Court of European Union as an actor of implementation of legal policy (cases of migration and labor policy)

The second stage of policy cycle is a process of policy options formulation, which are aimed on the resolutions of the problems defined before. One of the best examples, where the role of the Court in policy formulation can be observed, is the set of cases concerning the status of the Parliament (case Roquette v. Council (Isoglucose), case Parliament v. Council; case Les Verts, case Parliament v. Council (Comitology)). Talking precisely about migration sphere, it is the case Halaf, where the Court of Justice (with a reference on the case NS/ME) presented to the national courts the possibility of choice in two questions. The fortune of Mr Halaf, an Iraqi national, reminds the story of NS. The applicant made a request for asylum in Bulgaria, when Darzhavna agentsia za bezhantsite pri Ministerskia savet (State Agency for Refugees at the Council of Ministers, `the DAB') using the Eurodac system revealed that Mr Halaf has already asked for a refugee status in the Hellenic Republic. Predictably, as Greece was considered a responsible state for the granting international protection, Bulgaria decided to organize a transfer of the applicant there. Mr Halaf was disagreed with that decision and initiated the annulment procedure pointing out that UNHCR called the EU countries not to return the asylum seekers to the Hellenic Republic. The request for preliminary ruling from the Administrative Court of Sofia contained several questions the most significant of which is the interpretation of the article 3(2) of the Regulation 343/2003 (Dublin II Regulation) and conditions of Member States' discretion. The question sounds similar to the one represented in the NS/ME case but it has another standpoint. Due to the response of the Court (supported by the Commission), the article 3(2) of the Regulation allowed the national authorities to decide whether they would like to regard the application for political, practical or humanitarian or any other reasons even if they were not a responsible Member State by the terms of the Regulation or not. It had to be their sovereign independent decision. By these discretion frames the ECJ gave the Member States a choice on what direction they could lead the migration policy and the refugee crisis within national borders. The Preamble of the Geneva Convention contemplates the status of UNHCR as a figure the cooperation with whom (for States) is a main key to the effective coordinated work of the refugees' protection system. The function of the UNHCR office as well is to facilitate the exercise of the States' duty on controlling the fulfillment of the Convention's provisions. UNHCR is one of the leading actors in the political arena of the European Refugee crisis with a wide range of influence means. Nevertheless, the Court of Justice regarded the address to UNHCR on the matter of determining a responsible national state under the Dublin Regulation as a direct intervention into the special European legal order. In order to alleviate prescriptions, the Court leaves for Member states a loophole: to interact with the UN body when it seems appropriate. In that way, the Court has offered the Member States policy alternatives with the liberty to dispose of them and soft frames of self-constraint. court judicial treaty order

The Directive 2003/86 is not a part of CEAS, but it is an important legislative document that deals with the questions of family reunification, somehow an inevitable consequence of the sharp migration crisis. An over-turn decision on this matter is a case Chakroun where the Court of Justice again played a role of the policy creator. Mrs Chakroun, a wife of Mr Chakroun for 27 years, has received a refuse of her application for a residence permit in the Netherlands though Mr Chakroun held the appropriate documents for that (a residence permit for indefinite period). The request was refused on the ground that a sponsor (Mr Chakroun) did not have a sufficient amount of resources for the case - 120% of the minimum wage that was required to cover the general and essential living costs. By the way, this sum was the highest of all the other Members in the EU. It was also revealed that the Netherlands law made a distinction between the `family reunification' and `family formation' that influenced the amount of money paid. Analyzing the observations made by the parties, the Court has defined the main principles on the questions of family reunification that Member States had to follow strictly. Article 7(1)(c) of the Directive sets up the rules that the sponsor must follow in order to realixe his right on the family reunification: stable and regular resources which are sufficient to maintain himself and the members of his family without recourse to the social assistance system of the Member State. However, the disretion of the Member States on the question must be interpreted strictly. Exactly saying, “the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof”. Thus, the Court put the protection of family rights as fundamental into priority. The examination of family reunification questions must be provided on the case-by-case base. The concept of `social assistance system of the Member State' is defined by the Court of Justice the unified understanding of which has become the obligation of all states in the EU. In addition, the Court announced that the time of mariage of spouses is not a criteria for distinction. The national law could not contain two notions 'family reunification' and 'family formulation' in interpretation of the Directive on the family reunification. It is the competence of the EU, and if the European legislation contains such a gap, it is a task of the Court of Justice to create a possible norm of regulaiton.

Influenced by case-law practices and approaches developed by two courts the European protection system faced with a numerous changes, especially concerning the formation of Dublin III Regulation adopted in 2013. The Dublin norms after implementation of the new Regulation can be applied to the non-EU countries such as Switzerland, Iceland, Norway, Liechtenstein. It was expected that the system would become more effective and legally safe. One of the aims was to strengthen the family ties between asylums, paying particular attention to vulnerable social groups such as underaged, minorities and other persons. However, as the time, experience and case-law of the Courts (the ECJ and EctHR) shows, the EU still has to address the same things as it was before.

