Why the Directive on Adequate Minimum Wages does Fit within EU competence: A Response to the Advocate General's Opinion

Abstract

Key points:
• The decision of the Court of Justice of the European Union (CJEU) on the case for the annulment of Directive (EU) 2022/2041 on Adequate Minimum Wages, filed by Denmark and later joined by Sweden, is expected during May 2025. In the meantime, the Advocate General has issued an opinion concluding that the Directive should be annulled due to its incompatibility with Article 153(5) of the Treaty on the Functioning of the European Union (TFEU), specifically regarding the exclusion of competence over ‘pay'.
• The Advocate General's opinion is primarily based on a rather literal reading of the Directive's text and Article 153 TFEU: such a restrictive reading does not align with the objectives pursued by the Directive within the framework of the Union's social policy goals. Had these objectives been properly considered, the Advocate General would have recognised that the Directive does not interfere with the scope of the pay exclusion. This is even more so in the light of the CJEU's own case law.
• The additional arguments put forward in the Danish case – claiming incompatibility with the further exclusion of competence regarding the right of association and arguing that the Directive should not have been adopted on the basis of Article 153(1)(b) – are also deemed unfounded. This has been acknowledged by the Advocate General.
• Should the Court uphold Denmark's case and the Advocate General's opinion, this decision would not only mark a break from the Court's previous stance but could also have repercussions on the future of the EU social policy agenda.

Keywords: minimum wage, EU Directive, labour law, EU law, EU Court of Justice, EU countries