Abstract
This paper aims to show the importance of a correct understanding of formally undefined EU labour law norms for the successful European integration of Ukraine. The analysis focuses on legal acts of the European Union. The drawbacks of the inequality of approaches to determining the content of norms with evaluative concepts are highlighted, as is the need to use doctrinal recommendations for the application of evaluative provisions with the purpose of preventing the misconception that evaluative concepts can be interpreted as, and to whom, it pleases. This article thus demonstrates the necessity of the analysis of the case-law of the Court of Justice of the EU, which is rich in the interpretation of evaluative concepts and is considered to help clarify the meaning of many terms of labour law, which, due to their undefined formulation, may cause difficulties in implementing them in the legal system of Ukraine.
1 Introduction
The process of adapting Ukrainian legislation to EU legislation is impeded by the lack of official translations of EU acts and is hampered by a weak understanding of the EU legal system among both legal practitioners and legal scholars. In most cases, this process includes the implementation of provisions of EU directives into current national legislation and represents separate changes in legal regulation. After all, the demand of our European partners for the implementation of EU acts in various fields is often interpreted literally. Namely, the relevant provisions are adopted without a proper mechanism of their action. As a result, a formal, and not effective, introduction of European standards is obtained.1
The process of approximation of the current legislation of Ukraine to the EU legislation suffers from insufficient understanding of the essence of the law of the European Union. In this context, perhaps the biggest omission is the lack of translations, and hence the analysis of judgments of the Court of Justice of the EU (CJEU), which often interprets the formally undefined concepts used in EU legislation in the field of wage labour.2 Difficult access, due to language barriers, to the database of relevant judgments of the CJEU for the general public, both practitioners and theorists of labour law, leads to a superficial vision of the legal regulation of labour relations in the EU and makes it impossible to use the full exclusivity of European Union law.3
A large array of publications by the labour law scholars4 mainly includes analyses of the content of the EU directives that Ukraine has committed itself to implementing under the Association Agreement between Ukraine, the European Union, the European Nuclear Energy Community, and their Member States, dated 30.11.2015. However, the authors5 rarely use the case law of the CJEU to illustrate the legal positions of the application of a particular legal norm, although this body is most conducive to the proper and uniform application of formally undefined EU labour law norms by clarifying and interpreting them. ‘Formally undefined norms of EU labour law’ are norms of labour legislation of the European Union that contain evaluative concepts, general principles or open formulations that require further specification and interpretation during their practical application.
With the aim of showing the importance of a correct understanding of formally undefined EU labour law norms for the successful European integration of Ukraine, some legal acts of the European Union that both contain such rules and consider the case law of the CJEU on their interpretation and application will be analyzed. Special emphasis will be placed on Ukrainian legislation to illustrate national approaches.
2 Materials and methods
The article's sources are the academic research of foreign and domestic scholars, the current and draft labour legislation of Ukraine, legal acts of the European Union, the case-law of the Court of Justice of the EU, and analytical evaluations of practitioners and representatives of society. We can even constitute the existence of separate academic schools and legal doctrines, and the formation of generally recognized standards that determine the content of formally undefined norms. The methodological basis of our research is a number of special research methods. First, the comparison method is used to characterize formally undefined norms in the EU and Ukraine. Second, the technical and legal analysis method is applied to assess Ukrainian legislation's approximation to EU labour standards and evaluate the quality of the draft labour legislation. Third, the dialectical method is widely used, particularly in the analysis of EU labour legislation and the practice of its application to identify and explain the importance of the proper understanding of formally undefined norms of EU law that should be introduced in Ukraine's labour law. Mainly these and other research methods are used in understanding the relationships among the various forms of law.
Formal certainty characterizes the legal regulation of social relations, including labour relations. The peculiarity of legal language is that it is specific and concise. At the same time, it should be noted that even perfect labour legislation is not able to take into account the full diversity of social relations that require legal regulation. Therefore, from an objective point of view, it is logical and natural to have formally undefined legal norms in legal acts.