The reaction of ECtHR was the first. The case Tarakhel v. Switzerland became a turning point. Afghan family consisted of 8 people (2 adults and 5 children) made a complaint about the Italian reception system claiming that identification procedure is slow, there is no capacity of the reception facilities (no places for all asylum applicants), living conditions are terrible and inadmissible. After examining the case the Court had to follow the mechanism stated in the MSS case. The Court mentioned that the only way to provide an adequate protection for asylum seekers is to make out a “thorough and individualized examination of the situation of the person concerned” as the Dublin regulation does not work. What is more, the ECtHR several times underlined the specific necessity in children rights protection in view of their specific needs and vulnerability. The Court of Justice also did not stand apart. In the case K&A the question of family reunification process was again raised. K's (Azerbaijani national) and A's (Nigerian national, had three children) applications for the temporary residence permits in the context of family reunification (the sponsors had all necessary documents) were rejected on the reason of not passing the basic civic integration examination to assess knowledge of the Dutch language and of Netherlands society before authorising entry. The applicants had the special excusatory grounds on that case: K presented the medical certificate and A proved that she had some psychological problems. However, the Netherlands authority did not regard these consequences as justifying pointing out that the Court of Justice has never defined the concept of `integration measures' while the Commission gave two controversial opinions in different cases. This statement of one of the Member States revealed the importance and obligatoriness of measures the Court built in its preliminary rulings. The answer of the Court was not in favor of the Member State. Due to the statements of the Directive 2003/86, article 7(2) the countires can define the integration measures in accordance with the national law. The Court established the strict rules on that issue in accordance with the proportionality principle: the integration measure could be regarded as legitinate only if they were aimed to facilitate the mentioned process and not to filter the applicants. However, the fees of the total amount 460 euros for 1 attempt of taking the exam could make the objective family reunification impossible or too difficult that was in contradiction with the Directive itself.

It seems that Member States create for themselves a framework they did not want to follow when the deal comes closer to their borders. The Dublin Regulation is too costly, complex and coercive without features of sustainability and operability, not able to regulate the giant flow from the Mediterranean Sea trying to reach the borders of safe but not so welcoming Europe. Having looked only at the top of the iceberg in the case-law practice of the Courts but it has to be admitted that without mechanisms, criteria and procedures established by the Judicial bodies using soft power the Dublin system cannot be recognized as an alive structure that could be applied to the refugee crisis as a legal framework. The participation of European Court of Justice as a guard on the boarder of justice has become inevitable. Case-law practices, soft law and soft power of judicial instances became an integrated part of Dublin system. Without the monitoring and indirect control by ECJ human rights of refugees could be unrecognized by States. Acting as decision-maker the Court influenced the development direction of the refugee regulation, closed the gaps in the legislation, made the system more stable working as a unified mechanism based on legal principles and norms recognized not only in the EU law, but also on a higher level, which is the international law.

3.2 Case-law practices of the Court of Justice in the social sphere: influence and contributions

From day-to-day the humanity is witnessing the complication of the social development processes and increase in the amount of social problems. The structure of the social order has come the way from being the elementary form to the system of the highest organization stage. Unpredictably, there is an appearance of the social arenas, frontier social fields that have emerged on the reasons of complex phenomena existence like technology breakthrough, media or the financial and migration crisis (Beck, Giddens, Lash, 1994). Globalization is moving the modern world ahead without a guarantee of stability and success. One of the signs of this instability is the European refugee crisis that seems to be international one. Free movement of goods, services, persons and capital gave birth to social transformations and creation of new social networks. However, migration processes is not a unique factor and could not be studied in isolation without a reference to the economic, social, cultural, political ties. The social sphere itself is an inclusive term. It implies the economic and technical resources, infrastructure, social security, public services, labour questions as well Interview with a rector of the Moscow State Social University.. This sphere includes a diversity of problems, the current of which, for instance, is a question of European identity (Risse, 2014). In this part of the research we will concentrate on the labour policy of the European Union and the role of the Court of Justice in it. The scheme of analysis will be a little bit different form the previous one, as the story of labour policy formation in the Community under the influence of the Court is longer than the migration one.

