Confronting the Competence Conundrum of an EU Directive on Minimum Wages: In Search of a Legal Basis. College of Europe Policy Brief December 2019.

The new European Commission has boldly announced its plans to deliver an EU minimum wage legal measure within the first 100 days in office. This commendable ambition raises the much-contested question of competence in this field. Under Article 153 TFEU, the EU’s main social legal basis, the issue of ‘pay’ is excluded from the pro-visions of this Article (para. 5). This seems to prevent the adoption, on this legal basis, of a binding EU measure that directly fixes the level of mini-mum wages in the Member States. Another, and oft-overlooked social legal basis can be found in Article 175 TFEU on economic, social and territorial cohesion. Article 175 TFEU may of-fer an alternative route to adopt a fully-fledged minimum wage directive to diminish the social and economic disparities that are hampering a harmonious development of the Union in both economic and societal terms. The main advantage offered by Article 175 TFEU, as compared to the other contending alternative legal basis found in the flexibility clause of Article 352 TFEU, is that it allows the EU to act through the ordinary legislative procedure rather than requiring unanimity while maintaining a social focus. Furthermore, the objective of cohesion policy seems the most credible alternative, compared to the general harmonisation clause for the internal market under 115 TFEU or the free movement of workers under Article 46 TFEU