Case Notes
| DOI | 10.1177/1023263X1402100407 |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| Subject Matter | Case Notes |
704 21 MJ 4 (2014)
CASE NOTES
THE RIGHT TO INFORMATION AND
CONSULTATION IN ARTICLE27 OF
THE CHARTER OF FUNDAMENTAL
RIGHTS OF THE EUROPEAN UNION
Less than a Right and Less than a Principle, just an
Ordinary Provision Lacking Direct E ect?
Case C-176/12 Association de mé diation sociale v. Union locale des syndicats CGT and
others, Judgment of 15January 2014
F D*
§1. IN TRODU CT IO N
On 15January 2014, the Grand Chamber of the Court of Justice (CJEU) delivered a
judgment on a request for a preliminar y ruling in Cas e C-176/12 Association de médiation
sociale v. Union locale des syndicats CGT and others.1 e fact that the CJEU was composed
as a Grand Chamber suggests that the case was ‘of exceptional importance’.2 e
reference related to the interpretation of Art icle27 of the Charter of Fundamental Rights
of the European Union (the Charter), which recogni zes a workers’ ‘right of information
and consultation withi n the undertaking’. Despite the existence of an impressive body
of directives in the eld of worker involvement, a request for a preliminar y reference
concerning Art icle27 of the Charter is unprecedented. More importantly, the judgment
sheds light on the question whet her and to what extent Charter principles, as oppos ed to
genuine Charter rig hts, are ‘judicially cogn izable’.
However, a reference to the distinction between a Char ter principle and a Charter
right, which lays at the heart of Article 54(5) of the Charter, has been scrupulously
* Professor of Labour L aw, Université catholique de Louvai n.
1 Case C-176/12 Association de médiation s ociale v. Union locale des s yndicats CGT and other s, Judgment
of 15January 2014, not yet repor ted.
2 See Article16 of Protocol (No 3) on the S tatute of the Court of Jus tice of the European Un ion, [2010] OJ
C 83/210.
e Right to Infor mation and Consultat ion in Article27 of the Ch arter of
Fundamental R ights of the Europea n Union
21 MJ 4 (2014) 705
avoided. e judgment does not encourage domestic judges to take an ac tivist stance
in the face of statutory provisions implementing EU directives, where these statutory
provisions are manifestly i ncompatible with the provisions of the directive they seek to
implement. Apparently, the mere fact that such direc tives can be viewed as i mplementing
the Charter principles did not make any di erence. e judgment is relevant as far as
labour law directives come into play which de ne the personal scope of application
by way of a reference to the law of the Member States. In these di rectives, there is no
autonomous concept of an employee. e judgment puts a restr iction on the leeway
o ered to the Member States. It restricts t he ability of Member States to preclude workers
under a contract of employment according to the law of a Member State f rom the scope of
statutory provisions implementing these d irectives. In this respect, the Gra nd Chamber
con rms an older judgment in CGT and others v. Premier Ministre de l’Emploi, de la
Cohésion sociale et du Logement.1
e fact that t he French Republic seems to have a bad record, in circumventing
the application of Framework Directive 2002/14/EC on Informing and Consulting
Employees2 did not stimulate the CJEU to empower the French tribunals envisaging
to uphold European Union law to disapply statutory provisions incompatible with
Directive 2002/14/EC. In the end, t he French employees have been abandoned by their
national legislator as well as by their Constitutional Court (Conseil constitutionnel). A
reference to the CJEU proved not to be helpful, in al lowing the Supreme Court (Cour
de Cassation) to safeguard the employees’ right to information and consultation. e
dialogue bet ween these various cou rts has not proven to be very bene cial to t he rights
of employees, although the right to information and consultation has a constitutional
status in both t he French and the European legal order.
In this article, I will describe the facts of the case and the legal proceedings
surrounding the preliminary reference. A er analysing the CJEU’s judgment, I will
focus on a number of issues that make up t he core of the judgment.
§2. THE FACTS OF THE CASE
e Association de Médiation Sociale (AMS) is a non-pro t organization active in
Marseille. e name refers to its most prominent activity, which pertains to the eld
of ‘social mediation’. rough the presence of so-ca lled ‘mediators’ in critica l areas of
Marseille, its goal is to contribute to the prevention of crime. e AMS seek s to provide
1 Case C-385/05 CGT and others v. Premier Min istre de l’Emploi, de la C ohésion sociale et du Log ement
[2007] ECR I-634.
2 Directive 20 02/14/EC of the Europea n Parliament and of the Council of 11 March 2002 establishin g
a general fra mework for informing and c onsulting employees i n the European Com munity – Joint
declaration of t he European Parlia ment, the Council a nd the Commission on employe e representation,
[2002] OJ L 8/29.
Filip Dorssemont
706 21 MJ 4 (2014)
job opportunities for unemployed persons or persons with social and professional
di cu lties, in order to promote their reintegration into working life. Under French law,
the ‘contrat d’accompagnement dans l’emploi’ (the accompanied employment contract)
is the most appropriate tool available for that purpose. e French Labour Code (Code
du Travail) makes it abundantly clear that such a contract needs to be quali ed as an
employment c ontract (contrat de travail).3 At t he time of the proceedings, AMS had t hus
recruited between 120 and 170 employees under accompanied employment contracts.
If a threshold of 50 employees is reached, the French Labour Code provides for a dual
channel system of workers’ representation.4 e employer is required to recognize a
trade union representation (une section syndicale) designated by a representative trade
union as well as to organize elections for the establishment of a works council (comité
d’entreprise). However, there is a caveat. Under French law, workers under a ‘contrat
d’accompagnement’ are not taken into account for the c alculation of the threshold of 50
employees.5 is rule allowed AMS to c laim that the threshold of 50 employees had not
been reached, since only 8 employees could be ta ken into account.
e French trade union CGT decided to designate one of the permanent workers
as a member of a section syndicale under construction at AMS. Opposing the trade
union’s decision, AMS argued that the t hreshold of 50 employees had not been reached
and, thus, worker’s representation pursuant to French Labour Code was not triggered.
Subsequently, AMS suspended the employment contract of the designated permanent
worker and challenged the proposed formation of the sec tion syndicale in court (Tr ib un al
d’Instance de Marseille).
§3. THE PROCEDURE OF THE CASE
e Tri bu na l d ’I ns ta nc e had doubts regarding the constitutionalit y of the statutory
provisions, which seem to di erentiate between employees based on the nature of their
employment contract. For this reason, it referred a preli minary question to the French
Constitutional Court in order to determine whether t he provisions did not violate the
constitutional principle of equality as well as the f undamental right to organize (liberté
syndicale) and the right to worker involvement at enterprise level (la participation des
travailleurs à la détermination collective des conditions de travail et à la gestion des
entreprises). However, the French Constitutional Cour t6 considered that neither of
3 See Articl e L 5134–24 of the French Labour Code.
4 See in this respect, P. Lokiec, Droit du travail. Les relati ons collectives d e travail (1st edition, PUF,
2011), p.13–146; and P. Lokie c, ‘Trade Union re presentation in France’,in C. La Macch ia, Representing
employee intere sts: trade union system s within the EU (Editoria l Bomarzo Albacete , 2013), p.135–152.
5 See Articl e L 5134–66 of the French Labou r Code.
6 Conseil const itutionnel, Decision n°2011–122, QPC of 29April 2011, www.conse il-constitutionnel.f r/
conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2011/2011–122-
qpc/decision-n-2011–122-qpc-du-29-avril-2011.96630.html.
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