Progressive case-law development in the European legal field shows that the European Court of Justice contributes a lot to create a space of every day life with guaranteed protection of human rights and freedoms for all the citizens of the EU. One of the Court's priority tasks is to defend 4 basic freedoms that are in the base of the EU establishment: free movement of goods, services, persons and capital. Free movement of services entails the freedom to provide or receive any cross-border economic activity, which is exercised on a temporary basis in the Member State of destination (or host Member State) and which is not governed by the provisions relating to the free movement of goods, persons or capital (Art. 56-67 TFEU). The internal mechanism of the Court litigation is similar to the policy-making cycle with 4 stages mentioned above: agenda-setting, formulation of the solution, adoption, rule enforcement. In order to observe the process of institutional change (approaches sociological institutionalism, rational-choice institutionalism, historical institutionalism) within the judicial procedure (Mahoney & Thelen, 2010), we analyze the case C 42/02 Lindman against Finland where fiscal legislation on games of chance is for the first time being assessed in the context of the fundamental freedoms. On the 15 February 2002 the Court Registry received the reference for preliminary ruling made by judgment of the Administrative Court of Finland on the question concerned the citizen Diana Lindman: Does Article 49 (now it is the article 56 TFEU) of the Treaty establishing the European Communities preclude a Member State from applying rules under which lottery winnings from lotteries held in other Member States are included in the taxable income of the winner on assessment to income tax, whereas lottery winnings referred to in Article 7(1) and the investment directed at from lotteries held in the Member State in question are exempt it refers, in the present case, to investment which is from tax. This act of the Finland Court has become a beginning of the ECJ judicial procedure, it revealed the lack of the Treaty article unified understanding and necessity of judicial interpretation (stage of agenda setting). In accordance with the facts of the case: in 1998 Diana Lindman, resident of Finland, won 1 000 000 Swedish crowns in a lottery that was arranged by a Swedish company in Sweden. The authority of Finland regarded this amount of money as a taxable earned income. Lindman claimed for the rectification of assessment. In accordance with the procedure during the accepted period the Court received the written observations submitted on behalf of Lindman, the Finnish Government, the Belgian Government, the Danish Government, the Norwegian Government, The European Commission, authority of the European Free Trade Association (actors in the decision-making process); the Report for the Hearing and the written Opinion of the Advocate General. This is the second step in the procedure - policy formulation by taking into account the arguments of all the authorized actors. Lindman claimed that the Finnish legislation is discriminatory as Finnish `lottery taxation' are exempt from the personal income taxation while earnings from lotteries organized abroad are fully taxable (Isenbaert, 2010). She argued that this differentiation in the treatment is a direct abuse of the free movement of services. Due to Lindman's opinion the taxes should be cancelled or at least the money should be taxed as capital income (on the reason of the lower rate of tax). The Finnish, Belgian, Danish and Norwegian Governments took a joint stand and chose a common behavior strategy that was rational in those circumstances as the legislation of the countries on the issue of direct tax regulation contains the same regulations. The States regarded the taxation regime in Finland (under which the winnings in the lotteries held in other Member States should be taxed while winnings on the territory of the national state not) to be compatible with the values of the freedom of serves in the legal framework of the Treaty article. In addition, they made a reference to the Court's decisions as the approval of their argumentation Opinion of the Advocate General Stix-Hackl delivered on 10 April 2003. Retrieved from InfoCuria - Case-law of the Court of Justice. In contrast to the presented freedom they claim that the Finnish legislation is aimed to defense the public interest as the regulating games of chance is under the large discretion of the Member States. To reinforce the position, the Government of Finland adds that the rules on taxation are, on contrary, equitable. The reason why winnings of national lotteries are not taxed is because instead of them, their organizer is taxed. In the case of the foreign lottery organizer there is no chance but to tax the winners, otherwise, they receive the advantage of non-payment. The Belgian Government points out that the taxation of winnings in lotteries abroad must be regarded as a corrective element aimed to stabilize the society. If such kind of winnings are not taxed, this situation will lead to massive incentive of the nationals to participate in foreign lotteries resulted in the lost of the government control in this sphere and vulnerable social circumstances. As an additional remark, Finnish lotteries are supervised by the authorized bodies while foreign lotteries can be damaging. The Danish Government underlines additional fiscal measures regulate and restrict the organization and marketing of games of chance in order to protect the public health interests. The Government of Netherlands notifies that the main aim of the Finnish legislation is just to levy the taxes in a right manner while the Norwegian authority maintains that taxes on the results of the win in a lottery differ from the national helps combat money-laundering.

In contrast, the Commission and the authority of EFTA have an opinion of existence of a discriminative motivation in the legislative acts of Finland that cannot be justified for public interest, public health or public order. As for the Commission, its main executive role is to promote the general interest of the European Union and to be a key point of contact between the European Union and Member States (Craig & Burca, 2011). The Commission is a political forth with focus on integration process and unification of the EU law with its primacy and direct effect. In the Commission's view in the Lindman case there are no reasons to make any exceptions to the regarded Article 46. The Finnish regulations are not designed to protect the public interest or to avoid the dangers of gambling instead they have become the source of the discrimination. The Commission mentions that the act of the Finland Government can provoke the double taxation on one taxation base that is prohibited. The Commission reminds the Member States that the principle of fiscal neutrality “precludes a Member State from levying value added tax on transactions linked to unauthorised games of chance if the equivalent licensed activities are exempt from taxation” Opinion of the Advocate General Stix-Hackl delivered on 10 April 2003. Retrieved from InfoCuria - Case-law of the Court of Justice. The representatives of EFTA mark out the signs of unequal fiscal treatment in the legal acts of Finland. The discussed tax is a limitation on the freedom to provide services of organizers of games of chance. In parallel, EFTA finds paradoxical the argument of Member States about the danger impact of games of chance on the moral, religious, cultural nature of the society whereas there are several national lotteries in Finland.

