Title: The Institutional and Normative Significance of the European Union's Acquired Rights Directive
Abstract: I. INTRODUCTION On February 14, 1977, the European Economic Community (EEC) 1 enacted the Acquired Rights Directive (Directive) safeguard the rights of employees in the event of a business transfer.2 As incorporated into Member States' national laws,3 the Directive mitigates the effect of business transfers, such as mergers, acquisitions, and contracting-out on employees.4 It establishes the right continued employment on substantially equal terms before and after a business transfer.5 Recent decisions by the European Court of Justice (ECJ) have broadly interpreted the Directive.6 This Note argues that the controversy surrounding the Directive reflects a larger struggle within the European Union (EU) between proponents of a strong, centralized European government with expansive jurisdiction over social and economic policy, and those with a more modest vision of European unity. The Note examines Commission v. United Kingdom, a recent ECJ decision disrupting the U.K's privatization initiatives by largely invalidating that country's implementation of the Directive.7 According the ECJ's interpretation of the Directive, the British government, a well-established opponent of a strong, centralized EU government, must protect the rights of public and private employees affected by business transfers.8 This Note further contends that the institutional controversy surrounding the Directive raises normative questions about the scope of EU social policy objectives. Specifically, this Note argues that the EU must reconcile the need for unity and harmony among Member with the importance that the EU has traditionally placed on social policy. Finally, the Note concludes by finding that subsidiarity provides the principle for reconciling these two overarching goals. In favoring local, rather than EU legislative initiatives, the principle of subsidiarity, as enunciated in the Treaty on European Union (TEU),9 provides greater flexibility for each Member State develop its own social policies. Subsidiarity also would resolve the controversy created by Commission v. United Kingdom and would preserve privatization in the United Kingdom. II. DISCUSSION A. The European Union 1. Background In 1957 six nations-Belgium, Germany, France, Italy, Luxembourg, and the Netherlands-signed the Treaty Establishing the European Economic Community (EEC Treaty), giving birth the EEC.la These nations sought establish a common market and to promote throughout the Community a harmonious development of economic activities.11 The TEU, enacted in 1992, is now the governing constitution of the EU-obligating each Member State conform its laws those of the Community.12 The ECJ has held that the TEU provisions render automatically inapplicable any conflicting provision of current national law.13 The only binding sources of law in the EU are treaty provisions, regulations, directives, and decisions.14 Unlike regulations, directives permit Member adopt independent procedures for incorporating such directives into their national laws.15 Despite this policy, the ECJ has heard a number of challenges Member States' power choose form and methods in employing EU directives.16 One commentator has suggested that as a result of Francovich v. Italian Republic, the ECJ has begun second-guess the competence of Member States in implementing EU directives.17 The EU divides law-making power among several entities. The European Commission (Commission), composed of representatives appointed by the Member States, proposes legislation.18 The European Parliament (EP), composed of representatives elected directly by citizens in each Member State,19 reviews the proposals and offers opinions or amendments them.20 Finally, the European Council (Council) consults with the EP and votes on proposals from the Commission.21 Although some proposals require only qualified majority assent,22 the Council ordinarily votes unanimously enact binding legislation on Member States. …
Publication Year: 1996
Publication Date: 1996-01-01
Language: en
Type: article
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