1. Apart from some absolute results, most of the different aspects of life can be said to be dual. Success has its price as well, and often it is failure that teaches us the most. The official subject for this article refers to the labour law challenges associated with the enlargement of the EU. Thinking about the message I have recognized the abovementioned duality and given the title "light and shadow" to my article. On one side of the coin is the light which symbolizes the successes of the European labour law legislation. On the other side is the shadow; the problems common throughout Europe on the level of the Member States and the Union.
The directives of the EU determine the common but not uniform labour provisions, which have regard to the specialist needs and requirements of Member States. The twenty-five Member States are twenty-five different entities - besides their individual identities they have a separate legal system and separate historical traditions and social interests.
The different levels of social dialogue and the variable incidences of collective agreements in each of the Member States results in a different intensity of the state's role concerning labour law. The directives constitute the labour law expectations of the more developed - and probably luckier - part of Europe. The content of these directives eventually expresses the will of the Member States, as the decision-making mechanism of the EU does not act independently in this respect. All of these were not true till 1st May, to the nine other countries accessing to the EU together with Hungary. The participants from these new accession countries may confirm that the need to comply with the requirements of the EU has brought about absolute and inevitable external expectations of the accession in all of the ten countries.
From the 1st of May the obligation to imple-mention of the directives is converted, and the accession countries will also be entitled to take part in the constitution of the directives as well. The first task is to teach - during the general revision of the working time directive - how, by which procedure and through which partners to enforce our national interests. The preparation of the legislation has strengthened a new element, the lobbying among the experts of the EU Member States. Several times I have thought that the accelerated communication, the dumps of e-mails, provide several points of information but meanwhile the most important thing may disappear: the time which is necessary to produce adequate legislation.
How heavy was the workload of legal harmonization? The answer is different for each Member State, due to the twenty-five different national characters. The last five years for the ten accessing countries have been a legal harmonizational derby, as act modifications meant the implementation of five or six directives apiece. The mentioned duality characterizes the legal harmonization concerning the enlargement of the EU. It is one experience to walk and another to run on a nice promenade. When we walk we have time to remember the beauty - when we run all we remember is the rush. A significant difference among the accessing countries and the existing Member States is that the latter countries implemented the directives in accordance with the tempo of the European legislation, but for the ten new Member States the process has been a kind of modernization. Their internal rules have only been tuned to the European wavelength for a short while.
To double back to the abovementioned question let me relate a short story. In 2001, when Hungary had already adopted two-thirds of the labour law directives, Budapest Business Journal, an English-language newspaper, invited me to a conference. I was asked to rewiev the status of the legal harmonisation. The majority of the audience came from foreign countries but all of them worked in Hungary. I tried to be expressive. Probably you remember "God must be crazy", the commercial in which a bottle of Coca-Cola fell out of the sky and thumped onto the head of a koissa. Well, concerning the legal harmonisation it is not about the distance between the koissa and the bottle of Coca Cola. Due to various historical reasons, a unified Labour Code regulated employment in the states of the Central-Eastern European region, as in several countries of South America. In our region obligatory historical reasons meant that the Soviet model was followed, although several rules were born which were a good standpoint to the legal harmonisation, even though they were part of a totally different political and economic regime.
Hungary is a small state. In our internal relationship - in my opinion - the results and problems of the civilised societies may be found and modelled. The Hungarian legislation and the Hungarian em-
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ployment market as a whole have the same problems as presumably all of the developed countries: How can national and European legislation handle the phenomenon referred to as the "escape from labor law" by several authors?
Before we deal with any individual labor law issue, we cannot avoid taking a look at the tendencies to be observed in all countries of the enlarged European Union. The legislation of all states is effected by globalization - a second industrial revolution which has not only revolutionised production, but has also created opportunities - especially in the fields of transportation, telecommunication and control - and reduced distances and obstacles in time and space. From the multinationals' point of view, the world has become a single plant. The other factor influencing labor law legislation is the international interweaving of companies, or, more precisely, the supranatio-nalization of them, and the strong appearance of large investors. The increase of consumer needs is also typical. All this requires a permanent adjustment from economic players. The traditional rules and solutions of labor law and industrial relations are often ineffective when faced with the challenges created by globalization. The HR policies of the companies have changed. They intend to organize their company and organizational structures in order to be able to easily adapt to the changes. HR policies are subordinated to effectiveness and successful adjustment. The suitable workforce is organized in accordance with these policies, with as flexible a working time structure as possible. The requirements overstep the traditional framework of labor law, competition requires other solutions. Flexibility has come to the fore, and the expectation is also heard that the state should only regulate the most important principles and frameworks, and all other rules should be included in collective agreements and work contracts. Another tendency should not be neglected either: In the employment structure, it is not the industry, but services who employ the most people, while the number of agriculture workers has decreased to a few percent. Providing services requires conditions other than the former classic ones, and has requirements unfamiliar to traditional labor law. As examples, seasonality, independence, and weekend work can be mentioned. The changed employment structure cannot be disregarded either - the large Tailor-model plants have replaced by small and medium sized companies on a large scale. Another duality - people are longing for traditional employment, but most of them only have the chance only to engage in atypical employment.