In the opinion the Advocate General presents the results of the careful research on the case. He explores the case from different sides, disproves the arguments of the Member States and presents the arguments that are near on their content to the arguments of the Commission and EFTA authority. Moreover, the General Advocate checks all the references the national governments make in the written observations to the case-law practices. This way by describing the differences between the present case and mentioned by other actors the Advocate General rejects the possibility to use the previous judicial conclusions. The role of the Advocate General is remarkable: he assists the work of the judicial Chamber in promoting the reasonable submissions on the case (Art. 253 TFEU). In total, the Opinions of the Advocate General help to preserve the unity of the Case law of the European Union and serve as a tool of the interpretation of the laconic Court decisions.

After observation of the presented argumentation the Court goes to the stage of the final decision adoption. The main value the Court defenses in this case is the free movement of services and absence of the discrimination on any kind of base. The ECJ gives an interpretation of the Article 49 that prohibits not only the discrimination of the service organizations in other Member States but any restriction to freedom to provide services even applied to the national service enterprises. The attempts of justification of the Finnish legislation made by the Finnish and Norwegian governments (protection of public interest, prevention of fraud, ensuring legal certainty, need to combat the damaging consequences of the gambling addiction such as suicide and divorces) were inefficient. The Court firmly declares justification must be accompanied by the analysis of the appropriateness and proportionality of the restrictive measure adopted by that State. In the case of Lindman, the Finland State was unfounded and did not present any statistical information or evidence that enables the Court to make conclusions to the level of risks connected to playing games of chance, to the existence of a direct causality between the risks and participation by nationals of the Member State concerned in lotteries organized in other Member States. Thus, the final resolution of the Court was the following: the Finnish Tax Treatment constitutes a discriminative restriction that cannot be justified by any grounds; it is contrary to the free movement of services in total, the Finnish legislation should be changed (Lang, 2003). By this decision, the European Court of Justice created a general criterion on evaluation of the gambling restrictions made by the Member States. The Court stated that the justification of the gambling restrictions could be possible only on the base of substantiated public interest considerations. However, the jurisprudence of gambling remained problematic as the Court did not define the extent of restrictions as well as the degree to which such kind of restrictions can be tolerated by the Courts later on (Littler, 2011). The preliminary ruling on the Lindman case is conjunctive to the Finnish national Court and to the legislative bodies of Finland as well as it stimulates the last to make changes in the legislation complied with the EU law. This consequence of the decision has a direct effect on the institutions of Finland as a Member State of the EU. However, the national legislation authorities preserve the freedom of discretion how to implement the changes into the institutional system of the country (sphere of law, taxation system). For instance, the authority of the state can exempt the winnings in the foreign lotteries from income tax or treat both kinds of winnings as taxable earned income or investment income (Lang, 2003). The decision of the Court has become resonant to the legal orders of the other Member States. As for the observations, made by Norway (which is not part of the EU) and the authority of EFTA, we can mention the following. The provisions of the article 56 (49) TFEU correspond with the article 36 of the Agreement on the European Economic Area (1994), which brings together the Member States of the EU and EFTA countries (Iceland, Liechtenstein, Norway) into single market based on the 4 freedoms pillars: free movement of goods, services, capital and persons. Norwegian legislation contains the same regulations as the Finnish one, against existence of which the EFTA authority expressed an unambiguous conclusion. The European Court of Justice admitted the arguments of the representatives of EFTA. This fact served as a motivated reason for Norwegian government to change its own legislation in order not to be penalized by the EFTA Court in the base of not fulfilling the agreement. It should be mentioned that the Norwegian legislation should not be brought in correspondence with the European legal order; the ECJ does not have a power to influence the Norwegian legal order and stimulate the institutional changes in it. However, the interconnection between EEA and the Treaties, ECJ and EFTA Courts, the decision-making procedure of the European Court of Justice with a possibility of different actors participation led to the observed results. The stage of policy implementation received a wider area of spreading.

