A question for… Jean-Philippe Lhernould, Professor of Private Law at the University of Poitiers

Do you think the Advocate General’s legal reasoning is sound, in the case of Denmark v. the EU legislature, challenging the minimum wage directive ?
He sets out a very detailed opinion, giving extensive consideration to the arguments put forward by all parties. It’s based on an in-depth analysis of European case law, the text of the directive and all of the sources mobilised.
In the end, it’s hard not to give credit to his reasoning, which boils down to taking the view that a directive that directly interferes in the area of pay is incompatible with the ‘pay’ exclusion in Article 153 paragraph 5 TFEU. Actually, this is the case with Directive 2022/2041, the object of which is to regulate pay. The fact that firstly, the EU legislature has restricted itself to adopting vague requirements, and secondly, the directive does not prejudice the social partners’ autonomy, doesn’t change the reality of this object. Likewise, stating that the directive only defines measures of a procedural nature, relating to setting wages, can’t disguise the fact that it’s intended to have an effect on wage levels.
Admittedly, the Advocate General points out that the exception of Article 153 paragraph 5 should be subject to strict interpretation, but the case law underlying this affirmation has been developed in connection with directives (on fixed-term contracts, part-time working, etc.) that apply only indirectly to pay. However, his opinion emphasises that a strict interpretation of the exception should not go so far as to deprive it of any useful effect. More broadly, the Advocate General regards a Community instrument that directly interferes in the area of wages as being incompatible with the exception in Article 153 paragraph 5, if its object is to regulate pay, regardless of the severity or flexibility of such regulation.
It’s impossible to know whether the Court will follow his opinion. Several options are on the table: full or partial (collective bargaining provisions) annulment; annulment with delayed effect, accompanied by the proposal of a different legal basis; or no annulment. It’s true that the directive has no tangible effect on Danish and Swedish laws, but that won’t be enough to warrant a rejection of the action for annulment. Ultimately, what must be decided is a constitutional matter, linked to the division of powers between the Union and its Member States.