Formally undefined norms do not contain comprehensive instructions on the conditions of actions, rights and obligations of the subjects or the content of legal sanctions. Nor do these formally undefined norms give law enforcement bodies the right to decide the case, taking into account specific circumstances. That is, in practice, there are cases in which legal consequences can occur only after law enforcement subjects establish the compliance of the significance of the investigated facts of a particular situation with ‘spirit’ of the law, i.e., the legislator's conclusion on the significance of similar standard actions enshrined in legal norms. A study6 of national law interpreting law enforcement practice has shown that the formal vagueness of norms is caused by the presence of evaluative ‘decent and independent working conditions’ and partially evaluative concepts such as ‘public order’. The distinction between these types of formally undefined concepts is currently made only at the theoretical level and is the subject of a separate academic publication. Practitioners identify these new concepts by calling them evaluative concepts.
Despite the fact that the main function of evaluative concepts is the implementation of individual regulation, lawyers note an increase in the number of normative sources that contain such concepts.7 It should first be mentioned that evaluative concepts in the legal regulation of labour relations are objectively necessary. And, under appropriate conditions, they contribute to stability and regulatory strength. There also appears to be a natural link between legal formalism and practical life. Their adoption is inevitable, because in real life there are various phenomena that have legal significance, but cannot be precisely defined. In addition, some researchers single out such features as the ability to give to legal norms an elastic nature, which increases the flexibility of legal regulation of labour relations and the mobility of the practice of the labour law application.8 In the science of labour law in Ukraine, the legal norms that express an abstract opinion about the properties, quality and value of phenomena, actions, persons, etc., which are used in the texts of legal acts in the form of common words or phrases, and due to their logical features are not definitively and finally specified in any normative act either by the norm-makers themselves, or by the subjects authorized by them, are considered to be evaluative. The final specification of such norms is carried out in the process of their application in each case and is determined by objective and subjective factors, resulting in individual regulation of labour relations.9 Domestic researchers of evaluative concepts agree unanimously on the fact that evaluative concepts are cemented in the process of law enforcement. The researchers' content is revealed through deliberate volitional actions of the subject of law enforcement in combination with practical reality10.
In Ukrainian legal discourse, an evaluative concept encapsulated in legal norms, represents an abstract characteristic of societal importance. This relevance can pertain to individuals, groups, or other social entities. These evaluative concepts become concrete and acquire legal implications during the application or execution of the associated legal norms. It is this process that guarantees the state's legal response to all particular instances exhibiting the significance defined by the legal norm.11, 12
Evaluative concepts belong to that category of legal phenomena which are studied in Ukraine and other countries. In the research of European scholars,13 for example, the term ‘thickly evaluative norms’ is applied to denote informal norms of EU law. This term is used for norms whose meaning cannot be understood correctly separately from the actual contexts in which they arise. For example, explaining the benefits to another person on an equal footing and finding out whether there has been discrimination will be difficult without analyzing the context that indicates why it happened in that way.14 Thus, the direct dependence of these norms on the context of application, caused by the excessive ambiguity of their content, increases the importance of the implementation of these norms.
Inequality of approaches to determining the content of norms with evaluative concepts can lead to negative consequences, which are manifested in the misconception that evaluative concepts can be interpreted as, and to whom, it pleases. In fact, this is not always the case. Although the evaluative norms of labour law may be interpreted differently in each specific situation due to the ambiguous wording of their content, the criteria for their specification may be defined at the level of legislation, or they may be developed by case law. In particular, the judicial interpretation of the relevant provisions is perhaps the most effective legal instrument that allows us to achieve the highest level of uniform understanding and application of these rules. With the help of judicial interpretation, a system of legal criteria for their establishment is built up.
In the context of this article, which investigates the content of evaluative concepts, it is primarily a question of clarifying and specifying such in the process of application of law by the CJEU. Thus, the analysis of the case law of the CJEU, which is rich in the interpretation of evaluative concepts, is considered to help clarify the meaning of many terms of labour law, which due to their undefined formulation, may cause difficulties when they are implemented in the legal system of Ukraine.
