A little learning is a dangerous thing: AG Emiliou on the Adequate Minimum Wages Directive

Advocate General Emiliou has delivered an inadequate Opinion on the Adequate Minimum Wages Directive 2022/2041/EU. Following a Danish request to annul this Directive, the Advocate General’s Opinion proposes its full annulment based on a historically mistaken and overly extended understanding of the competence exclusion on pay in Art. 153(5) TFEU set against a baffling presentation of Social Europe. In this working paper, we first challenge the AG’s understanding of the pay competence exclusion which led him to recommend full annulment to the Court of Justice. This includes pointing out that, on one hand, the drafting history of Art. 153 TFEU underlines an uncertain, therefore narrow exclusion of pay from EU competence. On the other hand, we place the Opinion in the context of the EU’s earlier labour law and the Court’s case-law to show the many EU legal instruments that regulate pay already in a way which the Advocate General would consider prohibited under Art. 153(5) TFEU, and to emphasise the Court’s insistence on a narrow pay competence exclusion. We then consider the Advocate General’s inadequate depiction of EU social law around the Adequate Minimum Wages Directive which provided the wrong context for his reasoning on the annulment action. The Court of Justice is entirely free not to follow the Opinion in its reasoning, in its knowledge and in its outcome. The pay competence exclusion in Art. 153(5) TFEU should be interpreted narrowly and, therefore, the Adequate Minimum Wages Directive’s legal basis maintained.

Keywords: Minimum Wages; Adequate Minimum Wages Directive; Annulment Action C-19/23; Art. 153 TFEU; Social Europe.

Claire Kilpatrick, Marc Steiert, A little learning is a dangerous thing: AG Emiliou on the Adequate Minimum Wages Directive in "GIORNALE DI DIRITTO DEL LAVORO E DI RELAZIONI INDUSTRIALI " 184/2024, pp 437-449, DOI: 10.3280/GDL2024-184001