The memorandum shows that:

The legal basis stated in article 153(1)(b) TFEU on working conditions cannot include pay, since a distinction is made between pay and working conditions in both the 1989 Community Charter of the Fundamental Social Rights of Workers, a number of EU directives and in ILO conventions. In the Community Charter, ensuring fair remuneration for workers is described in articles 4-6 under “Employment and remuneration”, and working conditions are mentioned in articles 7-9 under “Improvement of living and working conditions”.

Articles 151 and 152 TFEU establish that the union and the member states, “shall take account of the diverse forms of national practices, in particular in the field of contractual relations” and “the union recognises and promotes…the diversity of national systems”.

The proposals in the proposed directive are directly contrary to these two articles in the Treaty. This is further substantiated by the fact that the right to form trade unions and to bargain collectively follow from the European Social Charter (art. 6), the Charter on Fundamental Rights of the European Union (art. 28) and a number of ILO conventions (especially no. 87 and no. 98). Hence, this is not a right which is provided by the governments.

Finally, it is emphasised that, based on the Lisbon Treaty’s protocol on the application of the principles of subsidiarity and the annex to the conclusions of the Presidency from the European Council meeting in Edinburgh on 12 December 1992, the proposed directive is not in accordance with the principle of subsidiarity.

The conclusion is therefore that the treaties do not provide for the proposed directive as:

1. The legal basis stated in article 153(1)(b) on working conditions cannot include pay.
2. The first paragraph of article 151 and the provision in article 152 on taking into account the diversity of national systems have not been observed.
3. The principle of subsidiarity has not been complied with based on the grounds listed. 

The memorandum does not deal with the issues touched on in the memorandum of Doctor of Laws, Jens Kristiansen, prepared on behalf of CO-Industri (the Central Organisation of Industrial Employees). This memorandum deals with the issues that are not discussed in Jens Kristiansen’s memorandum.

Jens Kristiansen reaches the same conclusion regarding the legal basis and the principle of subsidiarity and sets out, among other things, that “the rules of the proposal interfere with wage setting by aligning wages and wage levels in the member states. The proposal thus applies to “pay” and therefore falls outside the jurisdiction of the EU in accordance with article
153(5) TFEU “ .

Read the memorandum here.