3 Results and discussion
3.1 EU evaluative norms in the field of employment
The legal regulation of labour relations is aimed primarily at protecting employees from an economically stronger partner – an employer -, because the latter often unilaterally dictates working conditions, which indicates inequality in the balance of power between them.15 Avoidance of abuses due to the lack of such a balance is possible by the help of the provisions of EU labour law, which protects employees from accepting undesirable conditions and sets minimum mandatory labour standards, which constitute an extensive system of labour law norms. At the same time, the external forms of expression of the relevant norms of EU labour law are heterogeneous in their legal nature and scope of application.
At EU level, the legal regulation of labour relations is ensured by EU founding treaties and acts supplementing or amending them; the EU Charter of Fundamental Rights; international agreements concluded by the EU with third countries and international organizations; general principles of EU law; decisions of the CJEU; regulations, directives and decisions; the pressure of social partners; other legal documents that affect the formation and implementation of EU law. The technical legal feature of all categories of the above-mentioned EU legal acts is the use of a significant number of evaluative concepts in their texts. In particular, in a single Article 3 of the Treaty on European Union16 such evaluative concepts as appropriate means of controlling the free movement of persons, sustainable development and social progress, balanced economic growth, a social market economy, and full employment are used. Article 6 of the EU Treaty17 calls for appropriate consideration to be taken of interpretations of the provisions of the EU Charter of Fundamental Rights.
The provisions of the Treaty on the Functioning of the EU,18 which define the directions of employment policy and the rules governing labour relations, also contain a considerable number of evaluative concepts. Examples of those are public order, safety and health (Article 45), close cooperation between national employment services (Article 46), appropriate employment arrangements (Article 46), equal work or work of equal value (Article 157), unfavorable professional career conditions (Article 157), social cohesion (Article 174), effective application of the law (Article 197) and others.19
Many evaluative provisions are included in the text of the EU Charter of Fundamental Rights20. This important document, which is now actively used by European states, also contains a number of evaluative concepts: Article 15 (free to choose, free to agree), Article 23 (certain benefits for the underrepresented sex), Article 25 (decent and independent living), Article 27 (timely receipt of information, appropriate level), Article 28 (appropriate level), Article 31 (healthy, safe and decent working conditions), Article 32 (age-appropriate working conditions; work detrimental to safety, health, physical, mental, moral or social development, or hindering education), Article 34 (sufficient means), Articles 37, 38 (increased level of protection), Article 41 (impartial, fair trial within a reasonable time), Article 47 (effective means, fair and timely consideration of cases, sufficient resources), and Article 52 (restrictions that are necessary and in line with the general objectives).21 The evaluative concepts used in this act relate both directly to labour rights and mechanisms for their protection, which certainly contributes to the real and proper provision of the labour rights of Europeans.
The saturation of the Charter's norms with evaluative concepts allows the Charter to play the role of a universal pan-European legal guarantor of labour human rights and enables EU member states to formulate national labour legislation taking into account national peculiarities in order to maximize the socio-economic security of their citizens.22 The concept of ‘proper working conditions’ in the draft Ukrainian law aligns with the principles outlined in EU law regarding safe and healthy working environments. Article 31 of the Charter of Fundamental Rights of the European Union outlines workers' rights to ‘working conditions which respect his or her health, safety and dignity.’23 Furthermore, the Framework Directive 89/391/EEC requires employers to ensure the health and safety of workers in every aspect related to work.24 Requiring ‘proper working conditions’ in Ukrainian law reflects EU standards for safe, healthy, and dignified workplaces. The concept of ‘favourable conditions’ is broader and more ambiguous than the EU principle of ‘working conditions which respect his or her health, safety and dignity.’ While EU law focuses on minimum health and safety standards, ‘favourable conditions’ implies going beyond basic protections to create an optimally positive work environment. This concept gives discretion to Ukrainian policymakers to define ‘favourable’ based on national priorities and resources. However, alignment with EU principles would entail at minimum meeting standards for health, safety, dignity, and non-discrimination in the workplace. Defining ‘favourable conditions’ may allow Ukraine to go beyond baseline EU worker protections if it elects to do so. Nevertheless, the largest array of evaluative concepts is placed in the texts of acts of secondary law of the European Union. Each regulation and directive on wage labour issues is worth researching independently on the validity of use, content fulfilment, significance and issues of application of evaluative concepts in them, as well as discussing the evaluative norms of the EU Charter of Fundamental Social Rights of Workers. Although it is only a political declaration and has no formal legal force, the CJEU still uses the Charter in its practice to interpret the labour and social norms of EU law, but not as an independent legal basis, only by borrowing the wording of its provisions.25 In addition, it takes into account the legal instruments of the European Commission and the Council, which have been developed in accordance with and on the basis of the Charter.26
