A main feature of the development from the Danish welfare state as it was on 1 January 1973, when Denmark entered the EC to the multi-level European Social Model, as it is anno 2010, is the shift from a non-constitutional to a constitutional approach to fundamental social rights and non- discrimination. For countries like Denmark with a strong tradition of majoritarian, parliamentary democracy and no constitutional courts, the EU development results in a pressure to accept constitutional review of legislation by courts such as the ECJ.
7.1.1. Majoritarian, Parliamentary Democracy versus Constitutional Democracy
Within the different forms of political democracy that are practiced at national level in the EU a distinction can be drawn between, on the one hand, majoritarian, parliamentary democracy, which is used in Denmark and the other Nordic countries and the UK and, on the other hand, constitutional democracy, 210
209
Ulla Neergaard: In Search of the Role of ‘Solidarity’ in Primary Law and the Case Law of the European Court of Justice in Ulla Neergaard, Ruth Nielsen and Lynn Roseberry (eds.): The Role of Courts in Developing a European Social Model - Theoretical and Methodological Perspectives, Copenhagen 2010.
which is used in a number of other EU Member States; see further
210
See Marlene Wind, Dorte Sindbjerg Martinsen and Gabriel Pons Rotger: The Uneven Legal Push for Europe – Questioning Variation when National Courts go to Europe, European Union Politics No 4, 2008. See also Marlene Wind’s description of her research interests at her website http://www.cep.polsci.ku.dk/forskere/mwi/ where she writes: ’Jeg skelner her imellem 'majoritarian democracy' som vi kender fra Danmark og i nordiske lande, hvor det parlamentariske flertal står i centrum og så det 'konstitutionelle demokrati' i det meste af det øvrige Europa, hvor man lægger stor vægt på domstolskontrol med lovgivningsmagten. Min tese er at vores demokratiform med 'ingen over eller ved siden af Folketinget' ikke passer særlig godt med den form man finder i EU og i resten af Europa.’, it means (translated by Neergaard and Nielsen): ’I distinguish between 'majoritarian democracy' as we know from
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below in section 7.1.3. on the separation of power between parliaments and courts. In labour and welfare law constitutional democracy is particularly highly developed in Germany.
Denmark entered the EC in 1973 as a majoritarian, parliamentary (and non-constitutional) democracy. As pointed out in section 2, Denmark has traditionally not protected fundamental social rights or the principle of non-discrimination in the text of the Constitution and the Danish courts – which are not elected and therefore are not seen as having political legitimacy – have by and large abstained from deciding matters of (party) political importance.
Originally – when the EC was founded in the 1950’ies – EC law was mainly of an economic character. The EU only later developed into a more political union and now seems to be in the process of developing into a kind of constitutional democracy. After the adoption in 2000 of the Charter of Fundamental Rights of the European Union, it has become usual in academic literature to talk about constitutionalisation of the EU.211 As mentioned above in section 4, von Bogdandy understands EU primary law as constitutional law. In favour of this terminology he refers to the fact that the primary law justifies the exercise of public power, it legitimises acts of the EU, it creates a citizenship, it grants fundamental rights, and it regulates the relationship between legal orders, between public power and the economy, and between law and politics. Numerous common elements of EU primary law and national constitutions thus emerge in a functional comparison.212
The distinction between constitutional democracy and majoritarian, parliamentary democracy is linked to the distinction between the monist and dualist approach to the relationship between international and national law. In its pure form, the monist approach considers the rules of international law to be part of the domestic legal system and requires the courts to apply them directly. Conflicts between international law and rules of domestic origin may in a monist system be solved in various ways, for example by giving priority to international law, to the domestic rules, to the domestic rules of a certain rank, etc. Under EU law, international treaties entered into by the EU form part of EU law without any incorporation being necessary. EU law is thus based on the monist approach. The monist approach fits well with the structure of a constitutional democracy.