The history of the labor law evolution takes the roots from the building of the European Community. The project of the `United Europe', at first, was purely economic with a main target of the common market creation within the European borders. Economic law still occupies one of the dominant positions, at the same time the European integration made a total correction of the plans of the Fathers of the European Community. Nowadays, the European labor law is the central part of the social, political and, by the way, economical spheres of the EU. This over-turn has become possible due to the EU institutions trying to construct a dialog on the emerged problems in the social sphere. Labor is a base of the successful promotion of fundamental freedoms such as free movement of goods, services and capital. However, in the core of the labour is a human being with fundamental human rights obliged to be protected from the side of the government. Thus, we got the conflict between the individual rights of workers and public interest in the receiving of permanent gain, dichotomy between the economic and social points needed to be balanced for a harmonious development of the EU (Witte, 2013, Chapter 4). Diversity of actors' interests and strategies has influenced the process of labour regulation and contest of the EU legal acts as a consequence. Throughout more than half a century the EU have witnessed the dynamic struggle between the EU institutions, the Member States, socio-economic groups (trade unions, organizations of employers) on the issue of the labour and social policy formulation and implementation (Bercusson, 2009). The results of this competition can be observed on the background of the Treaties' change. In the period of the EU creation (Treaty of Paris, Treaty of Rome) the idea of social policy has been practically ignored, so there was an almost total absence of the labour regular acts. Only in the mid-1980s the interaction between the actors has led to the Community Charter of the Fundamental Social Rights of Workers (1989). This act was followed by the Protocol and Agreement on Social Policy in the Maastricht Treaty in 1991. 1997 the Treaty of Amsterdam also included the new title VIa on the employment issue which presented the OMC (open method of coordination) and some statements of future European employment strategy (the Treaty of Amsterdam). The White Paper of the Commission «Growth, competiveness, employment. The challenges and ways forward into the 21st century» (1993) marked out that employment is a necessary element of the triangle (other two elements are growth and competiveness) in the sustainable development model and made a call for labour reforms, social equality, development of education. In the Essen Strategy (1994) the European Council also put the questions of the employment into the agenda list of the EU as the most critical. In 2000 as a final step the Nice Treaty and the European institutions (the Commission, the European Council and the Parliament) presented the Charter of Fundamental Rights of the European Union, that fixed the socio-economic rights on one level with the civil and political ones. The official Constitutional status was received by the Charter only in the Lisbon Treaty (2009) whereas the Court of Justice made references to its provisions long before that. The statements of this document are of exclusive value for the labour law development in the European Union. Thus, the Charter contains the titles III and IV which are correspondently devoted to the Equality and Solidarity norms. The Charter proclaims non-discrimination principle (article 21), freedom of association (article 12), freedom to choose an occupation (article 15), equality between women and men (article 23), appropriate working conditions (article 31) social security and social assistance (article 34) in parallel with health care and environmental protection (article 35, 37) and many other norms that stay on the border of the human labor. De facto, the tendency of the radical change of the actors' behavior in the EU towards the common social dialog can be observed since the 1980s. The Commission in tandem with the Parliament and support of socio-economic groups mobilized the efforts and initialized the process of partner networking within and beyond Community for the pragmatic reasons. The White Paper of the Commission presented above gave birth to the European Social Model (ESM), the controversial concept with multiple meanings (Rogowski, 2008). In accordance with this concept the European Union is not just a free market economy organization but also a welfare polity with a policy-making sensible to the employment and social issues with an accent on social protection and security. The main functional focus of ESM and its actors is to adopt the norms of social protection system at the European Union level and to provide the common understanding of this policy between the Member States, the EU institutions and social partners (Rogowski, 2008). Thus, the European Social Model has a diversity of layers, multi-level governance scheme of regulation and consists of several subsystems. In the heart of ESM is the European Employment Strategy (EES) and OMC. The main aim of EES is to fight unemployment by creating more job places within EU. Nowadays this strategy is integrated in the Europe 2020 Strategy and implies 4 steps: Employment guidelines developed by the Commission and adopted by the European Council, the Joint employment report, National Reform Programs that are under control of the Commission and Country reports again worked out by the Commission. By the way, the first Employment Guidelines that has become the base of the whole EES system was introduced in 1997 at the meeting of the European Council in Luxembourg. The Guidelines defined 4 priority vectors: equal opportunities, discrimination on the issue of age, entrepreneurship and the skills of workers. Twenty years after these questions are still central issues in the labour policy. Nevertheless, the co-ordination method has played a decisive role in the integration of the labour policy. OMC is a new form of governance, soft regulatory technique that participates in the authority transfer between the powerful European actors (Sciarra, Davies & Freedland, 2004, p. 12). This method was constructed to be applied in the policy areas of the EU where the Members States have a full competence or share it with the EU bodies. The working mechanism of the method is quite simple: the common goal and special indicators established by the EU institutions, multiple kind of guidelines allow the Member States to learn from each other borrowing the best practices. As a new experimental method OMC has been used in many spheres, the most successful attempts were made in the labour sphere and EU enlargement processes. However, OMC is not a universal means of cooperation, which can be applied at any case due to its `power' characteristics. It is not an enforcement mechanism with a strong binding effect on the institutions. Due to its softness, the area of its implementation is narrow, for instance, migration sphere (competence of the EU and Member States) could not be regulated by OMC.

As an inclusive notion the European Labour law includes different norms and institutions, which can be organized into two large subfields: European collective labour law and European individual employment law (Bercusson, 2009, Chapters 9-10). In this part of the research we will talk mostly about the second subfield, employment law, as its subject is concentrated on the human being and his fundamental rights in the sphere of labour. Technically the employment law is a complex sphere. The area of questions it deals with is quite wide and diverse from the maternity leave to the work relations with foreign elements (third-country nationals) (Sмwia?tkowski, 2012). Legal stability in the sphere is also under threat as the European labour law experiences the pressure from the international law, from the one side, and the national legal orders of the Member States from another. In addition, the soft law and flexible regulation measures do not serve a guarantee of final dispute resolution between adversarial actors in the sphere. Moreover, there is a significance literature gap in the EU legal studies. The dominant amount of the research works are devoted to the economic aspects of the European Union existence, for instance the internal market law and the principle of free movement of goods, services, capital and persons as a base of its establishment (Bercusson, 2009). The questions of social security and protection, human rights of workers and status of trade unions are ignored. This consequence leads to the lack of theories and concepts that can be the base of the future legal acts and working programs. Unevoidably, the multiple economic theories influences the future development of the field (for instance, neoclassical and heterodox ideas). Against this background, taking into consideration all the conditions described above, the Court of Justice has become one of the political figures whose actions have defined the future of the labour law building from case-to-case.