The evaluative norms of the EU Charter of Fundamental Social Rights of Workers are related to a wide range of social and labour human rights: from freedom of movement to the rights of disabled people.27 The evaluative provisions of the Charter include the following concepts: restrictions justified by public order, public safety or public health; fair reward; fair wages; sufficient to ensure a decent standard of living; adequate social protection; adequate level of assistance; sufficient funds; proper time; serious consequences; satisfactory conditions; more favorable; fair remuneration; sufficient duration; decent level; sufficient funds; meet the needs.28
Given the large number of evaluative concepts in the legal acts of EU labour law, the scope of this study does not include a comprehensive analysis of each one. In the end, the authors of this publication did not set themselves such a task. The main purpose of this article is to demonstrate the importance of qualitative adaptation of Ukrainian legislation to European labour standards, which, in our opinion, is impossible without studying the evaluative concepts and criteria for their application, which have been developed by case law.
3.2 Judicial interpretation as a way of achieving uniform application
The presence in the basic European legal acts of norms with evaluative concepts serves as an important guarantee of the stability and universality of labour norms established by them, a unification of approaches at the national level, and, finally, preconditions for the free movement of both capital and labour. At the same time, evaluative norms create considerable opportunities for a broad law enforcement view in subjective terms.
The application of the evaluative labour norms of EU law creates a potential pluralism of law enforcement appraisals. National courts at different levels and other law enforcement entities may come to different conclusions when dealing with evaluative concepts and dealing with similar cases. Therefore, there is a need to develop legal guarantees for the proper interpretation and application of the evaluative norms of the EU labour law.
Ensuring the unity of understanding and implementation of the evaluative norms of EU legal acts is carried out by the CJEU, whose law enforcement activities often take the form of law making,29 although the EU founding treaties do not give it such powers. Among all the powers conferred on the CJEU in the context of clarifying labour standards, the most important are reviewing the legality of legislation acts of EU bodies and institutions30 and making preliminary decisions on the interpretation of treaties, as well as the validity and interpretation of acts of the institutes, bodies, services and agencies of the Union.31 In the framework of resolving these categories of cases, the CJEU proposed its own vision of how to understand certain provisions of EU legal acts. In particular, it was thanks to the CJEU that the meaning of the term ‘employee’32 was detailed, the features of ‘employment relations’33,34,35 were characterized, and the interpretation of ‘equality’ and ‘non-discrimination’ in the field of wage labour was consistently expanded.
The CJEU has repeatedly emphasized that differences in the legal regulation of labour relations in the Member States impede the exercise of the freedom of movement for employees.36 Therefore, in the case of Deutsche Lufthansa AG v. Gertraud Kumpan,37 the CJEU highlighted that, in applying national law, the courts of the Member States are obliged to interpret this as fully as possible in the light of the wording and purpose of the relevant EU law. This obligation applies to all legal acts of the Member States, whether adopted before or after the relevant directive, and is designed to ensure the fullest effectiveness of EU law in resolving disputes in litigation.38
Due to case law, many other controversial issues in the field of labour law have been resolved. For example, the on-call time of medical staff has been recognized as working time, and the creation of an objective, reliable and accessible system for calculating the working time worked by an employee on a daily basis, has been recognized by the CJEU as an employer's obligation.39
Today, this case law covers such issues as wages and working hours40, occupational pensions,41 the right to paid annual leave,42 seniority bonuses,43 the rules of crediting the time of fixed-term work to seniority, which gives the right to increase wages,44 benefits regarding access to certain positions, as well as the conditions under which fixed-term employment contracts may be terminated.45 In the case of Williams and Others v British Airways plc,46 the CJEU ruled that the payment of rest and relaxation should guarantee the employee the opportunity to enjoy the same economic conditions during hours of rest and calm as during working hours. Therefore, the non-inclusion of surcharges and allowances in the calculation of leave violates Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organization of working time,47 which stipulates that employees on leave must retain their normal salary without any exceptions. Thus, the CJEU has determined exactly what amount of paid leave should be considered equivalent to the amount of remuneration that an employee receives for work performed.
