The EU and the ECHR: Collective and Non-discrimination Labour Rights at a Crossroad?

Abstract

This article considers the future development of the constitutionalization of labour rights, in particular non-discrimination rights and collective labour rights, within the European Union's legal order following the entry into force of the Lisbon Treaty and in light of the EU's impending accession to the Council of Europe. The accession throws a spotlight on the relationship between the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU). The two courts' respective interpretations of certain labour rights contain elements of overlap and, in some respects, conflict which will presumably have to be reconciled under the new legal order within which the courts will find themselves. It is argued that the constitutionalization of labour rights would offer some important protections that should be fundamentally guaranteed and thus available to all workers but which are under threat due to transnational changes resulting from globalization. Furthermore, as the case law analysis demonstrates, the traditional hierarchy of rights by which civil and political rights were prioritized over their economic and social counterparts, has given way to an EU legal order whereby the economic imperative remains paramount, with social provisions, in the context of labour rights, subjugated and subject to further divisions.