With respect to the conditions I have sketched above, I would like to share my views on the successes and challenges of European Labor Law. All of this is of course a subjective selection, each and every of lawyer may write about different themes on the basis of our own professional interests and social sensitivities.
2. From 2002, as the head of the Legal Department of the ministry of labour, I took part in harmonization in two ways. The first one was a classical legislative task - with one amendment of the labor code, six directives were adopted. The other one took place in Brussels where I was representing Hungary with my colleagues in the procedure on checking the fulfillment of Hungary's harmonisation obligations.
One of the basic questions of a legislator's work is the following: Will the national labour law have more integrity, and be more suitable for the actual requirements after harmonization? In my opinion, this is what it makes sense to codify - the unification of rules by itself is nothing. I think there is another important question in connection with harmonisation, namely whether labour law legislation - bearing in mind the tendencies of our time - is sufficient as a European Union and member state measure to solve problems of employment.
To consider the above mentioned questions, let me start with two directives on atypical employment, namely 97/81/EC on part-time work and 99/70/EC on fixed term work. It is of common knowledge that the reason for issuing these directives is the overshadowing of full-time, indefinite employment. A German professor - exposing his doubts - has deemed the experience of trying to extend the rules of typical employment to atypical one as a Catch 22 situation. The extension of the rules of typical employment to atypical employment would abolish the advantages of the latter. The directive on fixed term work is qualified as 'soft' by a number of authors, judging it as a formal result that one of the three possibilities hindering employer misuses in connection with the extension of fixed term contracts is to be incorporated into national law. Member states may either regulate the maximum length of a fixed term employment, or introduce an obligation to give reasons in the case of extension of the contract, or, finally, limited the number of extensions that may be made. In this respect the Labour Code did not have to be modified; but at the same time - considering the labour market situation - it is important to raise the question as to whether it is possible to give greater protection by law to fixed term workers. The directive, by the way, uses the conditional tense, which is not legally binding.
If it is possible, the employers have to provide appropriate training opportunities for employees who are employed for a definite period. This is the rule set by the directive, -whereas it is not necessary
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to be a HR expert to draw the conclusion that as a general rule companies do not send fixed-term employees to training - they would rather train those employees whose knowledge can be developed and used for a long time.
In connection with the implementation of the fixed-term directive I have dual thoughts and feelings. In this respect 'light' symbolizes the fact that it is not necessary to choose absolutely between home and the biological role and career and profession. Accordingly, a mother with a young child - and, due to equal opportunities, a father with a young child - has the opportunity to work and be a mother/father at the same time. Fixed-term employment is advantageous for students whose family cannot afford to fund his/her studies. By providing employment for students the rules of the directive ensure that social barriers are breached and that each can fill in a job in accordance with her/his abilities. However, next to this light, there is shadow. Take a group of people employed for a definite period by necessity. This category of people endeavors to work full time, but their position is much worse than that of those who are unemployed. Otherwise, unemployment is not a legal category; it is a category of employment. If you, your relatives or friends have ever been in a situation of unemployment it should be clear to you that long-term unemployment may cause psychiatric problems; the feeling of being superfluous and inert can wreck the personality. The fixed-term directive regulates the termination of all kind of legal and administrative obstacles hindering the extension of fixed-term employment. All of these are fully in line with the report of the European Employment Working Group presided over by Wim Kok, the former Dutch prime minister. The said report was issued last autumn. Its aim is full employment. In my point of view this is similar to platonic love - perpetual struggling which never comes to anything. However, if we can ensure job possibilities, this struggling is not useless.
According to Wim Kok's report, the instrument of its goal could be the extension of fixed-term employment. For the success the instruments of labor law are necessary but not sufficient. The legal environment is key, but so is the tax-law, and health and pension insurance. And another absolute economic element, the wage.