The exercise of these powers by the Court has had a significant impact on European integration, the balance of power between EU bodies and the establishment of supranational and national competences.48 At the same time, the precedent nature of the decisions of the CJEU not only contributed to the uniform interpretation of the norms of EU law, but has also ensured its most effective application. After all, the rules of understanding of supranational legal provisions developed by the CJEU are final and binding on all judicial bodies of the Member States.49 In other words, the interpretation of the CJEU, which is reflected in its decisions or conclusions, is transformed into a normative one, i.e., it acquires the signs of universal obligation and is subject to implementation by all subjects of European Union law50. Therefore, the binding force of the provisions contained in the judgment of the CJEU is similar to the provisions of EU normative legal acts.51
The impression is created that the interpretation of EU legal acts by the Court of Justice of the EU (CJEU) fully and consistently guarantees the same application of EU law in all member states. However, in practice, this is not always the case, as national courts may interpret CJEU judgments differently. However, not everyone likes this activity of the CJEU. The CJEU is regularly criticized for excessive involvement in the law-making process, fulfilling the role of a norm-maker without the appropriate powers under the founding treaties and shifting the balance between the various branches of government.52 In particular, a considerable part of the defiance by senior national courts to EU law has focused, therefore, on perceived over-extension of these thick evaluative norms, most notably on non-discrimination, citizenship, and fundamental rights. A similar picture emerges with national legislatures in the fields of fundamental rights and citizenship.53 Nevertheless, given the large number of evaluative norms, case law is the most effective tool for achieving equal law enforcement.
3.3 Judicial interpretation as a way of achieving uniform application
Despite the progressive role of the Court of Justice of the European Union (CJEU) in elucidating the evaluative norms of EU labour law, there remains an imperative to establish certain overarching principles for interpreting these norms by other law enforcement entities. Specifically, through the insights garnered from previous research,54 a series of recommendations have been proposed, advocating for specific protocols to be observed during the incorporation of evaluative provisions from EU legal acts into national legislation and their ensuing enforcement. We assert that the interpretation of analogous evaluative concepts embedded within the norms of European and Ukrainian labour law ought to be grounded in shared methodologies.
Primarily, it is essential to consider that the interpretation of identical evaluative concepts found in disparate legal norms is generally analogous if these norms originate from the same branch of law. Hence, it is prudent to elucidate the meaning of such a concept through an analysis of the pertinent provisions in the relevant legal sector. A crucial point to bear in mind is that the interpretation of identical evaluative concepts may vary across different fields of law; thus, it would be inappropriate to interpret the evaluative concept in labour law by equating it to an identical concept from a distinct branch of law. Furthermore, the interpretation of the evaluative term ought to align with societal perceptions and citizens' legal consciousness, thereby the elucidation of its content should be accomplished within the framework of actual societal circumstances and living conditions, employing formally defined and comprehensible terminologies.55
Within the framework of interpreting evaluative concepts, it becomes essential to conduct a comprehensive analysis of legal acts. These are the result of the normative delineation of corresponding evaluative concepts directly enacted by the legislature, another law-making entity, or a body delegated for normative specification. An examination should also extend to legal acts containing formal elucidations of these evaluative concepts, particularly when such concepts lack complete formalization or meaning, or mitigate the formal ambiguity of evaluative norms via the interpretation of evaluative concepts through less abstract, albeit not fully defined, concepts. These pertinent official explications ought to be complemented by informal interpretations contributed by practitioners and scholars. Furthermore, one should not overlook legal acts promulgated as an outcome of the individual specification or elucidation of the social significance conferred by the evaluative concept in a specific instance.