The role of the fundamental human rights and freedoms in the European Union is increasing nowadays. Non-economic vision of the Union, heading to the socialization of the economic processes, building of the permanent social dialog have strengthen the positions of the EU as a liberal democratic polity with a recognized system of human rights protection. However, 50 years ago the pattern of the relations within the Community was of another character. The struggle for the equal opportunities and non-discrimination, the ideas of integration have emphasized a new tendency in the EU labour law. The twin principles of non-discrimination and equality has got into the center of the legislative actors' attention, but their forces were limited by the formal frames. The Parliament, from its side, was one of the most active supporters of the changes as its members were elected from the ordinary persons that probably have faced with the impingements of their positions before. The legislative authority of the Parliament was restricted by the Treaty provisions though. The Commission's activity as a supporter of the equal opportunities for everyone was bounded by the soft law recommendations. The position of the Council was defined by the Member States for which the idea of equal opportunities was extraneous: that time only France guaranteed the equal pay for the workers of male and female sex (Hervey & O'Keeffe, 1996). The case law practices of the Court of Justice were the factor that defined the trends in the legislation development, practically the Court played a role of the agenda-setter. The Charter of the Fundamental Human Rights (the primary legislation) appeared only in 2000, the article 2 TEU in 2009, whereas the secondary legislation was chaotic and uncoordinated (Directive 2000/43/EC, Directive 2000/78/EC, Directive 97/81/EC, Directive 1999/70/EC, Directive 2003/109/EC, Directive 2004/113/EC, Directive 79/7/EC). There are still a lot of legislative gaps that do not allow proclaiming the protection against discrimination universal. Moreover, the equality Directives (especially Directive 2000/78/EC) are of the framework character, some of the significant concepts not defined on the level of the EU are interpreted in the national legal orders destabilizing the whole European order. As a consequence, mostly on the earliest stages, the Court of Justice using the principles of supremacy and direct effect as a base have impacted the development of the national equality law for threshing-out with the EU law. Through the jurisprudence the Court regulated the labour sphere (where other institutions were passive) in order to initiate the creation of the new legislation. The Court interpreted the provisions of the Treaties using the technique of `default clause' that could be applied in the cases of the loopholes in the legislation (Hatzopoulos, 2013). Due to these reasons (lack of written norms, fragmentation of the actors' actions) the architecture of the equality norms within the labour law is multi-level. The first layer is a general principle of equality (no connection with the discrimination grounds), the second one are multiple principles of equality on the specific discrimination grounds (age, sex, race, nationality, etc.). This idea is presented in Tobler, C. (2013). The Prohibition of Discrimination in the Union's Layred System of Equality Law: From Early Staff Cases to the MAngold Approach. In A. Rosas, E. Levits, & Y. Bot (Eds.), The Court of Justice and the construction of Europe: Analyses and perspectives on sixty years of case-law = La Cour de Justice et la construction de l'Europe: Analyses et perspectives de soixante ans de jurisprudence (pp. 183-203). The Hague: T.M.C. Asser Press. However, the question of the sex discrimination was taken pride of place. The years 1980s and 1990s have become a boom in the promotion of the gender equality in the labour law within the EU. Litigation processes in the Court of Justice pursued the object of checking the national law on its compatibility with the European supranational legal order (Chalmers, Davies & Monti, 2014, p. 583). In the set of cases devoted to the social protection of women rights in the workplace, Defrenne cases (especially case 43-75) are the most significant. The fact base of these cases is practically identical as the applicant was the same woman, Ms Gabrielle Defrenne. The air hostess in the company Sociйtй anonyme belge de navigation aйrienne Sabena (registered in Belgium) announced that execution of the same duties as the male members of the crew (cabin stewards) had to be compensated on the equality principle in accordance with the article 119 EEC Treaty. From its side the Labour Court of Brussels asked whether the article 119 EEC Treaty had a direct bounding effect on the Member States even if the norm was not implemented into the national legal order yet due to the transition period rule. The Court of Justice confirmed that the norm of equality is both - economic and social. The principle of the equal pay aimed to the harmonization of the working conditions is recognized by the ECJ as the foundation of the Community; Members States are obliged to take this principle into consideration. The article's reference to the Member States could not prevent the Court from the direct application of the principle. To the statement of the United Kingdom and Ireland on the possible financial problems in economic life of the Union the Court countered that for the European Union the social progress is one of the main objectives. These three judicial decisions in the framework of the preliminary reference procedure is the illustration of the Court's role as the agenda-setter and creator of the future policy vector development. The Court's conclusions in some of the cases in this sphere were embodied in the secondary legislation acts. The supremacy of the EU law was again demonstrated in the case Macarthys Ltd v Smith (1980). Mrs Wendy Smith was employed in the company Macarthys Limited instead of the man who occupied the post before. However, the salary of Mrs Smith was equal to 50 pounds per week while the man had received 60. This employment condition was regarded by the woman as a fact of discrimination (in accordance with the article 119 EEC Treaty