Judicial Enforcement of EC Labour Law. Time limits, Burden of Proof, ex Officio Application of EC Law. WP C.S.D.L.E. "Massimo D'Antona" N. 3/2002

Lo Faro, Antonio (2002) Judicial Enforcement of EC Labour Law. Time limits, Burden of Proof, ex Officio Application of EC Law. WP C.S.D.L.E. "Massimo D'Antona" N. 3/2002. [Working Paper]

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Abstract

[From the Introduction]. It would be hard to deny that the enforcement of Community legislation has up to now proceeded by means of a private enforcement model, as opposed to the public one initially provided for by the EC Treaty. This has been particularly true in the field of social law, where European citizens have been ensured of substantive rights deriving from Community law more by national courts acting on Article 234 preliminary references than by the European Court of Justice acting on Article 226 infringement procedures. This is not to be seen merely as a rsult of the inner weaknesses of the centralised public model based on infringement procedures. The absolute prevalence assumed over the years by the private enforcement model is rather to be understood as a corollary of the "twin pillars" of the Community legal order. The progressive consolidation of the doctrines of supremacy and - mostly - direct effect have altered the equilibrium between the pubic and the private route to the judicial enforcement of Community law, shifting the balance towards the latter. And indeed, had the Court of Justice not "discovered" supremacy and direct effect, the enforcement of EC law would have been entirely left either to the eagerness of the individual Member states to comply with their duties, or to the willingness (or the possibility) of the Commission to activate Article 226 proceedings. In either case, individual "Eurolitigation as an enforcement strategy for European labour law" would certainly not have played the role it has actually been playing since the seventies. It is within this broad framework that (national) remedies and procedures have become a fundamental complement for the effectiveness of (European) substantive rights. The pivotal role of individual ligigants claiming enforcement of EC rights before a national court explains the emphasis gained by judicial remedies within the case law of the European Court of Justice. And in fact, once the preponderance of the private enforcement model was acknowledged, it was unavoidable for the European Court to take into account the national sanctions and rules of procedure to be applied when disputing the effective enforcement of Community law.

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