Another legal area is the transfer of undertakings. This area has a particular resonance in the context of endeavors to establish the most efficient operational conditions. The transfers of undertakings require safeguarding provisions in order to ensure that the employees' interests are protected. The newest European requirements are regulated in Council Directive 2001/23/EC. Doubtless one positive effect of legal harmonization, as a consequence of legal succession, is to be found in the case of transfers of undertakings. Let me give you an example. If a hospital of a local government is privatized, the status of the employer changes and the employees will fall under the scope of Labor Code as opposed to the scope of the legal status of public employees.
According to the rules under the former, it was at the discretion of the privatized hospital whether it will keep on employing the doctors and nurses formerly employed as public employees. Following the harmonization of the directive, this defenselessness of the employee is over, and now the privatization of a publicly owned company cannot influence the existence of employment. This is a good example which shows that harmonization is important, it does improve the legal system with respect to guarantees for employees. The employer transfer directive - with respect to the rights of employees - leads to another duality. Just like in national law where we do not get a full picture if we disregard court practice, in European law we cannot disregard the practice of the European Court. In the context of employer transfers, the practice of the court seated in Luxembourg is especially important due to globalization, and internalization of the economy. An American attorney may also need to know the precedential court rulings in the same way as his/her European colleagues do. According to the directive, transfer means the transfer or merger of the undertaking or a part thereof to another employer on the basis of a contract. We can talk about transfer if an economic unit keeping its identity is being transferred, so it remains a group of organized assets carrying on its economic activity. In order to supplement this I would like to give the essence of a few examples: According to court practice, the criteria of transfer is the transfer of material and immaterial assets, the takeover of personnel, the takeover of clients, the identity of the activity carried out by the transferor and the transferee. These criteria have to be examined as a whole, not one by one. Partly deviating from the above, the European Court diagnosed transfer in a case where cleaning services were outsourced in a bank in respect of one cleaning lady. There was no transfer of material assets - the court stressed another criteria, the takeover of personnel, in order to declare this situation a transfer. The counterexample is a case from 2002, a case involving a Finnish bus company, in which the takeover of the workforce was not the dominant aspect. The winner of the tender on the operation of the business was provided with the buses, and through this a material economic asset was transferred, which gave the court a ground to deem the transaction as a transfer under the defini-
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tion in the directive. According to the practice of the European Court, the establishment of a transfer is not affected by the fact that the operators are not owners but only lessors of the transferred assets, whether they be real estate or other assets.
Apropos of this directive, I would like to mention another aspect of the harmonization tasks, namely the proceedings of the Commission examining whether the candidate member state's laws are in line with all the provisions of the respective directives. This was a work requiring special expertise and was - for the candidate countries - a high intensity work, since a report in a form of tables of concordance had to be completed in a very short period of time!
The provisions challenged by the experts of the European Commission were negotiated last summer in Brussels. We could not agree with respect to Paragraph 3 Article 4 of the directive. According to this rule, if the employment relationship is terminated because the transfer significantly changes the working conditions to the employee's disadvantage, the employer is obliged to terminate the employment agreement or the employment relationship. According to a decision made during the adopting of the directive the said provision is implemented and separate itemized regulations are not necessary.
On the one hand the legal successor is entitled to modify the employment contract only on the basis of mutual consent and the conditions of the employment can be modified only where it was the case that the predecessor had the same opportunity. On the other hand, in the case that the abovementioned general rules are violated, the employee is entitled to terminate the employment relationship by extraordinary notice and the employer has to pay the appropriate allowances relating to ordinary dismissal. For the first time the European committee monitoring the legal harmonization did not accept the arguments listed above. They gave us the following examples: where the transfer of a gazette changes the former view of the editorial office and it is not in line with the journalist's view. The other example was where in a hospital the legal successor facilitates abortion and the doctor does not agree with it. However this legislative hardship was solved by time, as later on in autumn 2003 in Dublin the European committee did not query the mentioned problem. Had they subsequently accepted our arguments, or had they forgotten the problem?
In my opinion, recently the most sensitive question is the revision of the working time directive - and the ten new Member States may have the opportunity to influence the revision.
Probably it is the inadequately precise and the unequivocal normative content of the directive which has led to different European committee and judicial interpretations relating to the most sensitive institution of labor law, the working time. Article 2 of the Council Directive 93/104/EC on the organization of working time qualifies the period of availability as working time. The definition contains two cohesive elements: the obligation of availability and the obligation of work performance. Consequently, if the employer instructs the employee to be available outside of his/her working time schedule it does not qualify as working time, it is not included in the limited 48 hours. Presumably the European Committee interpreted the definition of the directive in a similar way as the interpretation of the Hungarian legislation. It can be underlined by the fact that Bruxelles did not question the "extraction" of the period of availability from the limited 48 hours. Nevertheless, two judgments of the European Court of Justice are absolutely contradictory to the aforementioned interpretation. Both cases referred to the working time of doctors. In the SIMAP-case the court - contrary to the local regulations - qualified the period of availability, which is when the doctor is on call in a health center, as working time, consequently meaning that that period should be included in the 48 hours. The other judgment refers to a German doctor - the Jager-case. The European Court of Justice qualified the period of availability as working time, with special respect to the fact that the employee is obliged to spend the period of availability at his/her place of work.