Analyzing the aforementioned legal acts facilitates a more detailed understanding of evaluative concepts, while simultaneously ensuring that law enforcers retain the ability to assess the unique characteristics of each case. Concurrently, the provision of official interpretations curtails potential subjectivism by law enforcement entities. In contrast, unofficial interpretations aid in mitigating errors that may stem from the challenges inherent in accurately ascertaining whether the social significance of scrutinized acts aligns with the social significance encapsulated by the legislator in the evaluative norm.
3.4 Assessing the alignment of Ukrainian labour legislation with European standards
As a background of the above-mentioned concepts, it will be interesting for a foreign reader to get acquainted with the state of use of evaluative concepts in the labour legislation of Ukraine as a basic branch of law, i.e. the system of legal norms that ensure the determining social human right – the right to work. The current Labour Code of Ukraine dated 10.12.71 No. 322–0856 is awaiting a full update. The fact that labour legislation in Ukraine needs to be modified is not denied by anyone, and attempts to improve and modernize the legal regulation of labour relations have become permanent. Therefore, it is not surprising that the current state leaders, on taking power, immediately began to reform the field of employment and wage labour.
Future improvements, formulated and set out in the draft law of Ukraine ‘On Labour’57 (the Draft), caused perhaps the greatest resonance of all previously proposed draft labour codes. In particular, the authors of this draft law orient the participants of labour relations to the most effective satisfaction of their interests through individual contractual regulation. The political leadership is convinced that no one can know better than the parties to the employment contract what they really need for effective and unhindered work. That is why most aspects of cooperation between the employee and the employer should be established by them.
However, those in government who want to radically renew the legal basis of labour relations must remember that their noble intentions to improve the lives of all employees must be in line with Ukraine's international obligations. Given the above, the adoption of the draft law of Ukraine ‘On Labour’58 is considered to only hinder the thorny path of Ukraine to the European Union, because its provisions do not take into account most European labour standards that Ukraine has committed to implement in the national legal system.
In the context of our study, it should be noted that about 50 evaluative concepts in the draft law of Ukraine ‘On Labour’59 have been found. Some of them have been seen in the above-mentioned EU legal acts, such as: ‘proper working conditions’; ‘safe and healthy working conditions’; ‘favourable conditions’; ‘dangerous, harmful, or difficult working conditions’; ‘reasonable time’; and other concepts60. These statements give grounds to talk about the potential possible borrowing and understanding of these evaluative concepts, which are common to both domestic and European legal regulation. However, the critical lack of translations of EU legal acts on wage labour, and the almost complete lack of translations of CJEU rulings, make it difficult for Ukrainian law enforcers to access European legal understanding of labour standards, including those containing evaluative concepts.
It should be recalled that the Association Agreement between Ukraine and the EU covers commitments on a wide range of issues of political, social, economic, legal and other spheres of state functioning and defines strategic guidelines for the implementation of socio-economic reforms in Ukraine and national legislation development. In the social labour sphere, Ukraine has committed itself to bringing its legislation in line with the provisions of 42 EU directives. In general, these directives are grouped into three parts: ‘Anti-discrimination and gender equality’ (6 directives), ‘Labour law’ (7 directives) and ‘Occupational health and safety’ (27 directives).61
The provisions of the Draft on the equality of labour rights of citizens are the closest to the European standards in the field of labour (Article 6).62 In particular, the updates provide for the addition of new categories to the list of discriminatory features. Namely, the Draft prohibits discrimination against a person based on their gender identity and sexual orientation, suspicion or presence of HIV/AIDS, and existence of family responsibilities.63 At the same time, the provisions of Part 3 of the same Article 6 ‘Equality of Labour Rights of Citizens of Ukraine’ need to be significantly improved. First of all, the authors of the draft law introduce a new concept of ‘mobbing’ into Ukrainian legal terminology. The content of Article 6, specifically the segment concerning forms of employee humiliation and harassment, lacks sufficient clarity. This deficiency prevents a decisive interpretation of whether the detailed instances of humiliation and harassment exclusively pertain to mobbing, or whether they also extend to general prejudice in the labour context.64 After all, mobbing is one of the outward manifestations of prejudice in the field of labour, regardless of whether such an attitude and such harassment are associated with any sign. In our opinion, such Ukrainian words as ‘prejudice’, ‘humiliation’, ‘harassment’ and ‘persecution’ are enough for the provisions conceived by the authors of the draft law to be reflected in it without borrowing foreign terms without proper explanation.