The Scandinavian countries, on the other hand, have traditionally followed the dualist approach according to which international law is a separate legal system, not directly applicable in national courts. In the dualist approach the national parliament serves as a ‘gate-keeper’ that controls the influx of public international law into national law. This means that conflicts between international and domestic law can in principle not arise before national courts, which are not allowed to apply international law directly but have a duty to interpret national law in accordance with international law if that is possible. In order for treaties ratified by ‘dualist’ states to become part of national law,
Denmark and the Nordic countries, where the parliamentary majority is at the centre and the constitutional democracy in most of the rest of Europe, where great emphasis is put on judicial control of the legislature, My thesis is that our form of democracy with ’no one above or at the side of the parliament (the Folketing)’ does not fit well with the form of democracy one finds in the EU and the rest of Europe.’
211
There is an abundant academic literature on constitutionalisation of the EU, see among many Beate Rudolf: European Union, International Journal of Constitutional Law 2003 p. 135, Gráinne de Búrca and Jo Beatrix Aschenbrenner: The Development of European Constitutionalism and the Role of The EU Charter of Fundamental Rights, Columbia Journal of European Law 2003 p. 355, Udo Di Fabio: A European Charter: Towards a Constitution for the Union, Columbia Journal of European Law 2001 p. 159, Koen Lenaerts and Eddy de Smijter: A “Bill of Rights” for the European Union, Common Market Law Review 2001 p. 273 and Ingolf Pernice: Integrating the Charter of Fundamental Rights into the Constitution of the European Union: Practical and Theoretical Propositions, Columbia Journal of European Law 2003 p. 5.
212
See further Von Bogdandy, Armin: Founding Principles of EU Law: A Theoretical and Doctrinal Sketch, European Law Journal, 2010 p. 95.
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they must be incorporated by national legislation of some kind, i.e. by the national parliament. In most cases the Scandinavian courts will be able to interpret domestic law so as to comply with the country’s international obligations, but on a few occasions the principled dualist approach has been upheld by the courts.
Membership of the EU places the Nordic countries in a double context. The Nordic member states are now both ‘monists’ as EU states and ‘dualist’ as individual nation-states. This new context incites a shift in approach from the dualist to the monist theory. In respect of public international law, the traditional Scandinavian preference for the dualist theory is being softened, and a more mixed monist and dualist approach is being developed.
7.1.2. Multi-level Constitutionalism Ingolf Pernice213
7.1.3. Separation of Power between Legislators and Courts
uses the concept multi-level constitutionalism to name a dynamic process of constitution-making instead of a sequence of international treaties which establish and develop an organisation of international cooperation. Seen in this perspective, the European Social Model today (2010) has a multi-level constitution made up of the constitutions of the Member States bound together by a complementary constitutional body consisting of the European Treaties (since the coming into force of the Lisbon Treaty, the Treaty on the European Union, the Treaty on the Functioning of the European Union and the Charter of Fundamental Rights) and a number of general principles of EU law including the principle of non-discrimination.
In a majoritarian, parliamentary democracy, the parliamentary majority is the central authority and source of legitimacy. Legitimacy in such a system is based on representativity. As Føllesdal214 states:
Nordic public debates have tended to conflate legitimacy and majoritarian parliamentarianism. Parliament is seen as the site of legitimacy, as the privileged arena for the expression of the general will. There are no Constitutional Courts, and the constitutions and constitutional conventions leave great scope to parliamentary discretion. Thus it is for the Parliaments themselves to decide whether legislation is within the bounds of the constitution.
In Denmark, legislative power concerning the labour market – with regard to the problems dealt with in the Blurring Boundaries project for example the legislative power to fix minimum wages – is largely delegated from the parliamentary legislator to the social partners215 which are also representative and therefore enjoy the same kind of legitimacy as the parliamentary legislator. Denmark has no statutory Act on minimum wages but as described above in section 6.3, the Danish Labour Court216
213
Pernice, Ingolf: Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?, Common Market Law Review 1999 p. 703.
in 2005 in a very Laval-like case stated on minimum wages in Denmark that the Danish labour market regulation is characterised by the wage level etc. being ensured through collective agreements, not through (parliamentary) legislation. Danish labour law evolved during the first part of the 20th century into a semi-autonomous legal discipline which was to a
214
Føllesdal, Andreas: Rawls in the Nordic Countries, European Journal of Political Theory 2002 p. 181.
