Overview:
Legal systems across continental Europe are largely founded on Roman Law and Germanic customary law. These have been highly influential in shaping national codes and have given rise to legal frameworks that rely less on case law and 'precedent' than the common law jurisdictions operating in Britain and the USA.


The first comprehensive legal codifications during the modern era appeared in France during the nineteenth century (Napoleonic Law), and in the newly unified state of Germany in 1900 in the form of the the German Civil Code (BGB). It is important to note that certain principles contained in the BGB are implicit elements in many other national codes today. These include the right to individual autonomy, the role of the law to redress the vulnerability of a weaker party in a commercial relationship (i.e. the employee) and the concept of 'unjustified enrichment'.

European Union Law:
The European Union (EU) has legal personality in its own right. It may enter into contracts and defend its legal interests without intervention from any of the member states.

The treaty that underpins the EU is primarily concerned with the economic relationship between states. From the outset, however, there has been a social dimension in the treaty. This was placed there by the founding fathers as a 'quid pro quo' for the wealth-generating benefits of the EU (EEC) for the corporate sector. The basic social right was the freedom of movement of labour. Every EU national is entitled to take up and pursue employment in the territory of another member state under the same conditions as the nationals of the host state (EU Treaty Art 1 and Regulation 1612/68). A host state may only exclude an individual where there is evidence that their personal conduct poses a present threat to public order. They may, however, impose conditions relating to linguistic competence where this is directly relevant to their employment (ECJ case reference C-397/87).

Since 1969 (Strauder v City of Ulm) a 'de facto' body of general human rights principles has been introduced by the European Court of Justice (ECJ) to avoid clashes with national constutional rights when making their decisions. More recently, the EU treaty has also incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

Several fundamental rights have been recognised in ECJ case law - the right to a fair hearing (C-98/79), freedom of expression (C-260/89) and the right to privacy (C-118/75). However, when the ECJ has strayed from the Convention, problems have sometimes arisen. For instance, in a UK case concerning client confidentiality (C-55/790), the Court interpreted rights by reference to UK law and thereby inadvertently turned their ruling into a precedent for other member states. In several other well-publicised cases, the ECJ has also been willing to question constitutional rights when they have been opposed to basic economic freedoms contained in the EU treaty.

Direct Effect:
This is an important phenomenon that gives individuals the power to claim rights conferred directly by EU treaties, regulations, decisions and directives (after their effective date) even if their member states have failed to introduce them into domestic law (Frankovitch case) or have not implemented them correctly (Factortame case). These rights may be claimed by an individual in relation to the state and related public bodies (vertical direct effect), or in relation to another individual (horizontal direct effect) because they are also subject to the same overarching framework of EU rules. However, the ECJ has been reluctant to rule in favour of horizontal direct effect in the application of directives.

Indirect Effect:
This requires the domestic court of an EU member state to interpret all national laws in the light of directives, even if the law in question was not based on the directive (Von Colson C-14/83 and Harz C-79/83). The Von Colson principle is constrained, however, from being applied where an interpretation would 'run counter to the legitimate expectation of individuals' in a member state by distorting the words of a national statute (C-80/86). It is irrelevant whether a national statute was enacted before or after a directive came into force (Marleasing C-106/89).

The changing role of the ECJ and its growing body of case law has forced continental legal systems to break away from their tendency to codify all human activities in order to deal with every legal contingency. Complex ECJ rulings and the operation of direct/indirect effect procedures are forcing the courts and legal practitioners to operate more flexibly and think laterally about issues that confront them.

Issues and Questions:
What difference would a legal system based on Roman Law have upon day to day human resource management, compared to one based primarily on Common Law?

How might the 'direct' and 'indirect' rules affect the conduct of human resource management? How well are you aware of the potential differences that currently exist between national and EU legal requirements?

Why do the labour law systems of EU member states appear to differ so significantly, despite the increasing pressures towards harmonisation from the European Union over the last four decades?

Article 85 (1) of the EU treaty prohibits 'all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states, and which have as their object or effect the prevention, restriction or distortion of competition within the common market'. How might EU competition rules apply to European trade union negotiating guidelines, or transnational collective agreements?



as quoted from the Federation of European Employers

http://www.fedee.com