and the Equal Pay Act 1970) and caused her to start the litigation process. The Court of Appeal sent the request to the ECJ that answered the following. The Court of Justice confirmed its position expressed in the Defrenne case and again pointed to the Member States that the equality principle (article 119 EEC Treaty) covered all forms of direct and indirect discrimination even without any additional implementing measures. The Court extended the understanding of the concept `equal pay' and clarified that the woman had a right to receive the salary of the same size as a `hypothetical male worker'. The concept of `pay' itself is one of the fundamental in the labour law prima facie needed to be defined in the EU level for the common stability of the field. In that case Macarthys the Court formulated the decision of the problem and adopted it (the meaning of the concept `pay'). Throughout the years the Court of Justice expanded the notion of `pay' defined in the article 119 EEC Treaty (now article 157 TFEU) in the essence of the social sphere to mark out the frames of the term. Thus, the notion `pay' (Ellis & Watson, 2012, Chapter 5) includes overtime pay, bonuses from employer, termination payment, maternity benefit, Christmas bonus, statutory sick pay, pay in pension schemes, etc. In the case Test-Achats (2011) the Court provided the examination of the secondary legislation on its correspondence with the EU special legal order. Under check was the article 5(2) of the Directive 2004/113/EC (2004) implementing the principle of equal treatment between men and women in the access to and supply of goods and services. That article regarded the use of the `sex' factor as a criteria in the assessment of insurance risks. While the article 5 (1) of the Directive defined that the new contracts (after December 2007) could not include the `sex' as a base for differences in the individuals' premiums and benefits in the sphere of insurance and connected financial services, the article 5 (2) has left a back door for the Member States that could apply the named factor if it was determining one in the assessment of the risks The article 5 (2) was build under the lobbying of the Car insurance industry. See Chalmers, D., Davies, G. T., & Monti, G. (2014). European Union law: Cases and materials (3rd ed.). Cambridge, UK: Cambridge University Press. . The consumer association Test-Achats questioned the legality of that provision. Guided by the article 21 and 23 of the Charter, the purpose of the Directive the Court announced the article 5(2) of the Directive to be invalid from 21 December 2012. The Court claimed that the derogation established by the article is against the principle of equal treatment. This decision was a resonant one. In order to guarantee the fundamental right of an individual and ensure the compliance of the national law in the insurance sphere with the Court's judgment in the case Test-Achats the Commission worked out the Guidelines on the application of Council Directive 2004/113/EC to insurance, in the light of the judgment of the Court of Justice of the European Union in Case C-236/09 (Test-Achats). The Member States applied the decision of the Court of Justice; the role of the policy regulator (the 3rd cycle) was successfully fulfilled by the institution. Throughout the period of the equality norms establishment there was a tension between the economic and social rationalities on that question. From the one side, discrimination is harmful for the economic processes in the EU as it deprived the market of human sources being an obstacle for the competitiveness and progress. That point of view allowed reconciling Member States with the need to develop the European Social Dialog. From the other side, discrimination could be a major barrier on the way to the European integration and building of the unified human rights protection system. In the case Deutsche Telekom AG v Lilli Schrцder (2000) the Court has put a point in that question. The facts of the case are the following: Mrs Schrцder complianed on the actions of the Deutsche Telekom that excluded her, as a part-time worker, from the program of the supplementary pension indefiance of the article 119 EEC Treaty. The applicant supposed that the reason was in the relationship to the female sex as 95% of the part-time workers in the company were women. The Court of Justice ruled that if the action of exclusion was not justified on the objective base (not connected with the sex factor) it could be recognized as an action of discrimination. As a final conclusion the Court stated that the social aim within the meaning of the article 119 EEC Treaty is a priority to the economic one. The fundamental right to get the equal treatment despite the sex has become one of the most significant in the labour law of the European Union. By this decision the Court have assigned the most efficient development direction taking into account the external and internal circumstances. The labour policy was aimed at the most rational way. The role of the Court on the stage of policy adoption was crucial. However, the equality sphere is not bounded by the sex discrimination cases. In the case Mangold (2005) considered to be one of the key constitutional cases the ECJ has raised the question of the discrimination on the issue of age and the direct impact of the general principles of equality on the whole system of the European Union. Mangold is one of the most debated judicial decisions in the European case-law due to the specific approach used by the Court (Tobler, 2013). De facto the Court of Justice moved beyond the frames of the specific Directive 2000/78 (area of implementation is employment and occupation) and generalize the meaning of the principle prohibiting the discrimination on the base of age. Due to the Court, the gap in the equality legislation could be supplemented only by the presented principle of common obligation. Earlier the supremacy of the primary law could be possible only in the case of the absence of the secondary legislation. Thus, as a result, the Member States have become obliged not to allow discrimination on the age criteria. The Court's actions have shaken the political balance between Member States and EU (Kilpatrick, 2010) towards supranationalism