215
See Nielsen, Ruth: Europeanization of Nordic Labour Law in Scandinavian Studies in Law Volume 43, Stability and Change in Nordic Labour Law, Stockholm 2002 p. 37.
216
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considerable extent left to the main Danish social partners, in particular the Danish Employers’ Organisation (DA) and the Confederation of Trade Unions (Danish LO). In Denmark, the social partners serve both as legislators, judges and litigators. The labour market organisations fulfil legislative functions mainly through the adoption of collective agreements. They have adjudicative functions mainly by participating as lay judges in the special labour courts and industrial tribunals. Finally, trade unions are the main litigators in Danish labour law, both in collective labour law cases adjudicated by the special Labour Court/industrial tribunals and in individual employment law cases adjudicated by the ordinary courts. Collective agreements are thus, in a Danish context, the key both to the legislative and the adjudicative function of the social partners. They typically prefer this means for implementing EU labour law directives in order to maintain their roles as legislators and judges.217 Article 28 of the Charter of Fundamental Rights in the EU218
In majoritarian, parliamentary democracies there are no constitutional courts, and the ordinary courts do by and large not control whether the legislator respects the constitution and the fundamental rights that may be included in its text. In contrast, judicial review of the exercise of legislative power and control of the legislator’s compliance with fundamental, constitutional rights is an important element in constitutional democracies. The multi-level constitutional context Denmark became part of through its membership of the EU has been a challenge to traditional Danish (and Nordic) views on the separation of powers between legislators and courts. As Martin Scheinin states:
protects the right of trade unions to fix wages by means of collective agreements and to take collective action in support of such agreements; see above in section 6.3 on the Laval judgment. The concept of collective action in Article 28 of the Charter is an example of a multi-level concept. As set out above in section 6.3, the decisive coercive element in Danish and Nordic collective actions against employers who have not previously been bound by collective agreements is the secondary action which is lawful in Nordic law. In some other countries, for example, UK law, secondary action is prohibited and is not regarded as protected by the fundamental right to take collective action. In the Laval judgment the ECJ abstained from interfering with what kind of coercive actions could be used in support of collective agreements and only held that a level of transparency must be assured in order to respect the principle of free movement of services while exercising the right to take collective action.
219
In the Nordic countries it is customary to state that it is the legislator that makes, through adopting and amending laws, all important decisions on policies and principles. The role of courts of law is seen as implementing the will of the legislator. Within Community law the situation is different as the normative framework of Community law is incomplete as a legal system and as the European Court of Justice (ECJ), consequently, has a strong position in the development of the law and in securing coherence in law.
217
See further Nielsen, Ruth: Implementation of EC Directives in Denmark, International Journal of Comparative Labour Law and Industrial Relations 2002 vol. 18, issue 4.
218
Article 28 reads: Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
219
Scheinin, Martin: Constitutionalism and Approaches to Rights in the Nordic Countries, in Nergelius, Joakim (ed.): Constitutionalism: New Challenges. European Law from a Nordic Perspective, Leiden/Boston 2008.
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The ECJ started as an administrative court mainly set up to control EC/EU institutions but has over the years developed into a court that resembles constitutional courts like the American Supreme Court or the German Bundesverfassungsgericht – a development that has attracted criticism from both Euro-sceptic political parties in Denmark and in Danish academic literature.220
The 2009 conference held within the framework of the Blurring Boundaries project centred on the role of courts in developing a European Social Model.221
7.1.4. Constitutional Rights
The book contains ten contributions altogether, each of which addresses different dimensions of the general theme. The three contributions in Part One are written by Hans-W. Micklitz, Dagmar Schiek, and Ulla Neergaard. Each of these essays represents a horizontal approach to the European courts’ role(s) in the development of the European Social Model in that each essay examines the courts’ treatment of issues arising across different subject areas. For example, Micklitz looks at anti-discrimination law, consumer law, and universal services. Part Two includes contributions from Eleanor Spaventa, Mia Rönmar and Lynn Roseberry. Each of these contributions considers the courts’ role(s) in a specific subject area: Spaventa on citizenship, Rönnmar on labour, and Roseberry on fundamental rights. The final part consisting of four essays by Ruth Nielsen, Finn Arnesen, Joxerramon Bengoetxea and Antonina Bakardjieva Engelbrekt investigates more explicitly theoretical and methodological aspects; see for further detail Annex 1.