The court held that the fact that during this period the employee may do anything, even rest or sleep, is irrelevant.
The consequences of these two court rulings do not only effect labor law. It is mainly the finances and the number of physicians and nurses available which determines whether a member state is in a
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position to be in line with the interpretation of the European Court. The rulings - which may even be unconsummated in certain member states - were also reacted to by the Commission. In September 2003 all member and candidate state representatives were invited to Brussels. The aim of the invitation was not the strengthening and accepting of the reasoning of the court rulings. To the contrary - the administration in Brussels - after a short assessment of the situation in the member and candidate states
- made a contradictory proposal. The harmonization of European labor law has its eyes on two interests: More flexible employment and the consideration of employee interests. The Commission proposal has three elements: the possibility of one-year reference periods as a general rule, the possibility of disregarding certain inactive periods when calculating the weekly 48 hour limit of working time, and, finally,
- as the price paid for more flexibility - the deletion of opt out, or at least the introduction of stricter rules in connection with it. Either the amount of working time should not exceed 48 hours a week - this would cause serious work organizational problems with respect to stand-by jobs, and in the health sector, or - and this would be more favorable for us - the opt out would be made stricter, so it would not be enough to have an agreement between the parties on the increase of the 48-hour working time. It is a reasonable criticism that the agreement itself does not provide a sufficient guarantee, since it might happen that employers might only be ready to enter into work contracts which specify a weekly working time in excess of 48 hours. That means that the requirement that the agreement is voluntary included in the directive becomes formal, the agreement on the working time extension becomes a condition of employment.
According to an informal statement of the Commission, by the end of summer the final proposal of the Commission will be elaborated, from which a new line of the Union labor law legislation may issue. According to an Austrian professor, the Union's economic policy is aiming towards liberalization. The question is whether this aim will also be found in European Union directives in the future.
3. Finally, I would like to mention one of the newest European Union challenges, the member state's takeover of the provisions of the agreement of European social partners which have not been announced in a directive. In 2002 in Bruxelles the European Trade Union Confederation (ETUC) and two employer organizations on the union level concluded a framework agreement on telework. In my opinion the said agreement is crucially important as it stipulates that telework qualifies as an employ-
ment relationship. Consequently, in itself, the fact that the employee performs work in his/her own home, in accordance with his/her general working time schedule, does not qualify the employment relationship as a civil law relationship. I think the profession of a lawyer can be performed as telework, as telework may be constituted by sitting in a park, using a lap-top and sending documents to the employee by way of an email. My cousin works in Paris at an international telecommunication company. In the company's experience, male employees are much more efficient at home on Mondays without shaving as opposed to where they are performing their work in their office under the pressure of stress. The implementation of the agreement - not announced in a directive - depends on the level of the social dialogue of the Member States. In Hungary less than half of the employees work under the scope of a collective agreement, so the rules of telework became part of the Labor Code because of the active participation of the state. The said rules entered into force on the 1st, May, on the day when Hungary became a Member State of the EU. The rules of telework can be said to be significant because the changing of technological conditions allow the changing of the definition of the workplace in several professions. The subsequent consequence of this could be the changing of the traditional labor rules.
In several opinions on the legal harmonization, the strained tempo did not take into consideration the internal, national circumstances. The duality. The light: each Member State fulfilled the requirements of the EU. The shadow: the internal, national problems.
Labour law became independent as a result of industrial revolution. The explosive change in technology in the recent past has amended the conditions so much that the main institutions of labour law have to be re-examined. Success requires the service of two masters, i.e. flexibility and employee-friendliness. Or - as people say it - that certain golden midway has to be found, creating a balance between capital and profit and human beings, families and private lifes.
Let me complete the article with a personal, subjective metaphor. The success of an orchestra depends on whether the songs are understandable for the audience. The value of a law depends on how it operates in practice. As for the orchestra, the constituter of a regulation only sets the framework, the success depends on the medium. ■
Lábjegyzetek:
[1] The Author is head of the Legal Department of the Ministry of labour
Visszaugrás