The group of EU directives conditionally united under the name ‘Labour legislation’ concerns certain aspects of the legal regulation of individual and collective labour relations. An analysis of their provisions and a subsequent comparison with the text of the Draft shows that only a small number of European labour standards were taken into account in its development. It is also useless to characterize the Draft for compliance with the provisions of the directives of the ‘Occupational Health and Safety’ group, since the reform of legal regulation of labour protection in Ukraine must begin with a change in the philosophy of the occupational safety system, and such a change in the draft law of Ukraine's ‘On Labour’ is not traceable.
Thus, in trying to update labour legislation in the European style, the domestic legislator - for some reason - forgot about its own European integration obligations. At the same time, the latter are a concentrated expression of European labour standards, the need to achieve which is declared by the political leadership. Therefore, it is extremely important at the state level to strengthen the work on the translation of relevant EU legal acts, to promote relevant scientific research and implement their results in practice.
4 Conclusion
In order to enter the pan-European legal space, Ukraine loudly declares the active adaptation of national legislation and legal practice to the standards of European Union law. In this progressive process, the normative and real provision of labour human rights, which are recognized by the Constitution of Ukraine and primary and secondary legislation of the EU as the highest social value, is important. Proper understanding of EU labour law is significant for proper implementation, as by its nature its creates broad opportunities for law enforcement discretion.
Legal acts of the European Union, which enshrine labour rights, are filled with evaluative concepts. Their proper and uniform application at the national level is facilitated by the case law of the CJEU. At the level of legal doctrine, a number of recommendations (specified in this article) have been developed, which should promote true understanding and effective use of evaluative labour standards.
First of all, in order to ensure the implementation of European standards of legal regulation of social rights of employees defined by evaluative norms in national practice, the interpretation and application of these norms at the European and national levels should be unified:
- -the interpretation of the same evaluative concept used in different legal acts issued by one or different law-making entities within one branch of law, as a rule, should be the same;
- -socially significant components provided by the evaluative concept should be offered by the interpreter in accordance with the existing knowledge regarding them in legal theory and practice;
- -the interpretation of the evaluative term should be correlated with its perception and vision by society, corresponding to the legal consciousness of citizens;
- -normative formalization of norms with evaluative concepts should be carried out through the use of formally defined and clear terms;
- -the application of evaluative norms should be carried out taking into account the specific features of each case in order to ensure individual legal regulation within the limits set by law interpretation and law enforcement practice.
Blind copying of the provisions of the directives will not bring our country closer to a high European level of guarantee of rights, but will rather create conditions under which Ukraine will easily be accused of non-fulfilment of obligations under the Association Agreement between Ukraine and the EU. Thus, the effective implementation of European labour standards in Ukrainian legislation is impossible if we literally translate the provisions of EU labour law into legal acts of Ukraine. It is already necessary to actively study the content of the provisions with evaluative norms and to adopt the practice of their application.
The practice of using EU labour law evaluative norms and the proposed guarantees of their proper application should be taken as a basis for updating the labour legislation of Ukraine. To this end, the processes of translating relevant EU legal acts and relevant decisions of the CJEU should be intensified at the state level, and support should be provided for scientific research on EU labour law, which can be used as a basis for further comprehensive research rather than selective improvement of labour legislation. Only the combined implementation of these measures will allow for Ukraine's adoption of the European understanding of labour evaluative norms and ensure their application on the basis of the European model.
Disclosure
The views expressed in this study are those of the authors, and do not necessarily reflect the views of the Ukraine's State Authorities. All errors are our own.
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