Robert Alexy222 states that the role of constitutional rights in a legal system depends on four closely connected points: (1) their binding force, (2) their institutionalisation, (3) their content, and (4) their structure. According to him, there is a broad consensus on the question that if a constitution includes constitutional rights, they should as Article 1(3) of the German Grundgesetz223
In the Danish Constitution, Chapter 8 deals with Citizens’ rights. This chapter only covers some civil and political rights (personal liberty, ownership, freedom of expression, freedom of association, freedom of assembly, etc.) but no social rights, and there is no constitutional guarantee of the principle of non-discrimination in Denmark (apart from what follows from EU law). On the Danish Parliament’s website, there is a semi-official translation into English of the Danish constitution with explanatory remarks.
puts it ‘bind the legislature, the executive and the judiciary as directly applicable law’, and this binding power should be guaranteed by means of some kind of institutionalised power, be it a constitutional court or some other body. Such a consensus probably exists in constitutional democracies, but it does not extend to majoritarian democracies like Denmark as it was before Denmark’s entry into a new constitutional context through membership of the EU.
224
Here it is stated:
220
See Rasmussen, Hjalte: On Law and Policy in the European Court of Justice, Dordrecht 1986.
221
See Ulla Neergaard, Ruth Nielsen and Lynn Roseberry (eds.): The Role of Courts in Developing a European Social Model - Theoretical and Methodological Perspectives, Copenhagen 2010.
222
Alexy, Robert: Constitutional Rights and Legal Systems, in Nergelius, Joakim (ed.): Constitutionalism: New Challenges. European Law from a Nordic Perspective, Leiden/Boston 2008.
223
Article 1(3) of the German Grundgesetz reads: (3) Die nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittelbar geltendes Recht.
224
http://www.ft.dk/English/~/media/Pdf_materiale/Pdf_publikationer/English/My%20Constitutional%20Act_samlet_web%20pdf.as hx.
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Part eight deals with citizens’ rights and freedoms. This is referred to as the Constitutional Act’s Part on constitutional rights or human rights. In 1992, Parliament passed an Act adopting the provisions of the European Convention on Human Rights in Denmark. Many of the rules in the European Convention on Human Rights go further in their protection of human rights than is the case with the Danish Constitutional Act.
As will appear from the following sections, one of the main differences between the human rights protection offered by the ECHR and the protection of fundamental rights in the EU is that EU law protects not only civil and political rights more or less in the same way as the ECHR does but in addition fundamental social rights and non-discrimination to a much larger extent than the ECHR does.
According to Robert Alexy,225 there are two main constructions of constitutional rights: one is narrow and strict, and the other is broad and comprehensive. The first can be called the rule construction, the second the principle construction. Under the rule construction deciding whether or not a constitutional right has been violated depends on whether the relevant facts can be subsumed under the rule, under the principle construction a balancing of colliding constitutional principles is required. There is not agreement among German scholars as to whether the constitutional rights in the German Grundgesetz should be interpreted under the rule construction or the principle construction. Alexy argues that from a methodological point of view, the concept of balancing is the central concept in the adjudication of the German Bundesverfassungsgericht. The contributions provided within the framework of the Blurring Boundaries project suggest that the same is true as far as the ECJ is concerned.226
7.2. The EU Development of Protection of Fundamental Social Rights and Non-discrimination
7.2.1. The Distinctions between Civil and Political Rights and Social and Economic Rights Civil and political rights have received broad support and recognition at both a theoretical and practical level in Western liberal democracies and have also been guaranteed according to the text of the Danish Constitution; see above on Chapter 8 of the Danish Constitution. Economic and social rights, on the other hand, tend to have a subordinate status and remain highly contested.227
The UN Universal Declaration of Human Rights contains both civil, political, economic, social and cultural rights within one text and proclaims their universality and indivisibility. In 1952, when the ideological conflict between the Soviet Union and Western liberal democratic states had become