as the labor sphere considered to be the shared competence where states could enjoy a large share of discretion. The circumstances of the cases were the following. Mr Mangold (56 years old) concluded the contract with Mr Helm, who was a lawyer. It was a fixed-time contract with a particular duration as Mr Mangold in accordance with national legislation was considered to be an older worker (52 years and more). From the side of young workers there were no such a restriction. The applicant regarded that limitation as violence of his fundamental rights guaranteed by the Directive 2000/78 (which did not enter into the force that time on the reason of the transition period). The German government denied the fact of discrimination arguing that the fixed-time contracts in that cases was a special guarantee. The Court of Justice announced that such contracts could become a real danger for a worker depriving him of the stable employment. As well, the ECJ denied the justification arguments presented by Germany. Being responsible for the state of justice in the national states, the Court called the judges to ensure the provisions of the EU law for the legal defense of the individuals when there was a conflict with the national law even when the EU legislation act have not come into force yet. The case Mangold is not a unique case. The other similar ones followed it where the Court applied that specific approach. The most salient among them are the case Kьcьkdeveci (2010) and case Prigge (2011). However, the sphere of the private labour law does not come down to the equality norms. There are four fundamental freedoms in the EU mentioned above: free movement of capital, services, goods and persons. The last one is the pillar of the labor sphere. There are several legal issues connected with free movement of persons but the notion of the `worker' is the most meaningful. However, as with the concept `pay' this term was not defined in the founding Treaties, secondary legislation. In order to avoid the misuse of this gap by the Member States from the very beginning (especially towards the migrant workers and certain categories of persons), the Court pointed out that the notion `worker' is under the EU competence as well as its interpretation and composition. The same time the notion `worker' is multifunctional and can't be applied universally in any sphere of the European law. That way the Court recognized that logically there was no possibility to provide the single understanding of the term `worker', the concept should be varied through areas of its application. For instance, in the same case the Court recognized that any person self-employed under the national law had a chance to be classified as a worker in the framework of the article 141 EC Treaty (119 EEC Treaty) in accordance with the objective circumstances. In the case Antonissen the Court granted some benefits of the `worker' to the job-seeker in the context of the fundamental freedom of movement. By identifying the overarching concepts on the level of the EU the Court made a pure rational choice that would allow avoiding the possible constraints in the further development of the Union. Thus, the Court fulfills the role of a policy-maker combining two roles by formulating the decision and giving a resonance effect to it later. Equally impressive was the Court's participation on the issue of the recognition of the professional qualifications as it can be evaluated as applied to the free movement of workers. The article 57 of the Treaty of Rome (article 53 TFEU) provided an obligation for the European Parliament and the Council to adopt the Directives subjected to the mutual recognition of `diplomas, certificates and other evidence of formal qualifications' (art. 57 Treaty of Rome). However, the measures of the Council were of the fragmentary character mostly devoted to the so-called white collars professions (Hatzopoulos, 2013). The gap in the legislature, necessity to resolve the disputes and the lack of the initiative from the Council's side has lead to the activation of the Court of Justice in that sphere. The instrumental role of the Court has developed into the numerous cases raising the questions of civil and academic aspects of equivalence recognition of diplomas, criteria of equivalence recognition, partial correspondence of diplomas, status of postgraduate title, etc. 'Motivated' (or rather forced) by the Court's decisions and the Commision, the Member States within the Council worked out the general system for the recognition of the diplomas. Following the progressive case-law practices (i.e. question of non-regulated professions), the Directive was modified several times and still needed to be improved. Hereafter the combination of the settled case law and the secondary legislation have resulted in the unmanageable 'Bologna process' inter alia involved the non-Member States. The sphere of the ECJ influence and activity has even spread beyond the boundaries of the EU. Due to its functions, resources and authority the Court has a possibility to be ahead of the Members States and other European institutions. Enjoying the privileges giving by the status of a powerful actor and going out the frames of its competence, the Court of Justice moved the policy of the EU in the favorable direction parallel with its own interests as a supranational institution. The future of the European Labour Law is strictly connected with the social policy. The contribution of the Court of Justice into the Labour Law development is notable by building the system of human rights protection not only on the EU level but within the national legal orders of the Member States. By its actions the Court of Justice constructed the framework with an accent on the Social model and Social dialog. In comparison with the Migration sphere, in that case the impact of the ECtHR on the case law of ECJ was minimal as the European Convention on Human Rights itself is not aimed on the prior defense of the workers' rights. However, due to the high level of the primary and secondary legislation the European Union with the help of the ECJ can offer its own legal groundwork for the international community. The EU has all the inclinations of the potential leader in this sphere (Bercusson, 2008).