ECJ

When Stephen Hardy first told me of this project, I was – I admit – sceptical.  There was, I felt, probably a very good reason why no one had managed to put together a single volume, readable account of the employment laws of the EU.  What would have been a daunting enough task when the European Community had a mere ten (or twelve … or fifteen …) members looked like a virtual impossibility as Union membership increased at a leap to 25, and then to 27. The mundane difficulties of getting access to enough material in languages one could hope to read (therefore, often, in translation from, say, the original Lithuanian or Hungarian) combined with the intellectual difficulties of understanding how each legal system actually works ‘on the ground’ make for what is euphemistically described as a ‘challenging’ venture.  I remember wishing him well and hoping that he would end up with something that he could use in some way.

I am delighted for him, and for his co-author Mark Butler, that my scepticism proved unfounded.

The authors say plainly that this book is intended as ‘a quick reference guide to general principles’ and that ‘… we have not produced … a definitive guide’.  With due appreciation for their modesty, it seems to me that they have exceeded their target by a significant margin. Rather than dragging the reader through a text so heavily footnoted that any sense of direction is lost, they have opted to provide a clear, readable narrative. The result is that one really can read a series of sections at a time without losing sight of the wood for the trees.

The book opens with a condensed but informative analysis of the development of ‘social Europe’, in particular the European Employment Strategy, reminding the reader that there are (at least) four different social policy models on which the EU27 base their employment regulation (traditional-rudimentary, liberal-individualist (or Anglo-Irish), civilian (or Romano-Germanic) and social democratic) and three major underlying, and competing, theories of institutional choice (efficiency theory, political power theory and legal theory).  The theoretical elements are, thankfully, presented with exemplary clarity, as are the succinct descriptions of specific aspects of EU law - for example, in a directive, the difference between an exception and a mere derogation.

The authors then settle down to describe what is actually happening, Member State by Member State. The individual sections are refreshingly sensible, straightforward and down to earth.  In ordinary, intelligible prose, the authors look at salient elements of substantive law, concluding with a quick overview of relevant court structures. As a result, a clear picture emerges of how each Member State strikes its own preferred balance (within the overarching framework of EU law) between employees’ and employers’ rights and responsibilities. The reader is left in little doubt as to how developed (or otherwise) employment laws are across the Union; and as one delves deeper into the book, one begins to understand rather better the arguments at EU level as to what should be regulated and why; and (if so), how, to what extent and at what level.  Inevitably the coverage is not wholly even – some Member States have legislated more than others and there are limitations imposed by the availability of material. Of two of the ‘candidate countries’ for further enlargement, the authors tersely observe, ‘Unfortunately at present the labour laws of ________ are currently under review with a view to joining the European Union.  At present these laws are yet to be published in definitive form.’  I hope that the authors, and their publisher, have already worked out an appropriate timeframe for the second edition.

This book does not pretend to offer the worried manager or employment law generalist with a very specific problem on his hands a viable alternative to getting the necessary, detailed professional advice to sort it out. What it does do, extremely well, is to cater for at least three distinct groups of readers.

First, perhaps, are those with a particular interest in a specific topic – say, minimum wage legislation, the role of works councils, or the sensitive issue of positive discrimination. They will find that they can track it across the Union, seeing the extent to which it manifests itself in each Member State (or, indeed, whether it is even really recognised) – an essential preliminary to more detailed study. Second are likely to be those who need, for whatever reason, to get an intelligible overview of the employment law position in a series of Member States.   They will have a clear picture of the whole before they move on to scrutinise any particular part. Finally, there will be the Euro-buffs (amongst whom I unashamedly count myself) who are fascinated by the process of evolving law:  both as passive spectators and sometimes as active participants. Behind the mosaic of individual facts, an extraordinary kaleidoscope emerges.  One sees the tensions between different economic and social ideologies in the national traditions. As the reader learns more, both the challenge and the excitement of trying to reconcile different, often conflicting interests (European Social Model / free market forces; employer / employee; or national / Community, to name but three pairings) become apparent. In my work at the Court, I often wish, when I am asked to give an opinion on the meaning of a provision of Community law, that I knew much more than I actually do about the underlying law of all the Member States in that particular area, whatever it may be.  Works like the present are truly valuable in enabling one to get something like a reasonable ‘feel’ for what is going on, reasonably quickly.

Those who want to explore any individual Member State, or any particular aspect of employment law, further will inevitably want to go beyond what the authors offer here. They will duly get down to micro-level and will dig out the legislative texts, the court decisions, the ministerial guidance circulars and so on.  In so doing, they will start from a solid base and be able to assess the result of their more detailed researches by reference to a clear, structured framework. The authors have succeeded triumphantly in synthesising and presenting much complex and technical material in order to achieve that result.

 

Advocate General Eleanor Sharpston QC

Court of Justice of the European Communities

August 2007