The Danish government files an annulment action

The President of the EU Court of Justice: A trial will lead to legal clarifications on the minimum wage directive

By Claus Dj?rup

The Danish government files a case against the Council of Ministers and the European Parliament regarding the minimum wage directive. Minister of Employment, Ane Halsboe-J?rgensen -J?rgensen, and almost the whole parliament (Folketinget) want to protect the collective bargaining system against outside interference in form of a political decided minimum wage.

An annulment action usually lasts one and a half to a year, depending on the number of interventions, stated the President of the European Court of Justice, the Belgian Koen Lenaerts, during a visit to Copenhagen on 9th of January.

He assessed, without knowing the specific case, that the length would probably be two years when Danish is the language of the proceedings.

Litigation strengthens the EU's legal order

Koen Lenaerts is giving a boost to the litigation, because it will be an opportunity for clarifications, which is a part of rule of law.

It's absolutely legitimate for all member states – I'm not aware of this case, but this will also apply to this case - to bring an action for the ECJ. It's not an anti-european step. On the contrary, the member states are privileged applicants, and they do not even have to demonstrate an individual interest in the case, he emphazised.

The member states' direct proceedings at the European Court of Justice in Luxembourg is part of the responsibility for the sustainability of the common legal order. A lawsuit is not an expression of an aggressive attitude vis-à-vis the European Union.

-Even if the case is lost, the decision will contain useful interpretations, concluded Koen Lenaerts in his general statement.

Even a lost case limits the threat

-Koen Lenaerts denies that the lawsuit is a nuclear bomb or what has been said about it, points S?ren Bo S?ndergaard, who is EU spokeman for the leftist party Enhedslisten.

Trade unions and employers organizations see the directive as an attack on the Danish labour market model, that is based on negotiations rather than a political decree.

The experienced, leftisk politician in European affairs denies that it would be better with a foggy judicial situation than loosing to the case.

S?ren Bo S?ndergaard – who is EU spokesman on EU adffairs and a former MEP for Enhedslisten (Unity Party) – adopts the trade unions' legal advice. It says that the clarifications will limit the impact, even if Denmark loses the case about intervention against the Danish labor market model.

A legal position is established that the directive does not have the claimed effect, if and when the EU Court of Justice says in its judgment that the annulment action cannot be upheld because it does not have the effect that Denmark claims.

-Now it's just some politicians who say that it doesn't have that effect, concludes S?ren Bo S?ndergaard.

Looses political capital

On the other hand warns political science professor Marlene Wind, PhD , University of Copenhagen, about the risk. You can get a clarification from the ECJ that is actually worse than the current situation.

-Then the politicians can say to the trade union movement that "we have done what you asked of us and asked the EU court", and then the situation can be even more locked than before, says Marlene Wind.

Next, Denmark's political imnfluence in Brussels could deteriorate, because the court case postpones the implementation of the minimum wage directive for several years.

-The other countries are big supporters of the directive, and we should be aware of that, concludes Marlene Wind.

Margrethe Vestager reassured

If the EU Court complies with S?ren Bo S?ndergaard's rather than Marlene Wind's risk assessment, then it could do, among other things, turn EU Commissioner Margrethe Vestager 's assurances into legal practise.

-It is protected in the treaty that you have different ways of organizing your labor market system. Therefore, there is no intention to do anything that could disturb the Danish model for setting wages. The goal is to ensure that those in the absolute low-wage area have a little more to do with, declared the Danish EU Commissioner Margrethe Vestager three years ago at the beginning of the consideration of the directive proposal.

Individual right

However, this did not remove the doubt that the EU Court of Justice could force Denmark to accept the EU minimum wage if an individual complaint was raised.

MEP Marianne Vind (S) warned at that time that it would raise questions about Danish EU membership if a minimum wage directive was adopted as outlined. It will not happen from day to day, but the discussion will intensify if a specific case is brought before the EU Court of Justice.

The core of legal risk assessment is individual rights. If the EU court can find an individual right in a directive, then the court can assess the level of a fair wage, she feared and fears.

The holiday law was changed after a complaint

This happened with the Danish holiday law, according to Marianne Vind.

"Every EU citizen has the right to four weeks' holiday with pay" has been interpreted by the European Court of Justice as meaning, that you have the right to compensatory holiday if you fall ill during the holiday. It was also a complaint from a recent graduate that led to a sweeping change to the Danish holiday law, stated the former deputy chairman of the trade union HK/Privat.

-People stare blindly at the fact that the solution to the 'working poor' in Europe is that everyone is guaranteed a certain wage income. It is a brilliant idea that you have to secure everyone. However, if you have a zero-hours contract or work from a platform, you are not guaranteed a certain number of hours, and then you cannot use the minimum wage for anything, emphasized Marianne Vind.

Official minimum wage leads to gilets jaunes

-Where you have a minimum wage, e.g. in France, you see demonstrations and yellow vests, said 3F Transport Group's chairman, Jan Villadsen, at the start of collective agreement negotiations with Danish Industry three years ago.

CEO Lars Sandahl S?rensen, Danish Industry, stood by and observed with a look around Europe, that it does not set good standards for employees or provide companies with flexibility when parliaments decide on minimum wages.

THE CASE

The Ministry of Employment argues in its legal proceedings that the content of the directive includes the exception for "wage relations, right of organisation, right to strike or right to lockout", and consequently there is no authority to adopt the minimum wage directive.

The EU Court of Justice has not previously dealt with a directive that has ruled on wage determination as its purpose. The Court has only mentioned non-exhaustive examples of what is meant by direct intervention in wage determination, the Danish government emphasizes.

Furthermore, the concept of "organizational law" has not previously been the subject of the court's interpretation. Finally, unanimity is required to adopt a directive that relates to "collective defense of the interests of workers and employers", the government lawyers state about a lack of authority.

Article 153

The core of the lawsuit is interpretation of the treaty's article 153, that provides the authority for the directive.?

In 153.2.1 litra b stipulates, stipulates, that the European Parliament and the Council ”may adopt, in the fields referred to in paragraph1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.”

Wrong paragraph is applied, according the Danish point of view. The right paragraph is 153.5: ”The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.”

The judges are undoubtedly looking forward to treading virgin legal ground. Then it is exciting whether S?ren Bo S?ndergaard or Marlene Wind will be more right. (Dj/180123)

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