On Tuesday, 14 January, an advocate general of the Court of Justice of the EU (CJEU) suggested that the Court of Justice annul a landmark text by the first ‘von der Leyen Commission’ in the field of employment and social affairs, namely the 2022 directive on adequate minimum wages that has been described as a ‘historic achievement’ (see EUROPE 13528/22).
Expressing his opinion following an action submitted in early 2023 by Denmark (see EUROPE 13096/13) – which Sweden subsequently supported – Advocate [General] Nicholas Emiliou simply found that the European Commission, the European Parliament, and the Council of the EU did not have the competence to adopt such an instrument.
“As is shown, in particular, by its Articles 1, 3, 4, 5, and 12, the AMW Directive has as its object to regulate ‘pay.’ Consequently, it directly interferes with the ‘pay’ exclusion in Article 153(5) TFEU”, indicates the advocate general.
[He goes on to state,] “It follows that the EU legislature was not competent to adopt that instrument and, thus, acted in breach of the principle of conferral laid down in Article 5(2) TEU.” (The advocate general of the Court of Justice explains, “In accordance with the principle of conferral [...] which is essential in a European Union founded on the rule of law, [...] the European Union is to act only within the limits of the competences conferred upon it by the Member States in the Treaties.”)
Nicholas Emiliou thus has the expectation that these considerations “should lead the Court to conclude that the AMW Directive must be annulled in full”.
The 2022 directive calls on Member States to check that their minimum wages are adequate and enable people to escape poverty. It also asks them to increase the threshold regarding [the number of] workers covered by collective agreements but does not impose the creation of minimum wages where they have not been provided for by law.
For Denmark and Sweden as well as their trade unions, this European instrument on minimum wages – the very first of its kind – carried the risk of disrupting the existing social model and lowering standards.
In its action, the Danish government argued that the European Parliament and the Council of the EU had infringed the principle of the conferral of powers and that this directive would “interfere directly” with matters reserved for Member States, on which the defendants do not have the right, under the Treaty, to legislate – i.e., in the areas of pay and the right of association.
The European Commission has “duly noted” this opinion and is now awaiting the [CJEU’s] judgment, noting in its response to Agence Europe that, at this stage, the opinion is not binding.
In Sweden, PTK, the council for negotiation and cooperation—which has 26 member unions and represents over a million salaried employees in the private sector—welcomed the preliminary examination.
“The EU operates within a clear legal framework, where the Court [of Justice] is ultimately responsible for ensuring that the Treaties’ limits are respected in terms of legislative competence”.
“Any new initiatives in the area of wages must be fully compatible with the competences conferred on the EU by Member States”, added PTK President Peter Hellberg.
Link to the opinion: https://aeur.eu/f/f1g (Original version in French by Solenn Paulic)